In A Rare Move, Kerala High Court Examines Witness At Appeal Stage Allowing NIA's Plea

In an extraordinary step, the Kerala High Court on Tuesday allowed witness examination before the Court at the appellate stage. The development happened in the in the Kashmir terror recruitment case. Generally, witness examinations in criminal appeals are completed at the trial courts and the High Courts only evaluate the evidence gathered by the trial court. 

While considering appeals filed by the convicted accused and the National Investigation Agency (NIA) against an NIA court decision, the Division Bench of Justice K Vinod Chandran and Justice C Jayachandran allowed the examination of a BSNL official who had issued a call record showing communication between the accused and some persons in Kashmir.

The Ernakulam NIA Special Court had convicted 13 persons and acquitted 5 in the case. The convicted accused moved the High Court challenging their conviction while the NIA moved the Court challenging the acquittal of the remaining 5. 

The terror recruitment case revolves around the allegations that persons from Kerala are being recruited in terror camps in Jammu and Kashmir.  The matter came to light in 2008 when security forces in Kashmir shot down some suspected terrorists, out of which four turned out to be youths from Kerala.

The NIA then started investigating into possible organised recruitment of youths from Kerala to Kashmir to take part in terrorist activities. The probe resulted in charges being filed against 20 persons, including suspected Lashkar-e-Taiba operative, Thadiyantevida Nazeer and his associate Shafas. Both men were recently acquitted by the High Court in the Kozhikode twin blasts case.

The counsel for the convicted appellants argued that the BSNL official had not given the mandatory attestation under Section 65B of the Indian Evidence Act on the call record presented by him. 

ASGI S Manu appearing on behalf of NIA, therefore, filed a special petition seeking permission to cross-examine the said official. Upon evaluating the facts of the case, the Bench deemed it appropriate to allow the said petition and thereby summoned the BSNL official on April 8. 

"Considering the facts of the case and also the decision reported in Arjun Banditiao Khotkar v Kailash Kushanrao Gorantval & Ors., we issue summons to the executant of the Certificate under Section 65B, produced along with memo dated 07.04.2020, to appear before this Court for taking evidence on 19.04.2022, through the e-mail ID furnished in the application submitted by the ASG and also issue copy to the ASG for service." 

In this order, the accused who were out on bail were directed to appear before in person while those in custody were ordered to appear via video conferencing from the prisons in which they are currently incarcerated.

The official was examined by the ASGI before the Bench reserved its verdict on the appeals. The Court recorded the statement of the official and accepted the call record certificate issued by BSNL as additional evidence.

Case Title: M.H. Faisal v. State of Kerala & connected matters.