YOONUS ALI VELLILAVUNKAL Vs. DEPUTY SUPERINTENDENT OF POLICE

JUDGEMENT

(1.) THE appellant in Crl. Appeal 2228 of 2010 is the 4th accused in Crime No. 704 of 2010 of Muvattupuzha Police Station for offences under Sections 143,147, 148, 120 B, 341, 427, 323, 324, 326, 506 (ii), 153A, 201, 202, 212 and 307 read with Section 149 I.P.C., Section 3 of the Explosive Substance Act, 1908 and Section 15 read with Sections 16,18, 18B, 19 and 20 of the Unlawful Activities (Prevention) Act, 1987 (for short, 'UA(P) Act'). Accused Nos. 11 to 13 are the appellants in Crl. Appeal 2229 of 2010. The 8th accused is the appellant in Crl. Appeal No. 2231 of 2010. Accused Nos. 1 and 6 are the appellants in Crl. Appeal No.2232 of 2010. Accused No. 20 is the appellant in Crl. Appeal No. 2240 of 2010. The 7th accused is the appellant in Crl.Appeal No. 2249 of 2010. (Hereinafter the appellants are referred to as accused in the chronological order in the crime).

(2.) THE prosecution case, in brief, is that Sri. T.J. Joseph was working as Professor in Malayalam at New Men's College, Thodupuzha. While setting question papers for the internal examination of B. Com. students, he included questions allegedly ridiculing Prophet Mohamed and Islam Religion. Activists of Popular Front of India (PFI) and its political wing called Social Democratic Party of India (SDPI) got intolerant. Though appropriate legal action was taken against Professor Joseph, the appellants and other activists conspired together to take revenge against Professor Joseph by attacking his house and either to kill Professor Joseph or to amputate his right palm with which the question paper was set and thus to strike terror. Pursuant to the criminal conspiracy hatched at different places by the workers of the PFI and SDPI, at about 8 A.M. on 4.7.2010, seven identifiable persons who are members and activists of PFI and SDPI and now identified as accused Nos. 14,27, 28, 37, 49, 50 and 51, formed themselves into an unlawful assembly and being members of the unlawful assembly they were armed with deadly weapons like hatchet, chopper, explosives etc. and reached near the house of Professor Joseph at Muvattupuzha in a Maruthi Omni Van with a false registration number. Professor Joseph, along with his sister Stella, who is a nun and their mother 81 years old Elikutty were returning from Nirmala Matha Church, Muvattupuzha after the Sunday Holy Mass in a Wagon R Car bearing Registration No. KL-17-E-1795. The assailants intercepted the above car with the Omni Van in which they reached there. All the assailants got down and smashed the window panes of the car in which Professor Joseph was travelling. They pulled Professor Joseph out of the car, dragged him to the road and repeatedly chopped on the right palm with hatchet and the right palm of Professor Joseph was amputated. The amputated palm was thrown into the nearby compound. Professor was chopped at various parts of his body with the intention to murder him. Sister Stella and mother Elikutty attempted to rescue. They were also manhandled by the assailants. Salomi, wife of Professor Joseph, along with their son Midhun, hearing the hue and cry, rushed to the scene. The assailants threw a country bomb, which exploded, against them, to create an atmosphere of terror. Midhun was lifted by the assailants and thrown down to the nearby compound. By the time when the neighbours and other people returning from the Church rushed to the scene, the assailants escaped in the van in which they reached the spot. Professor Joseph was lifted by the gathered people to a hospital. Salomi rushed to the Station House Officer, Muvattupuzha and gave the First Information Statement. After recording the statement of Salomi, a case as Crime No. 704 of 2010 for offences under Sections 143, 147, 148, 120 (B), 323, 324, 326, 341, 427, 506(ii) and 307 read with Section 149 I.P.C. and Section 3 of the Explosive Substance Act, 1908 was registered.

(3.) ON further investigation, it was revealed that altogether 53 persons were involved in the offence alleged. Appellants and 19 others were arrested. The first accused was arrested on 4.7.2010. Accused Nos. 6 and 7 were arrested on 9.7.2010. The 8th accused was arrested on 12.7.2010. 4th accused was arrested on 21.7.2010. Accused Nos. 11 to 13 were arrested on 22.7.2010. Accused No.20 was arrested on 1.8.2010. When produced before the Judicial Magistrate of First Class, Muvattupuzha, they were remanded to judicial custody. Reports were filed incorporating all those persons as accused. On 12.8.2010, a report was filed by the Circle Inspector of Police before the Magistrate stating that in addition to the offences alleged in the First Information Report, the accused had also committed offences under Section 15, read with Sections 16,18,18B, 19 and 20 of the UA(P) Act, 1987. Report was conveyed to the higher authorities to that effect. The Deputy Superintendent of Police took over the investigation. Since the investigation could not be completed, on expiry of the period of remand of the arrested accused, reports were also filed from time to time seeking extension of the period of remand and remand period was extended periodically. By virtue of the proviso to Section 167(2) of the Code of Criminal Procedure, the arrested accused are entitled to be released on bail on expiry of 90 days from the date of arrest. But by virtue of Section 43D(2) of the U.A(P) Act, the above period of 90 days shall stand extended upto 180 days, by the order of the court provided if it is not possible to complete the investigation within the period of 90 days and if it is satisfied to the court on the report of the Public Prosecutor indicating the progress of the investigation and specific reasons for the detention of the accused beyond the said period of 90 days. The Assistant Public Prosecutor attached to the Judicial Magistrate of First Class, Moovattupuzha, filed a report purporting to be under the proviso to Section 43D(2). The learned Magistrate accordingly, allegedly by an omnibus order, extended the said period up to 180 days. The bail application submitted by the appellants and other accused were rejected by the learned Magistrate. Thereupon, some of the appellants herein and certain others filed Bail Application No. 5134 of 2010 and connected applications before this Court. In the bail applications, it was contended that no useful purpose would be served by the continued detention of the accused and that the Assistant Public Prosecutor who filed the report under the proviso to Section 43D(2) seeking extension of the period of detention up to 180 days had no locus standi to file the same and that only a Public Prosecutor can file the report and that the Magistrate was not competent to consider the said report and only a Court of Session can deal with the accused even during the crime stage on a report under the first proviso to Section 43D(2) of the UA(P) Act. Those petitions were disposed of by a learned single Judge, by a common order dated 26.10.2010, vide Ashraf v. State of Kerala (2010 (4) KLT 558).