Section 438 Cr.P.C; P. Jayarajan Vs. State [Kerala High Court, 11-02-2016]

Unlawful Activities (Prevention) Act, 1967 Section 43-D(4) – Application for anticipatory bail – Maintainability of – Simply because an offence under the UAP Act is alleged, it cannot be said that the bar under Section 43-D(4) would apply. There must be materials prima facie to found the allegation against the accused that he committed the offence under the UAP Act. If that test is over, the bar under Section 43-D(4) will apply and the application for anticipatory bail will not be maintainable.


IN THE HIGH COURT OF KERALAAT ERNAKULAM

K.T.SANKARAN & K.P. JYOTHINDRANATH, JJ.

Crl.A. No.125 of 2016 (C)

Dated this the 11th day of February, 2016

AGAINST THE ORDER IN CRL.M.C. NO.190/2016 OF THE SESSIONS COURT, THALASSERY, DATED 30-01-2016. CRIME NO.RC.10(S)/2014/CBI/SCB/TVPM IN CBCID CR.141/CR-HHWIII/KKD/14/KANNUR). (CRIME NO.780 OF 2014 OF KATHIRUR POLICE STATION

APPELLANT/PETITIONER/ACCUSED NO.25

P.JAYARAJAN, AGED 62 YEARS, S/O.KUNHIRAMAN DISTRICT SECRETARY CPI(M), AZHEEKODAN SMARAKA MANDIRAM-670 002 RESIDING AT KAIRALI, POOKODU PO, PATTIYAM AMSOM KONAGATTA DESOM, THALASSERY TALUK KANNUR DISTRICT-670 643.

BY ADVS. SRI.M.K.DAMODARAN (SR.) SRI.K.GOPALAKRISHNA KURUP (SR.) SRI.ALAN PAPALI SRI.K.VISWAN SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S. SRI.A.VELAPPAN NAIR SRI.ANTONY ROBERT DIAS SRI.J.VIMAL

RESPONDENTS/RESPONDENT/COMPLAINANT

STATE, THE CENTRAL BUREAU OF INVESTIGATION SPECIAL CRIME BRANCH, THIRUVANANTHAPURAM REPRESENTED BY THE STANDING COUNSEL HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.

R1 BY STANDING COUNSEL FOR CBI SRI.P.CHANDRASEKHARAN PILLAI. BY PUBLIC PROSECUTOR SMT.BINDHU GOPINATH ADDL R2 BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY

JUDGMENT

K.T.Sankaran, J.

The Criminal Appeal is filed by accused No.25 in RC.10(s)/ 2014/CBI/SCB/TVPM on the file of the Court of Session, Thalassery, by which the learned Sessions Judge dismissed the application for anticipatory bail filed by accused No.25 under Section 438 of the Code of Criminal Procedure. Accused No.25 (P.Jayarajan) had filed Crl.M.C.No.989 of 2015, on the file of the Court of Sessions, Thalassery, for anticipatory bail. But, that application was dismissed by the learned Sessions Judge as per the order dated 24.7.2015. Again, accused No.25 filed Crl.M.C.No.83 of 2016 for the same relief and the learned Sessions Judge dismissed the same as per the order dated 19.1.2016. At the time when the first and second applications were dismissed by the learned Sessions Judge, P.Jayarajan was not arraigned as an accused in the case. Later, as per the report dated 21.1.2016 filed by the Central Bureau of Investigation (hereinafter referred to as ‘CBI’), P.Jayarajan was arraigned as accused No.25. Thereafter, he filed Crl.M.C.No.190 of 2016 and it was dismissed by the court below as per the order dated 30.1.2016, which is under challenge in this Criminal Appeal. 2. On 1.9.2014, the incident alleged in the case occurred, in which a person (Elamthottathil Manoj) was murdered and another (Pramod) was seriously injured. In respect of the incident, Crime No.780 of 2014 was registered at Kathirur Police Station. Subsequently, investigation of the case was taken over by the CBI. The CBI re-registered the case on 28.10.2014 and took over investigation of the case on 5.11.2014. On 7.3.2015, the CBI filed a final report dated 6.3.2015, in which accused Nos.1 to 19 were arraigned as accused. Later, the CBI filed a report dated 9.7.2015 and accused Nos.20 to 24 were added. As stated earlier, the appellant (P.Jayarajan) was arraigned as accused No.25 as per the report dated 21.1.2016 filed by the CBI. The offences alleged against the accused are under

