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: