(Prayer: Criminal Petition filed under Section 439 of the Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.483/2008 of Madivala P.S., Bangalore City, which is Bangalore City, which is registered for the offences p/u/s 120 (b), 121, 121(a), 302, 307, 326, 435 and 201 of the IPC and Sections 3, 4, 5 and 6 of Explosive Substances Act, 1908, Section 4 of prevention of damage of public property 1984 and Sections 3, 10, 11, 13, 16, 17, 18, 19 and 20 of Unlawful Activities (Prevention) Act, 1967.)
1. The petitioner who is accused No.31 in Cr.No.483/08 (C.C.No.23444/08) is one of the 32 accused persons against whom a case is registered for the offences punishable under Sections 120-B, 121, 121-A,302,307,326,435 and 201 of IPC, Sections 3,4,5 and 6 of the Explosive Substances Act, 1908, Section 4 of the Prevention of Damage to Public Property, 1984 and Sections 3, 10, 11, 13, 16, 17, 18, 19 and 20 of the Unlawful Activities (Prevention) Act, 1967, and he is before this Court seeking bail under Section 439 of Cr.P.C.
2. Before going to the prosecution case in brief, it has to be mention at the outset that the petitioner moved for anticipatory bail earlier and the said petition was rejected by the trial court and this Court and the petitioner moved the Apex Court for anticipatory bail and in the meanwhile, as he was arrested, the petition before the Apex Court became infructuous. The Apex Court while disposing of the petition filed, made observations to the effect that if regular bail application is filed by the petitioner, the same shall be considered on merits without being influenced by the rejection of earlier anticipatory bail petitions. Keeping the aforesaid observations of the Apex Court, I proceed to refer to the prosecution case in brief before dealing with the contentions raised by the learned Senior Counsel appearing for the petitioner and the learned Advocate General appearing for the respondent-State.
3. A series of bomb blasts rocked Bangalore on 25.07.08 and it all started with a bomb explosion at 1.20 p.m., on the aforesaid date at the police station adjacent to the St. John’s Hospital near Madivala check post on Hosur road within the limits of Madivala police station and the said blast had a victim by name Smt. Sudha and leaving five to six injured at the spot. Some time later, another bomb explosion took place on the foot path opposite to the construction building on Hosur-Laskar road near Adugodi textile and one person by name Muniraju became the victim in the form of having several injuries and certain shops were also damaged which were in the vicinity. Similar such bomb blasts were also reported from other parts of the Bangalore City within the time of one hour and the police Inspector of Adugodi also visited the spot and near Koramangala, it was noticed on the following day i.e., on 26.07.08, an unexploded live bomb lying near the shop of one Sunil and it was found that the bomb along with electric wires were attached to the flower pot. A hotelier by name Vasudev Poojary also informed Ashoknagar police that on 25.07.08, there was huge explosion near Adugodi drainage and this was followed by one Sandeep Ged informing the police that on the same day there was explosion in front of his shop. One Raveendran Kanakaraj while proceeding with his friend Ramesh near Rajaram Mohan Ray circle also heard big bang and came to know that it was bomb explosion and this occurred at around 3 p.m., on 25.07.08. Sampangiramanagar Police were informed of this. Similar such incidents were also reported from other parts of the city namely from Byatarayanapura, Manjunathnagar and Thunganagar and respective jurisdictional police stations were informed and cases were registered in different crime numbers.
4. During the very same period, bomb blasts were also reported from other parts of the country i.e., from Jaipur, Ahmedabad, Surat and Delhi. The bomb blast at Jaipur took the lives of 63 persons injuring 150. 56 persons lost their lives and 200 were injured on account of the bomb blast at Ahmedabad city. The major catastrophe was averted at Surat city when IED’s were traced. Delhi was also not left out of these bomb explosions as on account of the five serial bomb explosion on 13.09.08, 30 persons were killed and 130 persons sustained injuries.