# Sections 120B read with Sections 143, 147, 148, 201, 212, 324, 307 and 302 read with Section 149 of the Indian Penal Code

# Sections 3 and 5 of the Explosive Substances Act

# Section 27 of the Arms Act

and

# Section 16(a) read with Section 15(1)(a)(i) and 19 of the Unlawful Activities (Prevention) Act

(hereinafter referred to as the ‘UAP Act’). It is submitted by the learned counsel appearing for the CBI that subsequently Section 18 of the UAP Act was also included as an item of offence against the accused.

3. The first application for anticipatory bail filed by the appellant was dismissed by the court below on 24.7.2015, holding that Section 43-D(4) and 43-D(5) of the UAP Act would be a bar to the maintainability of the application for anticipatory bail. The second application for anticipatory bail was dismissed by the court below on 19.1.2016 stating that the earlier application was dismissed on the ground of the bar under Section 43-D(4) and 43-D (5) of the UAP Act and the Court cannot review its own order. It was also held that there was no change of circumstances. In the present order which is under challenge, the court below held that in view of the orders passed earlier, the Court would not be justified in allowing the application as the orders cannot be reviewed in the third application.

4. Since it was likely that the arguments by both sides might be on the basis of the maintainability of the third application for anticipatory bail, we suggested to both sides that the matter can be disposed of on the merits rather than on the ground of technicalities. By adopting such a method, the question whether the appellant is entitled to anticipatory bail, whether there is a bar under Section 43- D(4) and whether the application can be entertained in view of the provisions of Section 43-D(5) can be considered independently. By adopting that method, the apprehension of the appellant that his bail application was not considered on the merits even after the CBI filed a report dated 21.1.2016, can be obviated. Accordingly, both sides argued the case in detail on the merits of the contentions and not on technicalities. The brother of deceased Manoj, who filed an application to get himself impleaded in the proceedings and which was allowed as unopposed, also got an opportunity to make his submissions.

5. The final report dated 6.3.2015 reveals the following facts: Elamthottathil Manoj, aged 42, was working as Physical Training Instructor of Rashtriya Swayam Sevak Sangh (RSS) and he was involved in several criminal cases. He was found guilty for attacking the appellant herein and he was sentenced to undergo imprisonment for ten years. The appeal filed by Manoj against the conviction and sentence was pending before the High Court and as the sentence was suspended, he was released on bail. Even during 2009, there was an attempt to murder Manoj by hurling a bomb on his Maruti van. In respect of that incident, Kathirur police registered Crime No.105 of 2009 under Section 307 IPC and Sections 3 and 5 of the Explosive Substances Act. The accused in the present case are office bearers or sympathisers of CPI(M). Accused No.1 Vikraman is a close associate of P.Jayarajan (appellant), District Secretary of CPI(M) and former President of Patyam Social Service Society. During the middle of 2014, there was a seepage of CPI(M) party workers of Kannur District to BJP and RSS. To contain the same and to boost the morale of CPI(M) workers, Vikraman and others hatched a conspiracy to eliminate Elamthottathil Manoj. They also decided to terrorise the people. Necessary lethal weapons, bombs and manpower were arranged with the assistance of a group of CPI(M) workers from Koothuparamba, Maloor and Kathirur areas in Kannur District. In August 2014, the accused persons waited for Manoj on three or four occasions to commit his murder. But, they did not succeed in their attempts. On 1.9.2014 by about 9.30 a.m., under the leadership of Vikraman, the other accused persons formed themselves into an unlawful assembly, armed with deadly weapons like country bombs, koduval, dagger etc. and waited in a house under construction near the scene of occurrence for the arrival of Manoj. They also decided to strike terror in the minds of the people and RSS workers. Necessary arrangements were made to inform the movements of Manoj. At about 10.58 a.m., on getting information that Manoj had started from his residence, the accused persons who were waiting in and around the house under construction near the scene of occurrence, rushed towards the road and took positions on the sides of the road to attack and kill Manoj and to terrorise the public. Manoj accompanied by Pramod arrived at the scene of occurrence in a blue Maruti van. Vikraman (accused No.1) hurled a country bomb aimed at the vehicle. The bomb exploded and as a result, the Maruti van got damaged and Manoj who was driving the vehicle, lost control. There was lot of smoke and smell of gunpowder in the air and the sound of the blast could be heard for a distance of about two kilometers. Hearing the sound of explosion, the people of the locality got frightened. Some among the accused rushed towards the vehicle and covered it from the front and rear. Manoj, who was injured by the blast, tried to hold the door of the vehicle from being opened. Accused No.4 broke the wind shield of the vehicle with the long blade of the weapon and inflicted a stab injury on the chest of Manoj. A cut injury was also inflicted on his right wrist. The accused persons opened the door of the vehicle, dragged Manoj out and inflicted several injuries on the vital parts of his body. Some of the accused persons guarded both the entries of the road to prevent passengers from entering into the scene of occurrence. When the victim was almost dead, Nijith @ Nith slit the throat of Manoj with a steel dagger to ensure his death. Vikraman (accused No.1) also sustained injuries as a result of the bomb explosion. After murdering Manoj, accused No.16 exploded one more bomb in the public road with an intention to strike terror in the minds of the people in the locality and also the RSS workers. The explosion caused a panic situation in the area. Some of the women fainted. The women and children cried aloud. Some people took shelter in their bathroom.

6. In the final report dated 6.3.2015, the investigating agency stated that there were more accused persons involved in the criminal conspiracy and they were yet to be identified. It was stated that the investigation would be continued to identify and apprehend the remaining accused.

7. Accused Nos.3, 11 and 12 were granted regular bail by a Division Bench of this Court in Crl.A.Nos.346, 347 and 383 of 2015. Accused No.18 was granted regular bail by the trial court. Accused No.20 moved for anticipatory bail and on finding that only bailable offences were made against him, he surrendered before Court and he was released on regular bail. Accused Nos.22 to 24 were granted default bail under the proviso to Section 167(2) of the Code of Criminal Procedure, as per the judgment in Crl.A.No.50 of 2016 dated 19.1.2016. Accused No.21 was granted regular bail in Crl.A.No.846 of 2015.

8. Accused No.1 filed Crl.M.C.No.6110 of 2014 to quash the FIR in so far as it relates to the offence under the UAP Act. A learned single Judge of this Court dismissed the Crl.M.C., holding that prima facie the offence under Section 15(1)(a)(i) of the UAP Act punishable under Section 16(1)(a) of the UAP Act is made out.

9. In the report dated 21.1.2016 filed by the CBI, it was stated thus:

“That the murder of Elamthottathil Manoj was a well-organized political murder and it is not an individual instance under sudden provocation. There was no personal motive for other accused persons involved in the case to kill Elamthottathil Manoj except Shri.P.Jayarajan (A-25). Investigation revealed that there were instances of CPI(M) sympathisers/party workers leaving the party and joining the BJP/RSS. Shri.Elamthottathil Manoj was one of the leader who was instrumental in attracting people to join BJP/RSS. Specifically for instance, a function was organized on 24 th August, 2014 at Kannur to receive about 500 CPI (M) party workers who joined BJP. In order to contain and boost the morale of CPI(M) party workers and to prevent them from deserting the party, a criminal conspiracy was hatched among A-1 to A-25 to eliminate Elamthottathil Manoj, an RSS worker who is involved in many criminal cases against CPI(M) leaders, including the murder attempt on Shri.P.Jayarajan, the present Kannur District Secretary of CPI(M). They also decided to eliminate Manoj and also to terrorise the people with the assistance of Vikraman A-1, a known criminal and a member of CPI(M) party, hailing from Kizhakke Kathirur, the native place of Shri.P.Jayarajan. In pursuance of the said criminal conspiracy Vikraman A-1 organized the crime by arranging necessary lethal weapons, bombs and manpower. Shri.Vikraman (A-1) an earlier driver with A-25 is a close confident of A-25. During the time of incident, Shri.Vikraman (A-1) was a peon at Pattiyam Service Co-operative Bank, Thalassery. In furtherance of conspiracy and with the help of A-25, A-1 had arranged a group of CPI(M) workers, from Koothuparambu, Maloor and Kathirur area in Kannur District to execute the crime. In this case, the accused persons involved in the crime are mostly outsiders and do not have any personal enmity or animosity with Elamthottathil Manoj to take the life of Elamthottathil Manoj. The background of the case revealed that none other than Sri.P.Jayarajan, the District Secretary of CPI (M), Kannur has personal enmity with Elamthottathil Manoj and collective political enmity was under the leadership of A-25. In short, Shri.P.Jayarajan has both personal vengeance as well as political vengeance to eliminate Elamthottathil Manoj.”

10. Sri.M.K.Damodaran, the learned senior counsel appearing for the appellant submitted that either in the final report or in the application dated 21.1.2016, there is no allegation which would really attract the offence under the UAP Act. If so, the bar under Section 43-D(4) may not apply. The learned senior counsel invited our attention to the preamble of the UAP Act and submitted that the Act is not intended to prevent or to deal with the activities similar to those which are alleged by the prosecution in the present case. The magnitude of the unlawful activities contemplated by the Act are much more serious and it does not apply to a case where an offence of murder was committed and an individual was murdered. The learned senior counsel invited our attention to page 38 of the final report dated 6.3.2015 and submitted that the UAP Act is not intended to cover such activities. He referred to Section 15 of the UAP Act and submitted that the expression “in the people or any section of the people in India” really means the people at large and not one or a few individuals. It is submitted that Section 15 refers to the unity, integrity, security, economic security or sovereignty of India and that is the prime object sought to be achieved; and the Act is not intended to deal with individual criminal activities which do not have any such impact. Sri.M.K.Damodaran also submitted that the word “bombs” occurring in Section 15(1)(a) of the UAP Act does not include a country bomb which does not have much destructive capacity.

11. Sri.K.Gopalakrishna Kurup, the learned senior counsel, submitted that the dominant intention must be to strike terror in order to attract Section 15 of the UAP Act and an act which leads to terror in the course of committal of a murder is not what is intended to be covered by Section 15. He relied on paragraph 15 of the decision of the Supreme Court in

# Hitendra Vishnu Thakur and others v. State of Maharashtra and others ((1994) 4 SCC 602).

12. Sri.M.K.Damodaran, the learned senior counsel submitted that death was not caused due to the alleged terrorist act and, therefore, Section 16(1)(a) of the UAP Act, which provides for imprisonment with death or imprisonment for life, is not attracted. The learned senior counsel relied on the decisions of the Supreme Court in

