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State of Kerala Vs. Raneef

Markandey Katju, J.

1. Leavegranted.

2. Heardlearned counsel for the parties.

3. The appellant has filed this appeal challenging the impugned order of the Kerala High Court dated 17.9.2010 granting bail to the respondent, Dr. Raneef, who ISA medical practitioner (dentist) in Ernakulam district in Kerala, and is accused in crime no.704 of 2010 of P.S. Muvattupuzha for offences under various provisions of the I.P.C., the Explosive Substances Act, and the Unlawful Activities (Prevention) Act.

4. The facts of the case are that on 4.7.2010 soon after 8 a.m. seven assailants camein a Maruti Van and assaulted Prof. T.J. Jacob of Newman College, Thodupuzhaand chopped off his right palm from the vicinity of his house when he wasreturning home after Sunday mass. The role attributed to the respondent is that he treated one of the injured assailants (who was injured when Prof. Jacob's son tried to protect his father) by suturing(stitching) his wound on the back after applying local anesthesia at a place 45 kms. away from the place of the incident.

5. Thealleged motive for attacking Prof. Jacob was that he incorporated a questionfor the internal examination of B.Com. paper criticizing Prophet Mohammed andIslam.

6. Theprosecution case is that the respondent gave medical aid to one of the woundedaccused in pursuance of a previous plan that if and when any of the assailantsgot injured in the attack on Prof. Jacob then immediate medical treatment wouldbe given by the respondent to the injured. The respondent stitched the back ofan assailant, which is not the job of a dentist. The respondent, along with theother accused is a member of the Popular Front of India, a Muslim organization,and was head of its medical committee. Certain documents, C.D.s, mobile phone,books, etc. including a book called `Jihad' were allegedly seized from hishouse and car.

7. Theprosecution has placed reliance on the proviso to Section 43D(5)of the UnlawfulActivities (Prevention) Act, 1967 which states that the accused shall not bereleased on bail if the Court, on perusal of the case diary or the report underSection 173 Cr.P.C. is of the opinion that there are reasonable grounds forbelieving that the accusation against such person is prima facie true.

8. Onthe other hand, the case of the respondent as disclosed in the counteraffidavit filed before us is that even according to the prosecution case therespondent was not one of the assailants, and he is not named in the FIR. Inpara 13 of the counter affidavit the respondent has stated that the attack onProf. Jacob is a crime which is to be condemned. However, as a pretext to theinvestigation the police had lashed out are in of terror on innocent people ofthe minority community, people who are totally innocent or even had noknowledge of the crime have been falsely implicated. 54 persons have been madeaccused in the crime. Many residential houses, mosques and offices were raidedand searched, and even minor children and women were cruelly tortured bothphysically and mentally. Holy books and other religious books were thrown out,seized and taken away and bundled in police stations. War like atmosphere wascreated in mosques, daily prayers were disrupted and men illegally detained,and physically tortured in custody and false cases booked against innocents.

9. Itis further alleged in the counter affidavit that the Popular Front of India(PFI) or the Social Democratic Party of India (SDPI) are not militant orterrorist organizations. There is no history of crimes against the party or itsworkers. They are not banned organizations. The SDPI is a political partyrecognized by the Election Commission and the PFI is registered under theSocieties Registration Act.

10.Therespondent has alleged that he is a dental surgeon hailing from a respectable familyin Aluva. His father Late Dr. Abdul Karim was a doctor loved and respected byall, who died as a Civil Surgeon while working in the Government Hospital,Perumbaroor. In 2001 the respondent started AlAmeen Multi-Specialty DentalHospital in Aluva. Five other doctors including the respondent's wife, who isalso a dental surgeon, are working in the said hospital. The respondent has ason aged 9 years and daughter aged 5 years. He claims that he has a very goodreputation and is loved by all due to the services rendered by him to the poorand needy. The respondent's elder sister is a post graduate in zoology, and hisyounger sister is a law graduate. The book entitled `Jihad' said to have beenfound in his house was a Malayalam translation of a book written in Urdu in1927 by a well known and respected religious scholar, Maulana Sayyid Abul AlaMandoodi and has been in circulation for 83 years, and is available in manybook shops.

11.Therespondent has alleged that he has been falsely implicated only because hemedically treated one of the alleged assailants.