5. The police inspector of Madivala registered a suo-motto case in Cr.No.483/08 which is not pending in S.C.No.1478/10 on the file of the learned Sessions (Spl) Judge, Bangalore and series of cases are also registered in corresponding sessions cases pending before the very same Judge. All these events led to investigation being taken up nationwide and one of the accused person namely Samee Bagewadi was arrested on 25.09.08 and this led to the other information being collected by the police based upon the voluntary statement of the aforesaid accused and the first charge sheet was filed against the said accused on 23.12.08. This was followed by second charge sheet being filed against 26 accused persons on 17.05.09. Accused No.1 was arrested by Shillong police at the border of Bangladesh and was brought to Bangalore. Thereafter, investigating agency recorded the statement of one M.M.Mazid at Kannur on 11.12.09 and that of Josh Varghese on 06.01.10 and after recording the statement of Jamal Mohammed, this petitioner was issued with notice under Section 91 of Cr.P.C., and few more statements were recorded and they were those of one Rafeeq and Prabhakar and all these led to filing of charge sheet against the petitioner as accused No.31 and the member of accused filing was 32.
6. The petitioner on being unsuccessful in getting anticipatory bail from the trial court has now approached this Court for bail and apart from the ground that are urged in the bail application, the accused-petitioner also has stated about his health conditions.
7. I have heard the learned senior Counsel Sri.B.V.Acharya for the petitioner and Sri.Ashok Haranahalli, learned Advocate General for the respondent-State and perused the entire material, which incidentally is very bulky in nature and the bail petition itself along with its enclosures runs to 524 pages and the objections file by the State is also unusually very long in bail matters and it runs nearly 131 pages comprising of 80 paragraphs.
8. Learned senior Counsel Sri.B.V.Acharya for the petitioner submitted at the outset that this petitioner is the President of a political party by name ‘People’s Democratic Party’ in Kannur and also suffers from the disability of having one leg amputed. It was also mentioned that this petitioner suffered custodial period for nearly 91/2 years in connection with the Coimbatore bomb blast and was ultimately acquitted. Prefacing his submission with the aforesaid facts, learned senior counsel referring to the bail application contended as under;
(i) It is his submission at the outset that there is no material collected by the investigating agency to show that this petitioner is also involved in the bomb blasts at Bangalore and other places and the question of this petitioner having conspired with the other accused persons does not arise. Therefore, Section 120-B of IPC does not get attracted so far as this petitioner is concerned. According to the learned senior counsel Sri.B.V.Acharya, the prosecution has banked upon two main circumstances to connect this petitioner with criminal conspiracy in connection with the bomb blasts that occurred in Bangalore on 25.07.08. The first circumstance is that this petitioner said to have visited accused No.1 Naseer at Lakkeri Estate of Madapura, Somwarpet, Kodagu and there, accused No.1 was alleged to have run classes for Muslim youth. Therefore, mere visit of this petitioner that too on only one occasion to Kodagu where accused No.1 was running the classes for Muslim youth itself could not be taken as that of an act indicating criminal conspiracy and therefore, one single incident of meeting accused No.1 by this petitioner could not, lead to the inference that this petitioner also had conspired with accused No.1 and other accused persons and the said conspiracy has resulted in the bomb blasts at Bangalore in different places as mentioned earlier.
(ii) The next circumstances upon which the prosecution has relied to bring about connection between this petitioner and other accused persons is that be accused Nos.1 and 2 having gone to Ernakulam to the house of this petitioner and having spent time there, and for this circumstance, the prosecution has relied on the statement of two witnesses namely M.M. Mazid and Josh Verghese. Apart from the aforesaid circumstance to connect this petitioner, the prosecution has also relied on the yet another circumstances i.e., the act of this petitioner in telling his brother Jamal Mohammed to accommodate accused Nos.1 and 2 for two days. In other words, the offence of harboring is therefore sought to be pointed to this accused-petitioner on account of the aforesaid circumstance which is said to be based on the statement of the petitioner’s brother Jamal Mohamed. Referring to the aforesaid circumstance, learned senior Counsel Sri.B.V.Acharya argued that from these circumstances, it cannot be said that this petitioner also had a hand in the criminal conspiracy alleged to have been hatched out by other accused persons to cause the bomb blasts in various places at Bangalore and elsewhere in the country.