# Prakash Kumar @ Prakash Bhutto v. State of Gujarat (AIR 2005 SC 1075)

# Som Mittal v. Government of Karnataka ((2008) 3 SCC 753)

and

# Subhash @ Dhillu v. State of Haryana (2015 (1) S.C.D. (Cri.) 630).

The learned senior counsel submitted that mere allegation is not sufficient to attract the bar under Section 43-D(4) of the UAP Act. There must be concrete materials to arrive at a conclusion that the offence under the UAP Act is made out. It is submitted that the report dated 21.1.2016 does not show any material to arrive at the prima facie satisfaction that the ingredients of the offence alleged against the appellant under the UAP Act are satisfied. It is submitted that from 1997 onwards the appellant is being given police protection and one Assistant Sub Inspector of Police and a Civil Police Officer would always be with him. It is submitted that in these circumstances, it is unthinkable that the appellant would indulge himself in any conspiracy as alleged or indulge himself in any terrorist activity. It is also pointed out that the appellant was interrogated by the CBI for nearly six hours and that too after filing the final report implicating accused Nos.1 to 19.

13. Sri.P.Chandrasekharan Pillai, the learned Standing Counsel appearing for the CBI, submitted that there are enough materials to arrive at the prima facie satisfaction that the ingredients of the offence alleged against the appellant under the UAP Act are satisfied. It is submitted that the bomb which was hurled on the first occasion hit on the Omni van driven by Manoj and the vehicle was damaged. The deceased could not continue to drive the vehicle and taking that opportunity, he was attacked and murdered. The bomb used in the case was not an ordinary country bomb of less magnitude and destructive potential. The final report indicates that the sound of bomb blast was heard by the people of the locality residing about two kilometers away. Sri.Chandrasekharan Pillai made a distinction between the matters to be considered under Section 43-D(5) and those to be considered under Section 43-D(4) of the UAP Act. Section 43-D(5) applies when the accused is in judicial custody whereas Section 43-D(4) would apply to a stage when the accused was not arrested. At the stage of Section 43-D(4), the Court is not expected to consider in depth the parameters to be considered while dealing with a regular bail application and consider the applicability or otherwise of the proviso to Section 43-D(5).

14. Advocate S.Rajeev, the learned counsel appearing for the impleaded party, referred to pages 24 and 25 of the final report and submitted that there are clear allegations with respect to the criminal conspiracy. Charge No.1 in the final report occurring at pages 39 to 44 also would give a clear picture as to the allegations regarding criminal conspiracy. Sri.Rajeev submitted that in the bomb blast, Manoj (the deceased) as well as Pramod, the co-passenger, sustained injuries. Even the first accused sustained injuries as a result of the blasting of bomb. It is submitted that even after the murder of Manoj, the accused hurled another bomb to terrorise the people. The learned counsel referred to injury No.18 in the postmortem report, which reads as follows:

“18. Multiple small abrasions and contusions (most of them less than 1 cm in diameter) interspersed with punctured lacerations of variable size and depth, many of them lodging small broken pieces of glass, suggesting the typical ‘peppering effect’ of blast injuries were seen on the following parts of the body:-

a) Whole of fact – in addition to the peppering effect, the skin of the fact was darkened (tattooing effect due to dust particles). Many small pieces of glass were found inside the punctured lacerations, especially in the lips and nose. Right eye ball was collapsed due to a punctured laceration in the sclera, however no foreign body could be recovered from it. Eyellas were lacerated. Skin of upper neck was free of peppering effect.

b) Back of right palm, wrist and forearm, outer aspect of upper arm was also involved. A Punctured lacerated wound measuring 2×1 cm seen on the back of forearms, 4 cm below the elbow was dissected and a broken glass piece was recovered from it.

c) Front of left shoulder, upper arm and forearm. A punctured laceration 1.2×1 cm on the middle of forearm was dissected and another piece of glass was recovered from it.

d) Front of chest; the peppering effect was not as dense as on the face of upper limbs.

e) Front and inner aspect of right thigh, knee and leg.

f) Inner aspect of left thigh and knee. (The peppering effect was minimum on the thighs and legs; it was completely absent on the back of trunk.)”

