ORDER
K.T. Sankaran, J.
1. Soofia Madani, accused No. 10 in Crime No. 469 of 2005 of Kalamassery 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 l20-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 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.
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 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 having active involvement in the crime in recent time immediately after the arrest of one Thadiyanta vide Nazir, 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.
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 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.
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.
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 Section 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 make the final report;
(4) By taking cognizance of the offence, adjudicatory process of the court starts and normally investigation stage ends except under Section 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) Section 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;
(7) Section 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 Section 173(8) as police has power to conduct further investigation under Section 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 Section 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.
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 criticized 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.
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 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 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 willpower 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 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. 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 premeditation 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. Arelief 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. 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.