(iii) Submission of the learned senior Counsel is that it is not possible for this petitioner to have talks with accused No.1 at Kodagu and to have had discussed with accused Nos.1 and 2 at Ernakulam about Coimbatore bomb blast and as to the precautions to be taken at Bangalore and similar such incidents to take place in future. It is the submission of the learned senior counsel, that the fact that this petitioner was given high security and the safety measure by the Government of Kerala, it was therefore not possible to expect the petitioner to have the meeting of minds with the other accused persons to hatch the conspiracy. It is his further submission that the police have not recorded any statement to show that this petitioner had gone to Kodagu. As far as the talk that took place in the house of the petitioner at Ernakulam is concerned, it was submitted that there is nothing unusual in accused Nos.1 and 2 meeting Mazid as the said Mazid was also the active worker of the party.
(iv) The next contention put forward is that the statement of Mazid will be of no use to the prosecution as the said witness died on 16.12.09 and as such, if the said circumstance of the statement of Mazid is taken out of the reckoning, the prosecution therefore does not have any thing to show that there was meeting of minds at Ernakulam in the house of the petitioner.
(v) As far as the statement of the petitioner’s brother concerning harboring is concerned, little weight is there in the said statement because the theory put forward by the prosecution on the statement of the petitioner’s brother is unbelievable. Yet another contention put forward is that two of the witnesses have gone back on their statements and this itself goes to show that the statements of the witnesses on whom the prosecution wants to rely to connect this petitioner were obtained under pressure and the investigation is also not conducted in a fair manner.
(vi) Referring to the telephonic conversations rather mobile talk between the petitioner and the other accused persons, submission made is that even as per the statements placed by the prosecution in their material, it has been admitted that the simcard belongs to different persons and therefore, it is not possible to say from the details of contacts referred to by the prosecution at page No.383 of its paper book is there any connection whatsoever with the conversations said to have taken place between accused No.1 and this petitioner and likewise between accused No.2 and the petitioner and accused Nos.9, 6 and 12 with this petitioner. Therefore, the material collected by the prosecution cannot give any indication that this petitioner had any talks with the other accused persons either before the blast or after the blast.
(vii) Learned senior counsel referring to the provisions of the Unlawful Activities (Prevention) Act, 1967, argued that before taking cognizance of the offences under the said Act, it is imperative on the part of the prosecution to obtain necessary sanction from the Government and before sanction is accorded, the Government is also required to make an independent review of the evidence gathered in the course of the investigation and make the recommendation. In the instant case, no such procedure seems to have followed either by the prosecution or by the State. Therefore, the question of taking cognizance in respect of the offences under the Unlawful Activities (Prevention) Act, does not arise.
(viii) Apart from making the aforesaid submissions, in respect of the material collected by the prosecution to connect this petitioner with the other accused persons, learned senior counsel also placed reliance on several decisions of the Apex Court with regard to the factors to be considered while considering bail application. Submission made in this connection is that even where prima facie case is made out, the Court is required to take note of the other factors namely tampering with the evidence and the presence of the accused during trial and in this regards, learned senior counsel argued that the question of the petitioner running away from the trial will not arise, as the petitioner’s one leg is amputed and more over, the petitioner has undergone the agony having spent 91/2 years in jail in connection with Coimbatore bomb blast case. Tampering of the evidence is also unlikely because according to the prosecution, statement of some of the witnesses have been recorded under Section 164 of the Cr.P.C. before the Magistrate.
(ix) As far as the liberty of an individual is concerned, reliance was placed by the learned senior counsel on the Apex Court decision reported in AIR 2011 SC 312 to contend that the liberty of an individual is very paramount and that cannot be lost sight while considering the bail application. Particular attention of this Court was drawn to the observations made in paragraphs 41 to 43, 91, 92 and 96 of the aforesaid decision apart from referring to t para-122, wherein the Apex Court had laid down the parameters to be taken into consideration and the learned senior counsel drew my attention to factor No.7 to submit that the Court must evaluate the entire available material against the accused carefully and the Court must also clearly comprehend the exact role of the accused in the case. Placing much emphasis on this observation, submission made is that in the instant case, the circumstance upon which the prosecution has relied do not pinpoint any clear role having been played by this petitioner in the criminal conspiracy hatched by the other accused persons. The observations made at paras-127, 128 as well as 129 were also referred to in this regard.
