REPORTABLE     

IN THE SUPREME COURT OF INDIA   

CRIMINAL APPELLATE JURISDICTION   

CRIMINAL APPEAL NO. _   3____OF 2011 [Arising out of Special Leave Petition (Crl.) No.7999/2010]

 State of Kerala                                            ..      Appellant              -versus-   Raneef                                             ..      Respondent                                             

J U D G M E N T   Markandey Katju, J.

1. Leave granted.

2. Heard learned 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 is a 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 came in a Maruti Van and assaulted Prof. T.J. Jacob of Newman  

College, Thodupuzha and chopped off his right palm from the vicinity of his  

house when he was returning 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. The alleged motive for attacking Prof. Jacob was that he incorporated  

a question for the internal examination of B.Com. paper criticizing Prophet  

Mohammed and Islam.

6. The prosecution case is that the respondent gave medical aid to one of  

the wounded accused in pursuance of a previous plan that if and when any of  

the  assailants  got  injured  in  the  attack  on  Prof.  Jacob  then  immediate  

medical  treatment would be given by the respondent to the injured.  The  

respondent stitched the back of an assailant, which is not the job of a dentist.  

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The respondent, along with the other 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 his house and car.

7. The prosecution has placed reliance on the proviso to Section 43D(5)  

of  the  Unlawful  Activities  (Prevention)  Act,  1967  which  states  that  the  

accused shall not be released on bail if the Court, on perusal of the case  

diary or the report under Section 173 Cr.P.C. is of the opinion that there are  

reasonable grounds for believing that the accusation against such person is  

prima facie true.

8. On the  other  hand,  the  case  of  the  respondent  as  disclosed  in  the  

counter affidavit filed before us is that even according to the prosecution  

case the respondent was not one of the assailants, and he is not named in the  

FIR.  In para 13 of the counter affidavit the respondent has stated that the  

attack on Prof. Jacob is a crime which is to be condemned.  However, as a  

pretext  to  the  investigation  the  police  had lashed out  a  rein  of  terror  on  

innocent people of the minority community, people who are totally innocent  

or even had no knowledge of the crime have been falsely implicated.  54  

persons have been made accused in the crime.  Many residential  houses,  

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mosques and offices were raided and searched, and even minor children and  

women were cruelly tortured both physically and mentally.  Holy books and  

other religious books were thrown out, seized and taken away and bundled  

in  police  stations.   War  like  atmosphere  was  created  in  mosques,  daily  

prayers were disrupted and men illegally detained, and physically tortured in  

custody and false cases booked against innocents.

9. It is further alleged in the counter affidavit that the Popular Front of  

India (PFI) or the Social Democratic Party of India (SDPI) are not militant  

or terrorist organizations.  There is no history of crimes against the party or  

its workers.  They are not banned organizations.   The SDPI is a political  

party recognized by the Election Commission and the PFI is registered under  

the Societies Registration Act.

10. The respondent has alleged that he is a dental surgeon hailing from a  

respectable family in Aluva.  His father Late Dr. Abdul Karim was a doctor  

loved and respected by all, who died as a Civil Surgeon while working in the  

Government  Hospital,  Perumbaroor.   In  2001  the  respondent  started  Al  

Ameen  Multi-Speciality  Dental  Hospital  in  Aluva.   Five  other  doctors  

including the respondent’s wife, who is also a dental surgeon, are working in  

the said hospital.  The respondent has a son aged 9 years and daughter aged  

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5 years.  He claims that he has a very good reputation and is loved by all due  

to the services rendered by him to the poor and needy.  The respondent’s  

elder sister is a post graduate in zoology, and his younger sister is a law  

graduate.  The book entitled ‘Jihad’ said to have been found in his house was  

a Malayalam translation of a book written in Urdu in 1927 by a well known  

and respected religious scholar, Maulana Sayyid Abul Ala Mandoodi and  

has been in circulation for 83 years, and is available in many book shops.

11. The respondent has alleged that he has been falsely implicated only  

because he medically treated one of the alleged assailants.

12. At this  stage we are  not  expressing any opinion as to whether  the  

allegations in the versions of the prosecution or defence are correct or not, as  

evidence  has  yet  to  be  led.   However,  we  would  like  to  make  certain  

observations :

1) We are presently only considering the bail matter and are not deciding  

whether the respondent is guilty or not.  Evidence has yet to be led and the  

trial yet to commence.  Hence the prosecution is yet to establish by proof  

beyond reasonable doubt that the respondent was part of a conspiracy which  

led to the attack on Prof. Jacob.

