Telangana High Court
Thallapalli Arogyam vs Union Of India on 21 March, 2024
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P. SREE SUDHA
CRIMINAL APPEAL Nos.1068, 1062 OF 2023, 23 AND 130 OF 2024
COMMON JUDGMENT:
(Per Hon'ble Sri Justice K. Lakshman) Heard Mr. Mummaneni Srinivasa Rao, Mr. E. Venkata Reddy, learned counsel, Mr. D. Shashi Preetam, learned counsel representing Mr. Nageshwar Rao Pujari and Mr. R.Prasanth, learned counsel for the appellants/A.1, 3, 6 and 7 and also Mr. P. Vishnuvardhan Reddy, learned Special Public Prosecutor for NIA appearing on behalf of the respondent.
2. Criminal Appeal No.1068 of 2023 is filed by Accused No.1 challenging the order dated 22.11.2023 passed by learned IV Additional Metropolitan Sessions Judge - cum - Special Court for NIA Cases, Nampally, Hyderabad (for short 'Designated Court/Special Court') dismissing the application filed by him vide Crl.M.P. No.1620 of 2023 in RC-03/2023/NIA/HYD seeking regular bail, whereas Crl.A.Nos.23 of 2024 and 1062 of 2023 are filed by A.3 and A.6 challenging the similar orders, both dated 07.11.2023 passed in Crl.M.P. Nos.1465 and 1389 of 2023 and Crl.A.No.130 of 2024 is 2 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch filed by A.7 challenging the order dated 18.01.2024 passed in Crl.M.P.No.1855 of 2023 respectively.
3. The case of the NIA in brief is as under:
i) On 05.06.2023 at 4.00 P.M. at the outskirts of Dosillapalli Village, Cherla Mandal, TVR Suri, Sub-Inspector of Police, Cherla Police Station, while conducting vehicle checking, intercepted A.1, 2 and 3 along with incriminating material objects, such as one drone, cortex wire bundles - 2 each 80 meters length, gelatin sticks - 10, detonators - 5 ( for short, 'case property') while accused Nos.1 to 7 conspired to hand over the same to the underground cadres of proscribed organization of CPI (Maoist) i.e., accused Nos.8 to 11 and others, for making landmine and IED firearms.
ii) It was also revealed that accused Nos.1 to 3 purchased one Lathe machine and used to cut the iron rods to make firearms, one drone to observe the police party movements in the forest area and also received explosive substance from accused Nos.4, 5, 6 and 7 which they have received from accused No.12, while accused Nos.1 to 3 were trying to supply the said items to banned CPI (Maoist) Party leaders pursuant to the conspiracy. The appellant/A.6 was apprehended in connection with Cr.No.50 of 2023 of Dummuguda 3 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch police Station and he was produced in the present crime i.e. Cr.No.52 of 2023 on P.T. Warrant. Material objects were seized from the appellants/A.1 and A.3. They were produced on PT warrants before the learned Magistrate Court at Bhadrachalam on 12.06.2023.
iii) Initially, a case in Crime No.52 of 2023 was registered on 05.06.2023 by Cherla Police Station for the offences under Sections - 120-B, 143, 147 and 148 read with 149 of IPC and Sections - 8 (i) and
(ii) of the Telangana Public Security Act, 1992 ( for short, TPS Act), Section - 5 of the Explosives Substance Act, 1908 (for short, ES Act) and Sections - 10, 13, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 (for short, UAPA). Subsequently, investigation was entrusted to NIA pursuant to the directions of the Central Government, the case was re-registered as RC No.3 of 2023/NIA/Hyderabad for the aforesaid offences.
iv) Thus, accused Nos.1 to 7 got acquaintances with banned CPI (Maoist) Party UG armed Cadre i.e., accused Nos.8 to 11 and others and criminally conspired with them by being an associate with them to supply explosives and other items which are used to make landmines, IED and firearms.