(x) As far as the confession before the police officer is concerned, submission made is that the voluntary statement of accused No.1 cannot be made use against this petitioner as the said confession is inadmissible under Section 25 of the Evidence Act. The Apex Court decision in the case of Arup Bhuyan v. State of Assam was pressed into service in this connection.
(xi) Last of the point which the learned senior counsel put forward in support of the bail application is that, the past history of the petitioner’s involvement in Coimbatore bomb blast case cannot be taken into consideration as in the said case he was acquitted and even the observations made by this Court while considering the anticipatory bail application also cannot be looked into and this Court will have to independently consider the bail application of the petitioner in the light of the material that is placed at this juncture.
9. Repelling the aforesaid contentions of the learned senior counsel for the petitioner, learned Advocate General for the State Sri.Ashok Haranahalli also made detail reference to the material collected by the investigating agency and referring to the statements filed on behalf of the State, it is argued that the material collected against this petitioner reveals that this petitioner had conspired with accused Nos.1 and 12 and concealed the design to wage war against the State and knowing fully well that accused Nos.1 and 18 were involved in the Bangalore bomb blast cases, this petitioner harboured by providing place for accused Nos.1 and 18. The conspiracy hatched by all the accused persons including this petitioner is well founded by the statements of CWs 41, 43, 196 and 234 and apart from that this petitioner was also the founder of the banned outfit Islamic Seva Sangha and he is the follower of Muslim Noorisha Tahareeqat having took Bayat and led the other accused persons to involve in Noorisha Thareeqat. Further submission made is that this petitioner had visited Hosathota, Madapura and had talks with accused Nos.1 and 12 and also had contacted with all other accused persons both before and after the blast.
10. In order to support the aforesaid submission, learned Advocate General referred to the statement of the witnesses recorded during investigation by the police and he also made a mention of the enormous difficulty encountered by the police when they went to arrest this petitioner at Kerala.
11. Learned Advocate General also put forward the submission that a report published in Thehalka revealed that a reported by name K.K. Shahina along with one Subeer and other two associates went to Hosathota where the conspiracy plan was being hatched by the accused persons and the said Shahina and Subeer impersonated themselves as T.V. officials and met the witnesses and in this connection, two cases have been registered by the Somwarpet police in Cr.Nos.199/10 and 241/10. Therefore, submission made is that when the matter is pending investigation and bail application was also filed which was pending before this Court, the petitioner had tried to tamper with the evidence in the aforesaid manner. It was his further submission that bail application of Shahina was rejected and other accused person Subeer is absconding and according to the investigating agency, there is nexus between the aforesaid Shahina and Subeer in visiting the petitioner and the said persons visited the Central Jail and also had talks with the petitioner.
12. Learned Advocate General also referring to the mobile phone through which accused persons had talks with the petitioner and also placed for my perusal, the details of simcard of the mobile numbers and the contact made by accused Nos.1, 2, 6, 9 and 12 with the petitioner and also placed the details of calls made by the aforesaid accused persons on various dated and the number of calls made and from which city. The aforesaid statements was sought to be reinforced by the learned Advocate General by placing reliance on the several decisions of the Apex Court and the said decisions which are reported in (2007) 5 SCC 634, AIR 1978 SC 429, (2008) 1 SCC (Cri) 660, 2004 Crl.L.J.3348, (2004) 8 SCC 788, 1997(4) Crimes 307(SC), (2004) 7 SCC 528, AIR 2007 SC 2111 and (2004) RD-SC 161.
13. It was also argued relying on the aforesaid citations particularly with regard to the offence of criminal conspiracy, that there can be no direct evidence in so far as the offence of criminal conspiracy is concerned and it can only be gathered from the surrounding circumstances.