12.Atthis stage we are not expressing any opinion as to whether the allegations inthe versions of the prosecution or defence are correct or not, as evidence hasyet to be led. However, we would like to make certain observations :

a. We are presently onlyconsidering the bail matter and are not deciding whether the respondent isguilty or not. Evidence has yet to be led and the trial yet to commence. Hencethe prosecution is yet to establish by proof beyond reasonable doubt that therespondent was part of a conspiracy which led to the attack on Prof. Jacob.

b. The case against therespondent is very different from that against the alleged assailants. There isno allegation that the respondent was one of the assailants. We are of theopinion that at this stage there is no prima facie proof that the respondentwas involved in the crime. Hence the proviso to Section 43D (5) has not beenviolated. The respondent, being a doctor, was under the Hippocratic oath to attemptto heal a patient. Just as it is the duty of a lawyer to defend an accused, soalso it is the duty of a doctor to heal. Even a dentist can apply stitches inan emergency. Prima facie we are of the opinion that the only offence that can beleveled against the respondent is that under Section 202I.P.C., that is, ofomitting to give information of the crime to the police, and this offence hasalso to be proved beyond reasonable doubt. Section 202 is a bailable offence.

c. As regards theallegation that the respondent belongs to the PFI, it is true that it has beenheld in Redaul Husain Khan vs. National Investigation Agency 2010 (1) SCC 521that merely because an organization has not been declared as an `unlawfulassociation' it cannot be said that the said organization could not haveindulged in terrorist activities. However, in our opinion the said decision isdistinguishable as in that case the accused was sending money to an extremistorganization for purchasing arms and ammunition. That is not the allegation inthe present case. The decision in State of Maharashtra vs. Dhanendra ShriramBhurle 2009 (11) SCC 541 is also distinguishable because good reasons have beengiven in the present case by the High Court for granting bail to the respondent.

In the present casethere is no evidence as yet to prove that the P.F.I.is a terroristorganization, and hence the respondent cannot be penalizedmerely for belongingto the P.F.I. Moreover, even assuming that the P.F.I. is an illegalorganization, we have yet to consider whether all members of the organizationcan be automatically held to be guilty. In Scales vs. United States 367 U.S.203 Mr. Justice Harlan of the U.S. Supreme Court while dealing with themembership clause in the McCarran Act, 1950 distinguished between active`knowing' membership and passive, merely nominal membership in a subversiveorganization, and observed :

"The clause doesnot make criminal all association with an organization which has been shown toengage in illegal activity. A person may be foolish, deluded, or perhaps mereoptimistic, but he is not by this statute made a criminal. There must be clearproof that the defendant specifically intends to accomplish the aims of theorganization by resort to violence." 8 In Elfbrandt vs. Russell 384 US17-19 (1966) Justice Douglas of the U.S. Supreme Court speaking for themajority observed : "Those who join an organization but do not share itsunlawful purpose and who do not participate in its unlawful activities surelypose no threat, either as citizens or as public employees. A law which appliesto membership without the `specific intent' to further the illegal aims of theorganization infringes unnecessarily on protected freedoms. It rests on thedoctrine of `guilt by association' which has no place here."

In Joint Anti-FascistRefugee Committee vs. McGrath 341 US123 at 174 (1951) Mr. Justice Douglas ofthe U.S. Supreme Court observed: "In days of great tension when feelingsrun high, it is a temptation to take shortcuts by borrowing from the totalitariantechniques of our opponents. But when we do, we set in motion a subversiveinfluence of our own design that destroys us from within." We respectfullyagree with the above decisions of the U.S. Supreme Court, and are of theopinion that they apply in our country too. We are living in a democracy, andthe above observations apply to all democracies.

d. In deciding bailapplications an important factor which should certainly be taken intoconsideration by the Court is the delay in concluding the trial. Often thistakes several years, and if the accused is denied bail but is ultimatelyacquitted, who will restore so many years of his life spent in custody? IsArticle 21 of the Constitution, which is the most basic of all the fundamentalrights in our Constitution, not violated in such a case? Of course this is notthe only factor, but it is certainly one of the important factors in decidingwhether to grant bail.

13. In the presentcase the respondent has already spent 66 days in custody (as stated inparagraph 2 of his counter affidavit), and we see no reason why he should bedenied bail. A doctor incarcerated for a long period may end up like Dr.Manette in Charles Dicken's novel `A Tale of Two Cities', who forgot hisprofession and even his name in the Bastille.14. With the above observations,this appeal is dismissed.

....................................J.(MARKANDEY KATJU)

.....................................J.(GYAN SUDHA MISRA)

NEW DELHI;

3rd JANUARY, 2011


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