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KL,J & PSS,J Crl.A. No.1068 of 2023 & batch
4. The appellants/A.1, A.3, A.6 and A.7 have filed separate applications before the trial Court under Section 439 of Cr.P.C. seeking regular bail. The trial Court, vide orders, dated 07.11.2023, 22.11.2023 and 18.01.2024 dismissed the said applications. Challenging the same, A.1, A.3, A.6 and A.7 have preferred these appeals seeking bail on the following grounds:-
i. The Investigating Officer in the said crime informed that he has already filed chargesheet, whereas, trial Court dismissed bail applications on the ground that the Investigation is pending.
ii. The police arrested A.1 and A.3 on 06.06.2023, A.6 on 05.06.2023 and A.7 on 12.06.2023 in the present crime and lodged in District Jail, Khammam. A.6 was also accused in Cr.No.50 of 2023. NIA Authorities filed a remand extension petition and police custody petition before the Designated Court i.e., IV Additional Metropolitan Sessions Judge, Hyderabad.
iii. The appellants herein are innocent and they are falsely implicated in the present crime. The entire material objects were recovered from the possession of A.1, A.3 and A.7/the appellants herein and A.2 and produced before the Designated Court.
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KL,J & PSS,J Crl.A. No.1068 of 2023 & batch iv. The allegations levelled against the appellants herein are that A.1 and A.3 have received explosive substances from A.6 and A.7, who received the same from A.12 and handed over to accused No.1 for supplying the same to the UG Cadre accused persons.
v. The police have arrested the appellants on the ground that they are supplying the explosives to the Banned CPI Maoist leaders pursuant to the conspiracy and arrested them. Except the said allegation, there is no proof that the appellants involved in the present crime.
vi. A.1 is Auto driver. He is having agricultural lands. He is permanent resident of Devanagaram Village, Charla Mandal, Bhadradri Kothagudem District. A.6 hails from a reputed family and the present false case will create damage to his reputation. A.3 is a small businessman. He is having agricultural lands. He is permanent resident of Pamedu Village, Bijapur District, Chattisgarh State. A.7 is the driver of A.6 and resident of Kesavapuram Village, Elakurthy Mandal, Hanumakonda District. Except the present case, there are no other cases pending against them.
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KL,J & PSS,J Crl.A. No.1068 of 2023 & batch vii. A.3 is in jail since 05.06.2023. A.1 and A.6 are from 06.06.2023, while A.7 is from 12.06.2023 i.e., more than 180 days. Therefore, the appellants herein are in judicial custody for more than 180 days.
viii. Since entire investigation is completed and the NIA laid charge sheet, question of tampering witnesses or evidence will not arise.
ix. With the said submissions, they sought to release the appellants herein on bail.
CONTENTIONS OF NIA:
5. Mr. P. Vishnuvardhan Reddy, learned Special Public Prosecutor for NIA would submit that during the course of investigation, the appellants were examined in judicial custody in which they disclosed the details of case property i.e., explosives and their intention to hand over the same to the underground cadres of proscribed organization of CPI (Maoist) i.e., accused Nos.8 to 11 and others, for making landmine and IED firearms. They have conspired with other accused to supply the case property to the said organization. After completion of investigation, they filed charge sheet before the Designated Court along with all the related 7 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch documents, statements and material evidence which clearly establish the case against the appellants herein. Completion of investigation alone may not be considered as a condition for claiming bail. Since some accused in this case are absconding, it is not safe to grant bail to the appellants herein. The offences are grave and serious in nature.
On considering the said aspects only, the Designated Court dismissed the bail applications filed by the appellants. There is no error in it. With the said submissions, he sought to dismiss these appeals. ANALYSIS AND FINDING OF THE COURT:
6. According to the prosecution, the allegations levelled against appellants herein/A.1, A.3, A.6 and A.7 are that A.6 along with A.2, A.4, A.5 and A.7 being associates of banned CPI (Maoist) Party UG armed Cadre i.e., accused Nos.8 to 11 and others, conspired to supply the explosives and other items which are used to make landmines, IED and firearms to them. As part of the said conspiracy, A.6 along with A.4 and A.5 received explosive substance from A.12 and handed over the same to A.1 and A.3.
7. The offences alleged against the appellants are under Sections 120-B, 143, 147 and 148 read with 149 of IPC, Sections - 8 (1) and (2) of the TPS Act, Section - 5 of ES Act, Sections - 10, 13, 18 8 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch and 20 of the UAPA. A.6 herein is also an accused in Cr.No.50 of 2023 pending on the file of Dummuguda Police Station. He was arrested in the said crime and produced in the present crime on P.T. warrant. Thus, there are serious allegations against all the accused.
8. It is relevant to note that Section 43-D (5) of the UAPA is relevant and the same is extracted as follows:-
5. Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:
Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
9. Thus, the following mandatory requirements are essential as per Section 43-D (5) of the UAPA:-
i. Opportunity of being heard to the Public Prosecutor , ii. Court has to come to an opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
In the present case, an opportunity was given to the Public Prosecutor.