14. Yet another submission put forward by the learned Advocate General is that two of the witnesses have gone back on their statements and this itself shows that even while being in jail, this petitioner has been successful in getting the evidence tampered as many other accused persons are absconding and as the investigating agency hopes to collect more material by securing the arrest of those accused persons and in this regard, Red corner notice and look out notice to all the Airports have been sent. Having regard to all these aspects and the very nature of the incident and the sovereignty of the country being under serious threat, submission made by the learned Advocate General is that in the larger interest of the Nation and the people of this country, the petitioner therefore is not entitled for bail at the hands of this Court.
15. In the light of the aforesaid contentions put forward by the learned senior counsel for the petitioner and the learned Advocate General for the State, whether this is a fit case for grant of bail to the petitioner is the point for consideration.
16. There can be no dispute as regards several bomb blasts having taken place on 25.07.08 at several places in Bangalore and also during the relevant period other cities in the country. The fact of the bomb blast having occurred as stated by the prosecution in its objections is not controverted by the learned senior counsel for the petitioner, but the main thrust of the argument canvassed by the learned senior counsel Sri.B.V.Acharya for the petitioner is that, there is no material to link the petitioner with the act of the criminal conspiracy and it is his contention that whatever material that is collected by the prosecuting agency cannot indicate that his petitioner had conspired with the other accused persons and that he had a role in the series bomb blasts that took place in Bangalore on 25.07.08.
17. It is in the backdrop of the aforesaid contentions put forward that the material place by the prosecuting agency will have to be looked into. Since we are considering the bail application of the petitioner, it is also to be borne in mind that this Court at the stage of considering the bail application cannot go too deep into the material collected by the prosecuting agency as if to evaluate the material. The Apex Court has laid down the law in several cases dealing with the bail application, that, at the stage of considering the bail application, the Court is not expected to go deep in the matter, but at the same time, the Court will have to consider as to whether there is prima facie material against the accused persons. Keeping the aforesaid law laid down by the Apex Court, the material placed will have to be considered only from the prima facie angle.
18. To connect this petitioner with other accused persons, the investigating agency has relied on several circumstances which are in the form of statements made by the witnesses who are examined during the course of investigation.
19. It is in the statement of one Rafeeq recorded on 03.03.10 that in the year 2007, the land of one Amid Khan of Lakkeri was taken on lease by Umar Hazi for growing ginger and Rafeeq took some persons to the said land for the purpose of putting the mud and fertilizers and for picking out the weed and on the Ramzan festival day, the said witness Rafeeq was called to the land and accordingly, he went there and there, Rafeeq, some 8 to 10 boys from Kerala apart from moulvis and Rafeeq also heard at that place that Umar Hazi was telling the boys who had gathered that Muslims are being harassed and referred to the Babri Masjid incident and Gujarat incident, therefore wanted the persons gathered to take revenge for this. However, Rafeeq did not go there afterwards, but about 4 to 5 months later, at about 5 p.m., while Rafeeq was leaving towards his house after completing the work, he saw a person coming in a car and the said person was not having a leg and when Rafeeq asked Umar Hazi as to who is the said person, he was told that the said person has come from Kerala and he is the petitioner herein.
20. Next is the statement of M.M. Mazid recorded on 11.12.09 and the contents of the said statement so far as this petitioner is concerned are that, in the year 2008, the said Mazid had gone to the house of the petitioner and at that time, other persons namely Naseer, Abdul Alim and Abdul Rahim came there and all were talking and the petitioner pointed Mazid to other persons gathered there and told them that they can talk because the witness Mazid is a bankable person and thereafter, accused No.1 Nasser said to have stated that they have decided to arrange for the bomb blast at Bangalore and they have also have necessary material for that, apart from the amount. Thereafter, this petitioner is said to have told that in respect of bomb blast that occurred in Coimbatore, all the accused were put behind the bar and the petitioner also went to jail and such things should not occur again and the petitioner is said to have told the other person there, to see to it that proper places are chosen for the bomb to blast. This statement of Mazid also referred to the period spent by this petitioner at Coimbatore. Yet another information that was revealed by the said witness Mazid was that though he came to know about the bomb blast that occurred in Bangalore through T.V. and newspapers, following the instruction given by this petitioner and accused No.1, Mazid did not inform all that conspired in the house of this petitioner to any one else.