15. Sri.Rajeev submitted that while dismissing Crl.A.No.728 of 2015 filed by accused Nos.9 and 10, a Division Bench of this Court held in paragraph 17 of the judgment that the question whether the offence under the UAP Act would be attracted to the case is covered by the decision of the learned single Judge in

# Vikraman v. State of Kerala (2015 (1) KHC 611).

In that decision, the contention of the first accused that the offence under the UAP Act would not be attracted was repelled. The Division Bench held that taking a view different from the view taken in

# Vikraman v. State of Kerala (2015 (1) KHC 611)

was not called for. Sri. Rajeev relied on the decision of the Supreme Court in

# Bechu Das v. State of Bihar and others ((2014) 3 SCC 471= 2014 KHC 2424)

where the Supreme Court considered the scope of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

16. To properly comprehend the contentions put forward by the parties, it would be appropriate to refer to sub-sections (4) and (5) of Section 43-D of the UAP Act, which read thus:

# 43-D. Modified application of certain provisions of the Code

…….

(4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act.

(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”

17. In

# Hitendra Vishnu Thakur and others v. State of Maharashtra and others, (1994) 4 SCC 602

while dealing with the cases under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the ‘TADA’), the Supreme Court held thus:

“13. We would, therefore, at this stage like to administer a word of caution to the Designated Courts regarding invoking the provisions of TADA merely because the investigating officer at some stage of the investigation chooses to add an offence under same (sic some) provisions of TADA against an accused person, more often than not while opposing grant of bail, anticipatory or otherwise. The Designated Courts should always consider carefully the material available on the record and apply their mind to see whether the provisions of TADA are even prima facie attracted.”

18. In

# Bechu Das v. State of Bihar and others, (2014) 3 SCC 471 : 2014 KHC 2424

the Supreme Court referred to the decision in

# Vilas Pandurang Pawar and another v. State of Maharashtra and others, (2012) 8 SCC 795

and held that though Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act creates a bar for invoking Section 438 of the Code of Criminal Procedure, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, “if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail”. In Bechu Das’s case, it was further held by the Supreme Court thus:

“6. ….. The scope of S.18 of the SC/ST Act read with S.438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under S.438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.”

19. In the light of the decisions of the Supreme Court referred to above, we are expected to consider the question whether the materials available in the case would prima facie make out sufficient ground to found an allegation of having committed an offence under the provisions of the UAP Act.

20. As directed by us, the case diary files were produced by the CBI and we have carefully perused the same. We will discuss about the same later in this judgment.

21. Dealing with a case under the TADA, a Constitution Bench of the Supreme Court in

# Prakash Kumar @ Prakash Bhutto v. State of Gujarat, AIR 2005 SC 1075

held that the term ‘terrorism’ has not been defined under the Act and relying on the decision of the Supreme Court in

# Hitendra Vishnu Thakur and others v. State of Maharashtra and others, (1994) 4 SCC 602

the Constitution Bench held thus:

“11. The term ‘terrorism’ has not been defined under the Act. This Court in

# Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602

held in paragraph 7 (SCC p.618) as under:–

“7. ‘Terrorism’ is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised society. ‘Terrorism’ has not been defined under TADA nor is it possible to give a precise definition of ‘terrorism’ or lay down what constitutes ‘terrorism’. It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or “terrorise” people and the society and not only those directly assaulted, with a view to disturb even tempo, peace and tranquility of the society and create a sense of fear and insecurity. …..”

22. In

# Muhammed Navas v. Station House Officer, 2009 (3) KLT SN 64 (C.No.62)

a learned single Judge of this Court (Justice K.T.Sankaran) held thus:

“Terrorism is an evil affecting the life and liberty of peace loving people. Terrorism has no barriers. It may strike anybody at any time. Any amount of precautionary measures and security arrangements may prove futile to combat terrorism. Fundamental right to individual liberty is certainly valuable. But when it is pitted against the life and liberty of the people at large, it becomes insignificant.”