NIA had filed counter in the bail petitions before the Designated Court and this Court. Now, this Court has to peruse the report filed under Section - 173 of the Cr.P.C. and material including the statements of 9 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch protected witnesses and come to a conclusion as to whether there are reasonable grounds for believing that the accusation against the appellants is prima facie true.
10. The Apex Court held that it is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The duty of the Judges to give reasoned decisions lies at the heart of this commitment. Questions of the grant of bail concern both liberty of individuals undergoing criminal prosecution as well as the interest of criminal justice system in ensuring that those who commit crimes are not afforded the opportunity to obstruct justice. Judges are duty bound to explain the basis on which they have arrived at a conclusion.
11. In Mahipal v. Rajesh Kumar @ Polia 1, the Apex Court, discussed with regard to the power of granting bail under Section 439 of Cr.P.C. and held that the power to grant bail under Section 439 of Cr.P.C. is of a wide amplitude. Though the grant of bail involves the 1 . (2020) 2 SCC 118 10 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch exercise of discretionary power of the Court, it has to be exercised in a judicious manner and not as a matter of course. In the said case, the guiding factors for exercise of power to grant bail as held in Ram Govind Upadhyay v. Sudarshan Singh 2, were referred, which are as follows:
"3. Grant of bail though being a discretionary order - but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case...The nature of the offence is one of the basic considerations for the grant of bail - more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.
4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:
(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the 2 . (2002) 3 SCC 598 11 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the Accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be (2002) 3 SCC 598 considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the Accused is entitled to an order of bail."
i) It was further held in the very same judgment that the determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the Accused are important. No straight jacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the 12 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch commission of the crime by the Accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the Accused had committed the offence and on a balance of the considerations involved, the continued custody of the Accused sub-serves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail.
12. In Devendar Gupta v. National Investigation Agency 3, a Division Bench of combined High Court of Andhra Pradesh at Hyderabad had considered the relevant provisions of UAPA, the expression used in Section - 43-D (5) of UAPA i.e., 'prima facie' 'reasonable grounds' etc. and laid down certain instances or circumstances which would provide adequate guidance for the Court to form an opinion, as to whether the accusation in such cases is 'prima facie true'.
"The following instances or circumstances, in our view, would provide adequate guidance for the Court to form an opinion, as to whether the accusation in such cases is "prima facie true":3
. 2014 (2) ALD (Cri) 251 13 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch
1) Whether the accused is/are associated with any organization, which is prohibited through an order passed under the provisions of the Act;
2) Whether the accused was convicted of the offences involving such crimes, or terrorist activities, or though acquitted on technical grounds; was held to be associated with terrorist activities;
3) Whether any explosive material, of the category used in the commission of the crime, which gave rise to the prosecution;
was recovered from, or at the instance of the accused;
4) Whether any eye witness or a mechanical device, such as CC camera, had indicated the involvement, or presence of the accused, at or around the scene of occurrence; and
5) Whether the accused was/were arrested, soon after the occurrence, on the basis of the information, or clues available with the enforcement or investigating agencies."
13. In M. Londhoni Devi v. National Investigation Agency 4, a Division Bench of Gauhati High Court held that accused is an active member of a terrorist organization, even then the nature of active involvement would depend on the evidence led by the prosecution. On a given set of facts, even an active member may be sentenced to imprisonment only for a short while, every active member need not be 4 . 2012 (110) AIC 384 14 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch sentenced to imprisonment for life. Therefore, merely because an allegation has been made, the appellant is an active member of a terrorist organization, such as UNLF would not ipso facto attract the severest penalty under the Statute.
14. In Dhan Singh v. Union of India 5, a Division Bench of the Bombay High Court held that the word "prima facie" is coupled with the word "true", it implies that the Court has to undertake an exercise of crosschecking the truthfulness of the allegations made in the complaint, on the basis of the materials on record. If the Court finds, on such analysis, that the accusations are inherently improbable or wholly unbelievable, it may be difficult to say that a case, which is "prima facie true", has been made out. In doing this exercise, the Court has no liberty to come to a conclusion, which may virtually amount to an acquittal of the accused. Mere formation of opinion by the Court, on the basis of the material placed before it, is sufficient. The Court also has to undertake an exercise of cross-checking truthfulness of the allegations made in the complaint, on the basis of the material on record.
5 . MANU/MH/3894/2019 15 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch
15. In Yedala Subba Rao v. Union of India 6, the Apex Court referring to Sections - 25, 26 and 27 of the Evidence Act held that the essential ingredient of the Section - 27 is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence. The embargo on statements of the accused before the police would not apply if all the above conditions are fulfilled.
16. In Vernon vs. State of Maharashtra 7, the Apex Court considering the principle laid down by it in National Investigatio Agency vs. Zahoor Ahmad Shah Watali 8 in paragraph No.36 held as under:
36. In the case of Zahoor Ahmad Shah Watali (supra), it has been held that the expression "prima facie true" would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the charge sheet must prevail, unless overcome or 6 . (2023) 6 SCC 65 7 . 2023 SCC OnLine SC 885 8 . (2009) 5 SCC 1 16 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch disproved by other evidence, and on the face of it, materials must show complicity of such accused in the commission of the stated offences. What this ratio contemplates is that on the face of it, the accusation against the accused ought to prevail. In our opinion, however, it would not satisfy the prima facie "test" unless there is at least surface-
analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth. In the case of the appellants, contents of the letters through which the appellants are sought to be implicated are in the nature of hearsay evidence, recovered from co-accused. Moreover, no covert or overt terrorist act has been attributed to the appellants in these letters, or any other material forming part of records of these two appeals. Reference to the activities of the accused are in the nature of ideological propagation and allegations of recruitment. No evidence of any of the persons who are alleged to have been recruited or have joined this "struggle" inspired by the appellants has been brought before us. Thus, we are unable to accept NIA's contention that the appellants have committed the offence relating to support given to a terrorist organisation." 17
KL,J & PSS,J Crl.A. No.1068 of 2023 & batch The Apex Court also considered the scope of 'Terrorist Act' defined under Sections - 2 (k) and 15 of UAPA and referring to several judgments rendered by it held that mere holding of certain literatures through which violent acts may be propagated would not ipso facto attract the provisions of Section - 15 (1) (b) of the UAPA.
17. In Anand Tetlumbde v. The National Investigation Agency 9, a Division Bench of Bombay High Court on consideration of material placed before it and also referring to the provisions of UAPA held that while dealing with bail application, Court has to consider that the material placed by the Investigating Agency has to inspire confidence to bring the accused act as alleged for punishment prescribed under the provisions of the UAPA and also the criminal antecedents.
18. It is relevant to note that in Gurwinder Singh vs. State of Punjab 10, the Apex Court considering the scope of Section - 43-D of the UAPA and also the principle laid down by it earlier cases including Zahoor Ahmad Shah Watali (Supra) held as under:
"19. The courts are, therefore, burdened with a sensitive task on hand. In dealing with bail 9 . 2023 (1) Bom.CR (Cri) 416 10 . 2024 LiveLaw (SC) 100 18 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch applications under UAP Act, the courts are merely examining if there is justification to reject bail. The 'justifications' must be searched from the case diary and the final report submitted before the Special Court. The legislature has prescribed a low, 'prima facie' standard, as a measure of the degree of satisfaction, to be recorded by Court when scrutinising the justifications [materials on record]. This standard can be contrasted with the standard of 'strong suspicion', which is used by Courts while hearing applications for 'discharge'. In fact, the Supreme Court in Zahoor Ali Watali2 has noticed this difference, where it said:
"In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act."
20. In this background, the test for rejection of bail is quite plain. Bail must be rejected as a 'rule', if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied - that the Courts would proceed to decide the bail application in accordance with the 'tripod test' (flight risk, influencing witnesses, tampering with evidence). 19
KL,J & PSS,J Crl.A. No.1068 of 2023 & batch This position is made clear by Sub-section (6) of Section 43D, which lays down that the restrictions, on granting of bail specified in Sub-section (5), are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail.
21. On a textual reading of Section 43 D(5) UAP Act, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarised in the form of a twin-prong test :
1) Whether the test for rejection of the bail is satisfied?
1.1 Examine if, prima facie, the alleged 'accusations' make out an offence under Chapter IV or VI of the UAP Act 1.2 Such examination should be limited to case diary and final report submitted under Section 173 CrPC;
2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC ('tripod test')?