21. The statement of Josh Varghese is also relied upon by the prosecution to connect this petitioner with the act of conspiracy. The said witness Josh Varghese whose statement was recorded on 06.01.10 has stated to the effect that this petitioner is the President of P.D.P party and about a year back, Josh Varghese had gone to the house of this petitioner to ask for a house rent and at that time, Josh Varghese saw Naseer (A1) with another person in the house of the petitioner and when Josh Varghese asked the rent, he saw in the room, accused No.1 Naseer, this petitioner and others were talking and Josh Varghese heard only the part of the spoken words which reads thus “Bangaluril bomb spotanam”. The moment they saw Josh Varghese they stopped talking. Thereafter, the said person Varghese returned home and out of fear, he did not inform any one about what he had heard.
22. Another statement which was referred to by the prosecution to connect this petitioner with other accused person is that of Jamal Mohammed recorded on 30.01.10 and the said person happened to be the younger brother of the petitioner and he has also stated in the statement about his mobile number as 9387763218 and that of the mobile number of the petitioner as 9349955082. It is also in his statement that he was in charge of the orphanage at Anwarsheri and in this connection, he used to talk very often with his brother, that is the petitioner.
23. Thereafter, in the statement of Jamal Mohamed, it is found that in the year 2008 in the month of August, persons who are very close to the petitioner and whom are also proximate persons in the P.D.P namely Naseer (A1) @ Umar Hazi, K.P. Sabir @ Ayub had come to meet the petitioner and when Jamal Mohammed told the petitioner about the visit of the said persons, the petitioner told Jamal Mohammed to arrange for stay of the said persons and so told Jamal Mohammed not to reveal this information to any one. Accordingly, Jamal Mohammed arranged for stay of Naseer and K.P. Sabir @ Ayub at Anwarsheri and they stayed for two days and during the period, Jamal Muhammed noticed several persons, not known to him, moving suspiciously and this was conveyed by Jamal Muhammed to the petitioner. Thereafter, the petitioner told his brother to keep the said persons for few days at some other place and accordingly, Jamal Muhammed sent Nasir and Sabeer. This witness has also stated that he was informed by the petitioner not to reveal the information to anyone and accordingly, he obliged and did not reveal the information to anyone else.
24. The prosecution has also referred to the statement of one Prabhakar, who resides at Igoor, Kumbur Post, Somavarapete Taluk, Madikeri, and the statement of the said witness, recorded on 3.12.2009, is to the effect that A-1 had taken the land of Hamid Khan in 2007 for the purpose of growing ginger and the said accused was residing in a room close to the house of Hamid Khan and also put up a shed about 150 metres away from the said room and several boys from Kerala used to go often and in the said shed, during night times, meetings used to be held and Prabhakar was very suspicious of the conduct of he said persons and he has also identified the persons who were in the photographs which were shown to him as Abdul Rahim @ Sanna Haji @ Aftab, Fahiz, Fayaz and Yasin @ Vergheese, and Prabhakar also came to know that the said persons had died during the operation carried out at Kashmir.
25. Apart from relying on the aforesaid statements of the witnesses recorded during the investigation, the prosecution has also relied on the talks which, according to the prosecution, the accused persons had with this petitioner. The details of the mobile numbers and the calls made during the relevant period are mentioned by the prosecution in its paper book at page 383 and the particulars given therein are as follows:
Details of contact of accused in Madivala PS Crime No.483/2008 with A31, Abdul Nazir Madauni.