23. In

# Kamarudheen v. S.H.O., Muvattupuzha Police Station, 2010 (4) KLT SN 4 (C.No.5)

a learned single Judge of this Court (Justice V.Ramkumar) held that:

“Terrorism is the premeditated, deliberate and systematic murder, mayhem or violence including use of force or violence against property, attended with threats and intimidation of innocent people in furtherance of political or social objectives, with a view to create fear or coerce a Government or the civilian population or any segment thereof to modify their behaviour or policies. The most important result of the use of violence is not merely the physical and mental damage of the victim but also the prolonged psychological effect it produces or has the potential of producing on the society as a whole. If the object of the activity is to disturb harmony of the society or to terrorise people and the society with a view to disturb even the tempo or tranquility of the society and if a sense of fear and insecurity is created in the minds of a section of the society or the society at large, then it will, undoubtedly, be held to be a terrorist activity.”

24. Section 15 of the UAP Act defines ‘terrorist act’. For the purpose of this case, it is sufficient to quote Section 15(1)(a) alone, which reads as follows:

# 15. Terrorist act

(1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country, —

(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause —

(i) death of, or injuries to, any person or persons; or

(ii) loss of, or damage to, or destruction of, property; or

(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or

(iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or

(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or”

25. Section 15 will be attracted whenever a person does an act with intent to strike terror or likely to strike terror in the people or any section of the people in India. For that purpose, use of bombs, dynamite or other explosive substances or inflammable substances or firearms or the substances mentioned in sub-clause (a) should be made. What is intended to be caused or likely to be caused is death or injuries to any person or persons or loss or damage to or destruction of property under clauses (i) and (ii). The word ‘bomb’ is not defined nor any standard is fixed for the destructive potential of the same so as to attract Section 15. We are not impressed with the argument that a country bomb would not come within the meaning of the word ‘bomb’ occurring in Section 15 of the UAP Act. Bomb is a bomb whether it is country bomb or factory bomb or whether it is made in an armament factory. The object of using a bomb is to cause death or injuries or loss or damage or destruction of property. In the present case, a bomb was hurled and blasted before Manoj was attacked. After the murder of Manoj, another bomb was hurled and exploded. The materials available in record would show that the allegation is that the sound of explosion was heard to a distance of about two kilometers from the place of occurrence. It is not necessary that a terrorist act within the meaning of Section 15 should be an act like the one in the parliament attack case or the Bombay bomb blast case. No standard of destructive potential can be fixed to consider whether any particular act would constitute a terrorist act within the meaning of Section 15. If the parliament thought that such a standard should be fixed for the bomb or other explosives or the destructive potential of the same or the magnitude of destruction, it would have been provided and fixed. In the absence of the same, a distinction cannot be made between a country bomb or otherwise. We are not inclined to accept the contention of the learned senior counsel that a country bomb would not come within the definition of ‘bomb’ under Section 15 of the Act.

26. It would be sufficient if death or injury is caused to any person or persons or loss or damage or destruction of property is occurred in order to attract Section 15 of the UAP Act. We cannot interpret Section 15 to mean only large scale incidents of loss of hundreds or thousands of lives or destruction of property worth crores of Rupees. No such standard is prescribed in Section 15. Any activity which attracts the ingredients of Section 15 would be a terrorist act notwithstanding the dimension of the same.

27. The contention that no death is caused as a result of the hurling of the bomb, is also irrelevant. The allegation reveals that injuries were caused to Manoj, Pramod and even accused No.1 as a result of the explosion of the bomb. In order to attract Section 15, it is not necessary that death should be caused as a result of the explosion of bomb. It is sufficient if injury is caused or damage or destruction of property is caused.