On a consideration of various factors such as nature of offence, length of punishment (if convicted), age, character, status of accused etc., the Courts must ask itself:
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KL,J & PSS,J Crl.A. No.1068 of 2023 & batch
2.1 Whether the accused is a flight risk?
2.2. Whether there is apprehension of the accused tampering with the evidence?
2.3 Whether there is apprehension of accused influencing witnesses?
22. The question of entering the 'second test' of the inquiry will not arise if the 'first test' is satisfied. And merely because the first test is satisfied, that does not mean however that the accused is automatically entitled to bail. The accused will have to show that he successfully passes the 'tripod test'.
Test for Rejection of Bail: Guidelines as laid down by Supreme Court in Watali's Case
23. In the previous section, based on a textual reading, we have discussed the broad inquiry which Courts seized of bail applications under Section 43D(5) UAP Act r/w Section 439 CrPC must indulge in. Setting out the framework of the law seems rather easy, yet the application of it, presents its own complexities. For greater clarity in the application of the test set out above, it would be helpful to seek guidance from binding precedents. In this regard, we need to look no further than Watali's case which has laid down elaborate guidelines on the approach that Courts must partake in, in their application of the bail limitations under the UAP Act. On a perusal of 21 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch paragraphs 23 to 29 and 32, the following 8-point propositions emerge and they are summarised as follows:
• Meaning of 'Prima facie true' [para 23]: On the face of it, the materials must show the complicity of the accused in commission of the offence. The materials/evidence must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence.
• Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet and Post Charges -
Compared [para 23]: Once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge sheet (report under Section 173 CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case.
• Reasoning, necessary but no detailed evaluation of evidence [para 24]: The exercise to be undertaken by the Court at this stage--of giving reasons for grant or nongrant of bail--is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage.22
KL,J & PSS,J Crl.A. No.1068 of 2023 & batch • Record a finding on broad probabilities, not based on proof beyond doubt [para 24]: "The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise."
• Duration of the limitation under Section 43D(5) [para 26]: The special provision, Section 43-D of the 1967 Act, applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof.
• Material on record must be analysed as a 'whole'; no piecemeal analysis [para 27]: The totality of the material gathered by the investigating agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance.
• Contents of documents to be presumed as true [para 27]: The Court must look at the contents of the document and take such document into account as it is.
• Admissibility of documents relied upon by Prosecution cannot be questioned [para 27]: The materials/evidence collected by the investigation agency in support of the accusation against the accused in the first information report must prevail until contradicted and overcome or disproved by other evidence....... In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible.
24. It will also be apposite at this juncture to refer to the directions issued in Devender Gupta v. National Investigating Agency [(2014 (2) ALD Cri.251] wherein a Division Bench of the High 23 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch Court of Andhra Pradesh strove to strike a balance between the mandate under Section 43D on one hand and the rights of the accused on the other. It was held as follows:
"The following instances or circumstances, in our view, would provide adequate guidance for the Court to form an opinion, as to whether the accusation in such cases is "prima facie true":
1) Whether the accused is/are associated with any organization, which is prohibited through an order passed under the provisions of the act;
2) Whether the accused was convicted of the offenses involving such crimes, or terrorist activities, or though acquitted on technical grounds; was held to be associated with terrorist activities;
3) Whether any explosive material, of the category used in the commission of the crime, which gave rise to the prosecution; was recovered from, or at the instance of the accused;
4) Whether any eye witness or a mechanical device, such as CC camera, had indicated the involvement, or presence of the accused, at or around the scene of occurrence; and
5) Whether the accused was/were arrested, soon after the occurrence, on the basis of the information, or clues available with the enforcement or investigating agencies."
25. In the case of Kekhriesatuo Tep and Ors. v. National Investigation Agency [(2023) 6 SCC 58] the Two-Judge Bench (Justice B.R. Gavai & Justice Sanjay Karol) while dealing with the bail application for the offence of supporting and raising funds for terrorist organization under 24 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch section 39 and 40 of the UAP Act relied upon NIA v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1] and observed that:
"while dealing with the bail petition filed by the accused against whom offences under chapter IV and VI of UAPA have been made, the court has to consider as to whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. The bench also observed that distinction between the words "not guilty" as used in TADA, MCOCA and NDPS Act as against the words "prima facie" in the UAPA as held in Watali's Case (supra) to state that a degree of satisfaction required in the case of "not guilty" is much stronger than the satisfaction required in a case where the words used are "prima facie"
26. In the case of Sudesh Kedia v. Union of India [(2021) 4 SCC 704] the Bench of Justice Nageswara Rao and Justice S. Ravindra Bhat while dealing with a bail application for the offence u/s. 17, 18 and 21 of the UAP Act relied upon the principle propounded in Watali's case (supra) and observed that:
"the expression "prima facie" would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows that complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the 25 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch chain of facts constituting the stated offence, unless rebutted or contradicted."