Mobile No.9349955085 stands in the name of Sufiya Abdul Madauny. She stated before the I.O this number is also used by her husband Abdul Nazir Maudany.
| Accused Name | Sim Card No. | Maudany No. | Contact as per documents available | Period |
| A1. T. Naseer | 9746186452 | 9349955085 | 4/8/2008 to 6/10/2008 | After the blasts |
| A1. T. Naseer | 9744386493 | 9349955085 | 27/7/2008 to 29/7/2008 | After the blasts |
| A1. T. Naseer | 9387752648 | 9446549182 | 8/3/2008 to 24/3/2008 | Before the blasts |
| A1. T. Naseer | 9291425452 | 9446549182 | 3/1/2008 to 2/9/2008 | Before and after the blasts |
| A1. T. Naseer | 9744386493 | 9446549082 | 13/7/2008 to 25/7/2008 | After the blasts |
| A1. T. Naseer | 9995325748 | 9446549182 | 5/1/2008 to 7/5/2008 | Before the blasts |
| A2. Zainuddin | 9246547313 | 9446549182 | 22/1/2008 to 23/5/2008 | Before the blasts |
| A9. Badruddin | 974468556 | 9446549085 | 12/7/2008 to 2/10/2008 | Before and after the blasts |
| A9. Badruddin | 974468556 | 944659142 | 23/3/2008 to 2/4/2008 | Before the blasts |
| A12. Abdul Raheem @ Aftab | 9744697448 | 9446549182 | 30/3/2008 to 23/4/2008 | Before the blasts |
| Note: A31 Abdul Nazir Maudany’s body guard Rejeeb is having Sim Card No.9846838838 | ||||
| A1. T.Naseer | 9387752648 | 9846838833 | 12/3/2008 to 24/3/2008 | Before the blasts |
| A1. T.Naseer | 9995325748 | 9846838833 | April and May 2008 | Before the blasts |
| A6. Manaf | 9847252408 | 9846838833 | 8/5/2008 to 25/5/2008 | Before the blasts |
| Jaleel | 9744382047 | 9846838833 | 6/3/2008 to 26/9/2008 | Before and after the blasts |
| A4. Sharafuddin | 9847263179 | 9846838833 | 5/6/2008 to 12/12/2008 | Before and after the blasts |
27. Similar particulars are given in respect of other sim card Nos.9291425452 and 9995325748 in respect of mobile calls made by A-1 to the petitioner. The details furnished by the prosecution also reveal that A-2 is said to have used 9246547313 and A-1 used his own sim card No.9744685556 and finally, A-12 used sim card No.9744697448.
28. The learned Advocate General also placed for my perusal, the details of the calls made by the accused persons, A-1, A-4, A-7 and A-9, and from which location and the details of the call time and the duration of the calls.
29. From the material that is placed by the prosecution as above, it is clear that this petitioner had contact with the other accused persons and more particularly with A-1. The table that is given at page 383, to which I have already referred, also mentions the period during which there was contact between the accused and the petitioner and the said period pertains to both before and after the blasts. The aforesaid material placed, if read in conjunction with the statements of the witnesses who have spoken to the fact of the petitioner having gone over to Somawarapete, Kodagu, to meet A-1, and the petitioner and the other accused talking at the petitioner’s house at Ernakulam and the petitioner being told by his brother to send the accused to some other place, all these, therefore, give an indication of the petitioner being in constant with the other accused persons before as well as after the blasts.
30. No doubt, there can be no direct evidence of criminal conspiracy and, as has been observed by the Apex Court in the case of Suman Sood @ Kamal Jeet Kaur Vs. State of Rajasthan, reported in (2007) 5 SCC 634, there is seldom, if ever, that direct evidence of conspiracy is forthcoming. Conspiracy from its very nature is conceived and hatched in complete secrecy, for otherwise the whole purpose would be frustrated. Inference as to conspiracy can be drawn from the surrounding circumstances. Therefore, it is for the prosecution to establish that the evidence collected by it is sufficient proof of the conspiracy on the part of the accused persons.
31. It is also a well settled maxim or saying that action speaks louder than words. A person’s thought can be gathered only by his actions as it is not possible for any one to venture into the mind of the other person and to say as to what thoughts are going on in his mind. Therefore, it is only from the surrounding circumstances that one can gather the inference of conspiracy.