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2) The case against the respondent is very different from that against the  

alleged assailants.  There is no allegation that the respondent was one of the  

assailants.

We are of the opinion that at this stage there is no prima facie proof  

that  the  respondent  was  involved  in  the  crime.   Hence  the  proviso  to  

Section 43D(5)  has not been violated.

The respondent,  being a doctor,  was under the Hippocratic oath to  

attempt to heal a patient.  Just as it  is the duty of a lawyer to defend an  

accused, so also it is the duty of a doctor to heal.  Even a dentist can apply  

stitches in an emergency.  Prima facie we are of the opinion that the only  

offence that can be leveled against the respondent is that under Section 202  

I.P.C., that is, of omitting to give information of the crime to the police, and  

this offence has also to be proved beyond reasonable doubt.  Section 202 is a  

bailable offence.

3) As regards the allegation that the respondent belongs to the PFI, it is  

true  that  it  has  been  held  in  Redaul  Husain  Khan vs.  National  

Investigation  Agency 2010  (1)  SCC  521  that  merely  because  an  

organization has not been declared as an ‘unlawful association’ it cannot be  

said that the said organization could not have indulged in terrorist activities.  

However, in our opinion the said decision is distinguishable as in that case  

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the accused was sending money to an extremist organization for purchasing  

arms and ammunition.  That is not the allegation in the present case.  The  

decision  in  State  of  Maharashtra  vs.   Dhanendra  Shriram  Bhurle  

2009(11) SCC  541 is also distinguishable because good reasons have been  

given  in  the  present  case  by  the  High  Court  for  granting  bail  to  the  

respondent.

In the present case there is no evidence as yet to prove that the P.F.I.  

is  a  terrorist  organization,  and hence  the  respondent  cannot  be penalized  

merely for belonging to the P.F.I.  Moreover, even assuming that the P.F.I. is  

an illegal organization, we have yet to consider whether all members of the  

organization can 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  the  membership  clause  in  the  

McCarran Act,  1950 distinguished between active ‘knowing’ membership  

and passive, merely nominal membership in a subversive organization, and  

observed :

“The clause does not make criminal all association  with an organization which has been shown to engage in  illegal  activity.   A person may be foolish,  deluded,  or  perhaps  mere  optimistic,  but  he  is  not  by  this  statute  made  a  criminal.   There  must  be  clear  proof  that  the  defendant specifically intends to accomplish the aims of  the organization by resort to violence.”  

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                  In  Elfbrandt  vs.  Russell 384 US 17-19 (1966) Justice Douglas of  

the U.S. Supreme Court speaking for the majority observed :

“Those who join an organization but do not share  its  unlawful  purpose  and who do not  participate  in  its  unlawful activities surely pose no threat, either as citizens  or  as  public  employees.   A  law  which  applies  to  membership  without  the  ‘specific  intent’  to  further  the  illegal  aims of  the  organization  infringes  unnecessarily  on protected freedoms.  It rests on the doctrine of ‘guilt  by association’ which has no place here.”  

In   Joint Anti-Fascist Refugee Committee  vs.  McGrath 341 US  

123 at 174 (1951) Mr. Justice Douglas of the U.S. Supreme Court observed :

“In days of great tension when feelings run high, it  is a temptation to take shortcuts by borrowing from the  totalitarian techniques of our opponents.  But when we  do, we set in motion a subversive influence of our own  design that destroys us from within.”  

We respectfully agree with the above decisions of the U.S. Supreme  

Court, and are of the opinion that they apply in our country too.  We are  

living in a democracy, and the above observations apply to all democracies.

4) In  deciding  bail  applications  an  important  factor  which  should  

certainly be taken into consideration by the Court is the delay in concluding  

the trial.  Often this takes several years, and if the accused is denied bail but  

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is ultimately acquitted, who will restore so many years of his life spent in  

custody?  Is Article 21 of the Constitution, which is the most basic of all the  

fundamental  rights  in  our  Constitution,  not  violated  in  such a  case?   Of  

course this is not the only factor,  but it  is certainly one of the important  

factors in deciding whether to grant bail.

13. In  the  present  case  the  respondent  has  already  spent  66  days  in  

custody (as stated in paragraph 2 of his counter affidavit), and we see no  

reason why he should  be  denied  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 his profession 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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