28. The expression “in the people or any section of the people in India” occurring in Section 15(1) does not mean that thousands of people should be the affected persons. It is sufficient if a small section of the people were to be affected. What is aimed at is the prevention of terrorist activities and, for that purpose, the terrorist act is defined. We are not inclined to accept the contention of the learned counsel for the appellant that the activity alleged against the accused does not satisfy the definition of ‘terrorist act’ within the meaning of Section 15 of the UAP Act.

29. The distinction between Section 43-D(4) and proviso to Section 43-D(5) is clear. For the purpose of attracting Section 43-D (4), it is sufficient if the Court is satisfied that prima facie there are allegations to attract the offence under the UAP Act. Under the proviso to sub-section (5) of Section 43-D, the Court, on a perusal of the case diary or the report made under Section 173 of the Code, has to arrive at an opinion that there are reasonable grounds for believing that the accusation against the accused is prima facie true. If such a conclusion is arrived at, the accused person shall not be released on bail or on his own bond. Under Section 43-D(4), it is not necessary for the Court to peruse the case diary statement, though the Court is not powerless to do so. The Court is not expected to arrive at an opinion as mentioned in the proviso to subsection (5) of Section 43-D, while dealing with an application for anticipatory bail and considering the question whether the bar under Section 43-D(4) is attracted. A prima facie satisfaction by the Court that there are materials to found the allegations and the involvement of the accused in the commission of the offence under the UAP Act is sufficient to attract the bar under Section 43-D(4). At the stage of considering the bar under Section 43-D(4), the final report will not be there. Even the investigation may be at the initial stage. Only the allegations levelled against the accused would be available. But simply because an offence under the UAP Act is alleged, it cannot be said that the bar under Section 43-D(4) would apply. There must be materials prima facie to found the allegation against the accused that he committed the offence under the UAP Act. If that test is over, the bar under Section 43-D(4) will apply and the application for anticipatory bail will not be maintainable.

30. As stated earlier, we have perused the case diary files in six volumes. We are satisfied that prima facie there are materials to found the allegations levelled against the appellant. The stage has not reached to arrive at a conclusion as to whether the allegations levelled against the appellant are true. That stage comes later. Any opinion expressed either way would cause prejudice either to the prosecution or to the defence. Therefore, we abstain from expressing anything on the merits of the case or regarding the allegations made against the appellant.

31. In the Memorandum of appeal, it is stated that the appellant is a member of the CPI(M) State Committee and a senior leader of the said political party. He was also the Secretary of the Parliamentary Party of CPI(M) in the year 2006-2011. The appellant was elected as a member of the Kerala Legislative Assembly from Koothuparamba Assembly Constituency for the period from 2001- 2006 and again from 2006-2011. It is also stated that the appellant is now physically handicapped and he is suffering from various physical ailments due to the severe and grievous injuries sustained by him in the attack by his political opponents, namely, the BJP and RSS men. It is further stated that the appellant is suffering from acute cardiac ailments and he had recently undergone Angioplasty surgery on 9.7.2015. It is stated that the appellant is the Chairman of the Initiative for Rehabilitation and Palliative Care (IRPC), Kannur. The appellant is also stated to be involved in promoting cultivation of pesticide free vegetables particularly in Kannur District. He claims to be the first person in the District who encouraged yoga training and took steps to promote yoga. He arranged a successful programme under the leadership of 2200 yoga teachers at Kannur and conducted a mass demonstration at Kannur Municipal Stadium. It is stated that the appellant is engaged in social welfare activities to the needy and deserving poor people, but his political opponents are trying to tarnish his image. The appellant claims that his mass support was reflected in the local body elections in 2015 particularly in Kannur District.

32. The credentials of the appellant are not in dispute. The law applies equally to all. It applies to the rich and poor, mighty and downtrodden and literate and the illeterate alike. We do not find that the averments made, as stated above, would in any way help the appellant to get any extraordinary treatment in the matter of anticipatory bail.

For the aforesaid reasons, we are of the view that the appeal is bereft of merits and it is accordingly, dismissed.

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