32. Looked from the prima facie angle, at the stage of considering the bail application, in my view, in the face of the material collected by the investigating agency and the statements of the witnesses recorded by the police during investigation, coupled with the details of the mobile contacts which the petitioner is said to have had with the other accused persons before and after the blasts, the submission made by the learned senior counsel for the petitioner that the circumstances gathered by the prosecution cannot indicate the act of criminal conspiracy on the part of the petitioner, therefore, cannot be accepted.
33. As far as the emphasis laid on the personal liberty of the petitioner is concerned, no doubt, the Apex Court, in a catena of decisions, has held that the liberty of an individual is also a very important factor to be taken note of. At the same time, it is also the law laid down by the Apex Court that, among other factors, gravity of the offence and the interest of the State also cannot be lost sight of.
34. In the case of Gudikanti Narasimhulu Vs. Public Prosecutor, High Court of Andhra Pradesh, reported in AIR 1978 SC 429, while emphasizing on personal liberty, the Apex Court has also held that the nature of the charge is the vital factor and the nature of the evidence also is pertinent.
35. As far as the statement of the witnesses recorded by the police during the course of investigation is concerned, the Apex Court, in the case of Satish Jaggi Vs. State of Chhattisgarh, reported in (2008) 1 SCC (Cri) 660, has observed that the primary consideration is the nature and gravity of the offence and, at the stage of granting bail, the court can only go into the question of the prima facie case established for grant of bail. The question of credibility and reliability of the prosecution witnesses can only be decided during the trial. The court also referred to another important aspect and that is, the factor of the impact ion the democratic fabric of the society while considering the gravity of the offence.
36. In another decision, the Apex Court, in the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav, reported in (2004) 7 SCC 528, while laying down the factors to be considered by the court before granting bail, also has referred to reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
37. Whether bail can be granted in cases involving threat to security of the State was also considered by the Apex Court in the case of Afzalkhan @ Babu Murthuzakhan Pathan Vs. State of Gujarat, reported in AIR 2007 SC 2111, and it was held that , in cases involving threat to security of the State, bail should generally be refused, and the case that is hand is also a case of series of bomb blasts taking place in Bangalore on 25.7.2008 and other cities of the country and thus putting the security of the State as well as nation at jeopardy.
38. As far as the decision referred to by learned senior counsel Shri B.V.Acharya concerning the importance to be given to personal liberty is concerned, the Apex Court, in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra, reported in AIR 2011 SC 312, has considered the aspect of right to personal liberty and has referred to various decisions of the Apex Court itself and to the literature on life and personal liberty in other countries. Though the learned senior counsel referred to various paragraphs of the said decision to which I have made reference earlier, it may not be out of place to refer to one particular paragraph i.e., paragraph-92, wherein the Apex Court has observed thus:
“92. Just as the liberty is precious to an individual so is the society’s interest in maintenance of peace, law and order. Both are equally important.”
39. In this connection, it may also be not out of place to refer to a very wise saying found in the scriptures. It is said that, for the sake of the interest of the family, individual’s interest will have to be given up, for the sake of the interest of a village, the interest of a family has to be given up, and in the interest of the State, the interest of the village has to be given a go-by and, extending further, the interest of the State will have to yield to the nation’s interest. However, the interest of the nation can never be given up.
40. In the case on hand, having regard to the nature of the prosecution case and the series of bomb blasts having occurred, according to the prosecution, at several places in Bangalore and elsewhere in the country, and the prosecution also placing certain material to indicate that there was tampering of evidence, all these factors coupled with the factors of gravity of the offence and the interest of the State, therefore, do not incline this court to grant bail to the petitioner.
41. Before winding up, one aspect to which reference will have to be made is that, it was submitted by learned senior counsel Shri B.V.Acharya that the petitioner is a disabled person having lost one leg and because of the security provided to him, he is exposed to too much bright light. Taking note of the above submissions, insofar as the health of the petitioner is concerned, the concerned jail authorities also will have to take all the steps to see that the health condition of the petitioner does not deteriorate but, on the other hand, he be given all the medical help to keep him in good health.
In the result, the petition is rejected.