Accused Undergoing Incarceration For Over 9 Years: Kerala HC Suspends Life Sentence of UAPA Accused Booked In Professor Hand-Chopping Case
The Kerala High Court suspended the life sentence of UAPA accused M.K. Nasar, who was booked in a criminal case where the hand of a Professor was chopped off for allegedly insulting Prophet Muhammed. The High Court took the 9-yr-long incarceration period into consideration and also noticed that similarly placed accused persons served their term and were released from prison.
The application before the High Court was filed by the Nasar, the third accused booked in a criminal case registered under Sections 143, 147, 120B, 148, 201, 202, 212, 341, 427, 323, 324, 326, 506(ii), 307 r/w. Section 149 and 120B of the IPC, Sections 3 and 6 of the Explosive Substances Act, 1908, and Sections 16, 18, and 20 of the Unlawful Activities (Prevention) Act, 1967.
The Division Bench comprising Justice Raja Vijayaraghavan V & Justice P.V. Balakrishnan said, “Having considered the facts of the instant case in light of the principles laid down by the Apex Court, we are of the considered opinion that this is a fit case in which the powers under Section 389 of the Cr.P.C. can be invoked to suspend the sentence and grant bail to the applicant.”
Advocate E.A. Haris represented the Applicant while DSG Of India Manu S represented the Respondents.
The case revolved around a violent attack on Prof. T.J. Joseph, a Malayalam Professor at Newman College, Thodupuzha. There was a controversy, wherein, the Professor had set a controversial question paper for his students in the year 2010. The question contained a passage that was perceived by a section of the community as insulting to Prophet Muhammed. The question paper became public leading to widespread protest and condemnation. The most vociferous protests were from the Popular Front of India (PFI) and the Social Democratic Party of India (SDPI). Various pamphlets were issued and rallies were held with a view to threatening the college authorities and the Professor.
The incident occured in 2010, when Prof. Joseph and his family members went to a Church to attend Sunday mass. While returning in the same car, a group of men armed with deadly weapons and explosive substances came and pulled out Prof. Joseph, and inflicted multiple cut injuries. They chopped off the right hand which was used by the Professor to pen the controversial question and threw it away to the nearby compound. The NIA took over the investigation.
The investigation revealed that the accused were leaders/active members of the PFI and SDPI and motivated with a specific intention of taking revenge on the Professor, hatched a criminal conspiracy by gathering at various places on various dates and through multiple means of communication and thereupon agreed to form a terrorist gang to physically attack and commit the murder of Professor, so as to strike terror in the minds of the people and to promote enmity and hatred between different groups on ground of religion. Before the NIA court, all 37 accused persons were called upon to face trial. The Trial Court convicted 13 accused persons and acquitted the remaining 18 accused persons.
As per the prosecution, the applicant is the master conspirator. He allegedly participated in nearly all conspiracy meetings. He was accused of recruiting members for the terrorist gang, assigning specific duties. He allegedly monitored and supervised the entire operation, maintaining constant contact with the piloting team using a mobile phone, and successfully executed post-incident plans to harbour the assailants. Nasar absconded after the incident and surfaced only in 2013.
The Bench noted that the applicant herein surrendered in 2015 and the judgment was delivered in the year 2023. As of date, the applicant had been under incarceration for over 9 years. The Bench also considered another aspect that some of the accused in the very same case, who faced trial during the first phase were convicted by the Sessions Judge for the offence under Section 20 of the UA(P) Act and were sentenced to undergo RI for 5 years whereas the appellant, who faced the very same allegation found himself sentenced to undergo life imprisonment. Similarly placed accused against whom identical allegations were there in the charge underwent their sentence and were released from prison.
It was further noticed that as the appeal is of the year 2013, and appeals preferred by accused undergoing sentence are pending, it may not be possible to take up the appeal and hear the matter in the near future. Furthermore, the appeals seeking enhancement of sentence in the earlier case were also pending.
Reliance was also placed upon the judgment of the Apex Court in Shivani Tyagi v. State of U.P. & Anr. [2024] 5 S.C.R. 36 wherein it has been emphasized that the mere fact of incarceration for a particular period, especially in cases where life imprisonment is imposed, cannot, by itself, justify invoking the power under Section 389 of the Cr.PC without taking relevant factors into consideration. The bench also referred to the judgment in Satender Kumar Antil v. CBI, [ (2022) 10 SCC 51] wherein it has been held that when the circumstances are such that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the appellant.
“The applicant has been undergoing incarceration, at the pre-conviction and post-conviction phases, for over 9 years. Furthermore, the fact that the accused facing the same allegations were earlier imposed a lesser term of imprisonment and have been released after having undergone the sentence is a factor that cannot be ignored. Additionally, the appeals filed by the NIA against the findings of the learned Sessions Judge are being considered in separate appeals, which have not yet been taken up. There is also the likelihood of delay, as the prime accused has surrendered, and the learned Sessions Judge may have to take up the trial and dispose of it in accordance with the law and some of the original records may be required for that purpose”, the Bench noted.
The Bench allowed the application and suspended the sentence imposed on the applicant on the files of the Special Court of Trial of NIA Cases, Kerala. The Bench also enlarged the applicant on bail subject to execution of a bond for a sum of Rs 1 lakh.
Cause Title: M.K. Nasar v. Union Of India [Case No. Crl.M.A.No. 1 of 2024 in Crl. A. 1204 of 2023]
Appearance:
Applicant: Advocates E.A.Haris, M.A. Ahammad Saheer, Muhammed Yasil, P.C.Noushad, Wakarul Islam K.S., Renjith B.Marar
Respondents: DSG Of India Manu S., Advocate Sindhu Ravishnkar
