IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE A.M.BABU THURSDAY ,THE 13TH DAY OF DECEMBER 2018 / 22ND AGRAHAYANA, 1940 CRL.A.No. 1384 of 2018 AGAINST THE ORDER IN CRL.MP 144/2018 of SPECIAL COURT FOR TRIAL OF NIA CASES,ERNAKULAM DATED 02-11-2018 APPELLANT/PETITIONER: IBRAHIM N.K AGED 64 YEARS S/O ABU, NERCHAKANDY, MEPPADI, MUKKILPEEDIKA, WAYANAD BY ADV. SRI.K.S.MADHUSOODANAN RESPONDENT/COMPLAINANT & FORMAL PARTY: UNION OF INDIA TO BE REP BY N.I.A, KADAVANTHRA, KOCHI - 20 REP BY STANDING COUNSEL BY ADV. SRI.M.AJAY, SPL. P.P FOR NIA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 5.12.2018, THE COURT ON 13.12.2018 DELIVERED THE FOLLOWING: Crl.Appeal No.1384/18 -:2:- JUDGMENT
This appeal is filed by the 8th accused in SC No.3/2016 of the Special Court for Trial of NIA Cases, Kerala, Ernakulam challenging order dated 2/11/2018 in Crl.M.P.No.144/2018, by which his application for bail stands dismissed.
2. The appellant’s earlier bail applications were dismissed and it had been confirmed by this Court by judgment dated 7/11/2017 in Crl.Appeal No.913/2017. The contention urged by the appellant is that there was change in circumstances in so far as the appellant received a copy of the 164 statement of the approver only after dismissal of the earlier bail applications and on a perusal of the said statement, which was the reason for implicating the appellant, there is absolutely nothing to infer that the accused is involved in any offence. Learned counsel submits that the charge against the appellant is based purely upon the statement of 6th accused, who had turned an approver. Other than the said statement, there is no other material to implicate the appellant.
3. On the other hand, learned Special Public Prosecutor Crl.Appeal No.1384/18 for NIA having filed an objection points out that in the earlier round itself, the NIA Court as well as this Court had considered the 164 statement of Rajeesh, the approver and had arrived at a finding and therefore, there is no change in circumstance or event which permits the appellant filing successive bail applications. It is argued that the NIA Court as well as this Court had taken note of the statement of the approver Rajeesh and had opined that there is prima facie material to deny bail.
4. We do not think it necessary for us to go in detail the subject matter in issue in so far as Crl.Appeal No.913/207, which was filed against another bail application, was already dismissed. The only question that requires to be considered is whether there is any change in circumstances warranting grant of bail. Apparently, the Special Court observed that a complete re- appreciation of the matters which were already subjected to the examination at a previous stage does not arise, even after filing a further report. It was held that further investigation brought out an important piece of evidence in the form of statement given by the approver u/s 164 of Cr.P.C wherein it is stated that the petitioner had supplied arms to the members of the Maoist group Crl.Appeal No.1384/18 and such statements do not reveal the innocence of the petitioner.
5. The learned counsel for the appellant took us to portions of statements made by the approver in his 164 statement and contended that none of those statements amount to implicating the accused. One of the main charge against the accused is that he had supplied AK47 rifle and 4 self loading rifles to accused 1 to 5 on 21/4/2014, that he had associated and acted as members of CPI (Maoist), which is notified as a terrorist organization by the Government of India and that he had become a member of the banned organization. There is no dispute about the fact that the approver had alleged that the accused had taken a bag into the forest. According to the approver, those were weapons like AK47. Of course, he states that he did not open the bag but he presumes that those were weapons.
6. When the involvement of the 8 th accused had been spoken to by the approver, veracity of the said statement is to be considered at the time of evidence. That apart, this Court while deciding Crl.Appeal No.913/2017 had observed as under:-
“10. But, in paragraph 9 of order dated 25/5/2017 itself, the Special Court considered the same, which Crl.Appeal No.1384/18 reads as under:-
“9. The accused No.6 has given a statement under section 164 Cr.P.C before the Hon’ble JFCM Court, Kakkanad on 16/3/2017. A perusal of the same would show that he has clearly stated about the involvement of petitioners in the crime. He stated that the weapons for the commission of offence were provided to 1st accused by the accused No.7 and 8. The documents and material objects produced before the Court shows that there are reasonable grounds for believing that the accusation against the accused are prima facie true.”
In the impugned order, the Court below has observed that there is no change in circumstances to differ from the prima facie conclusion arrived at in the earlier bail application”.
In such circumstances, we do not think that the appellant can seek for a bail alleging change in circumstances, as already the issue had been considered and decided. No grounds are made out for interference. Crl.Appeal is dismissed.
A.M.SHAFFIQUE JUDGE Sd/-
A.M.BABU Rp //True copy// JUDGE PS to Judge Crl.Appeal No.1384/18 APPENDIX PETITIONER'S EXHIBITS: ANNEXURE-I PHOTOCOPY OF THE FIR IN CRIME
NO.142/2014 OF VELLMUNDA POLICE STATION DATED 25/4/2014 ANNEXURE-II PHOTOCOPY OF THE FIR IN CRIME NO.327/2015 DATED 10-5-2015 OF PAYYOLI POLICE STATION ANNEXURE-II(A) PHOTOCOPY OF THE FIS IN CRIME NO.327/2015 DATED 10-5-2015 OF PAYYOLI POLICE STATION ANNEXURE-III PHOTOCOPY OF THE 164 STATEMENT OF A6-
ANNEXURE-IV PHOTOCOPY OF THE JUDGMENT INC CRL.APPEAL 913/17 DATED 7-11-2017 OF THE HON’BLE HIGH COURT ANNEXURE-V PHOTOCOPY OF THE SUPPLEMENTARY CHARGE SHEET -I(A) UNDER SEC. 173 CR.PC.
ANNEXURE-VI CERTIFIED COPY OF THE ORDER IN CRL.M.P.144/2018 IN S.C. 3/2016/ NIA DATED 2-11-2018 Rp //True Copy// PS to Judge