Kerala High Court: In a suspension of sentence application filed by MK Nasar, the master conspirator of the 2010 hand-chopping case, the Division Bench of Raja Vijayaraghavan V.* and P.V. Balakrishnan, JJ., held that it was a fit case for suspension of sentence under Section 389 of the Code of Criminal Procedure, 1973 (‘CrPC’) since he already served 9 years, similarly placed accused have been released after serving or received shorter sentences, and the appeal is not likely to be heard in the near future.
Background
The case revolves around a controversy regarding a question paper that Professor T.J. Joseph, a Malayalam Professor at Newman College, had set, as it contained a passage that was perceived by some people as insulting to Prophet Muhammed. When the question paper became public it led to widespread protest and condemnation, especially from the Popular Front of India (‘PFI’) and the Social Democratic Party of India (‘SDPI’). Various pamphlets were issued, and rallies were held to threaten the college authorities and the Professor. Subsequently, the Professor and his family members were attacked on their way back from Sunday mass by a group of men armed with deadly weapons and explosive substances. They inflicted multiple cut injuries on the Professor and chopped off his right hand. When the family members tried to intervene, they were also attacked.
The investigation revealed that the accused were leaders/active members of the PFI and SDPI and intended to take revenge on the Professor. They hatched a criminal conspiracy and agreed to form a terrorist gang to physically attack and murder the Professor, to strike terror in the minds of the people, and to promote enmity between different groups on grounds of religion. They had chalked out a detailed plan up to the post-incident stage and carried out the attack accordingly.
In the trial, out of the 37 accused, 13 people were convicted and 6 had absconded. The case against the six-absconding accused was split up and refiled, and a judgment was delivered therein.
The Trial Court, after evaluating the entire evidence, labelled MK Nasar as the master conspirator and the leader of the terrorist gang. The Trial Court found that he was instrumental in maintaining a communication link with all the key members. It was found that he played a key role in procuring the vehicle involved, multiple mobile SIM cards and phones. It was found that he was instrumental in holding a series of post-incident conspiracy meetings aimed at providing safe havens for the attackers and obstructing the investigation. He was also found to have attempted destruction of evidence.
However, it was held by the Trial Court that MK Nasar was not directly involved in the commission of the terrorist act and there was no evidence proving his membership in an unlawful assembly, therefore, he was acquitted of offences under Section 143 of the Penal Code (‘IPC’) and Section 16 of the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’).
In a subsequent trial for the very same offence, he was found guilty and given life imprisonment under Section 20 of the UAPA and rigorous imprisonment of 10 years under Section 302 read with Section 120B of IPC and Section 3 of the Explosive Substances Act, 1908.
Against such conviction, MK Nasar filed an appeal wherein the present application for suspension of sentence and release on bail has been filed.
Analysis
The Court noted that since the appeal was from 2013, and the appeals preferred by other accused persons are pending, it may not be possible to hear the matter soon. Additionally, it noted that MK Nasar has been undergoing incarceration, at the pre-conviction and post-conviction phases, for over 9 years. The Court stated that some of the accused, who faced trial during the first phase, were given a lesser term and have already been released after serving their sentence, but MK Nasar, who had the same allegations, was sentenced to life imprisonment. Other similarly placed accused, who had identical allegations had been released as well.
The Court also noted that the NIA had challenged the findings of the Trial Court which were being considered in separate appeals and have not yet been taken up. Lastly, the Court said that there was a likelihood of delay, as the prime accused had surrendered, and the Trial Court may have to take up the trial again for which some of the original records may be required.
Referring to the principles regarding the suspension of sentence laid down by the Supreme Court in the cases of Shivani Tyagi v. State of U.P., 2024 SCC OnLine SC 842 and Satender Kumar Antil v. CBI, (2022) 10 SCC 51, the Court opined that it was a fit case in which the powers under Section 389 of the CrPC can be invoked.
Given these facts and circumstances, the Court suspended the sentence of MK Nasar and granted him bail subject to certain conditions, namely, a bail bond of Rs 1 lakh, prohibition from leaving the country without Court’s permission, prohibition from influencing the trial or influencing the witnesses and prohibition from committing any similar crime while on bail.
[MK Nasar v. Union of India, 2024 SCC OnLine Ker 7306, decided on 12-12-2024]
*Authored by Justice Raja Vijayaraghavan V.
Advocates who appeared in this case:
For the petitioner: Advocates E.A. Haris, M.A. Ahammad Saheer, Muhammed Yasil, P.C. Noushad, Wakarul Islam K.S., and Renjith B. Marar
For the respondent: DSGI
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