19. In the light of the aforesaid discussion, it is relevant to note that the allegations levelled against the appellants - accused are that accused Nos.1 to 7 including the appellants herein got acquainted with the underground cadres of the proscribed organization CPI (Maosit) i.e., accused Nos.8 to 11 and others and criminally conspired with them to supply explosive and other items which are used to make landmines and IED and firearms. In pursuance of the said conspiracy, accused Nos.1 to 3 purchased one Lathe Machine, used to cut the iron rods to make firearms, one Drone to observe the Police Party movements in the forest area and also received explosive substances from accused Nos.4 to 7, who had received from accused No.12. While accused Nos.1, 2 and 3 were trying to supply the aforesaid items to banned CPI (Maoist) Party leaders in pursuance of the aforesaid conspiracy, they were apprehended by the Police on 05.06.2023 at 16.00 hours at the outskirts of Dosillapalli Village, Cherla Mandal.
20. It is no doubt true, that the Central Government banned the Communist Party of India (Maoist) under the UAPA terming it a 26 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch terrorist organization. It is also not in dispute that in pursuance of the criminal conspiracy, the appellants said to have committed the aforesaid offences. There are serious allegations against them. However, the NIA after completion of investigation laid the charge sheet against the accused including the appellants herein. Incriminating material was seized and produced before the Designated Court. The appellants are in judicial remand for the last more than 180 days. The only apprehension of the NIA is that they have recorded the statements of protected witnesses, there is every possibility of the appellants threatening them and interfering with trial, in which event, the Designated Court will not be in a position to conduct fair trial.
21. It is apt to note that if the appellants threaten any witness including protected witnesses or interfere with fair trial, NIA can as well file an application seeking cancellation of bail. But, it cannot be a ground to oppose bail or deny bail by this Court. The appellants are in jail for the last more than 180 days i.e., from 05.06.2023, 06.06.2023 and 12.06.2023 respectively. It is also apt to note that there is no loss of property and loss of life of any person. At the same time, the appellants cannot resort to illegal activities. 27
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22. It is also apt to note that Section - 2 (k) of UAPA defines 'terrorist act'; Section - 2 (o) defines 'unlawful activity'; Section - 2
(p) defines 'unlawful association'; and Section - 15 deals with 'terrorist act'. In the said provisions, there is no mention that provoking, recruitment, administering oath, sending to training camps etc., which are the allegations leveled against the appellants, amount to 'terrorist act'. Section - 18 of the UAPA deals with punishment for conspiracy etc. Section 20 deals with punishment for being member of terrorist gang or organization. It is only a penal provision. Ultimately it has to be proved by NIA by producing evidence.
23. Admittedly, in the present case, the Investigating Officer has already completed investigation and laid charge sheet. Cognizance was taken. It is at the stage of 207 Cr.P.C. Definitely, trial will take certain time. As discussed above, the appellants are in jail since more than 180 days. Accused No.1 is an auto-driver, accused No.3 is doing business and A.6 are also drivers. Right guaranteed to them under Article - 21 of the Constitution of India is also to be considered. 28
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24. The Apex Court referred to the factors to be borne in mind while considering an application for bail in Prasanta Kumar Sarkar v Ashis Chatterjee 11, and the said factors are as follows:
"(i) whether there is any prima facie or reasonable ground to believe that the Accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the Accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the Accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
25. As discussed above, the only apprehension of the NIA is that the appellants may threaten the witnesses including protected witnesses and may interfere with the trial in which event the Special Court may not be in a position to conduct fair trial. In such an event, NIA is at liberty to file an application seeking cancellation of bail.
26. It is apt to note that bails were granted to the appellants/accused in Cr.No.50 of 2023 of Dummuguda Police Station.
27. As already stated above, the entire investigation was completed and charge sheet was laid against the appellants and other 11 . (2010) 14 SCC 496 29 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch accused by NIA. In fact, on the application filed by theNIA, the judicial remand was extended. In the light of the same, nothing remains to investigate by the NIA except to proceed with trial before the Special Court against the appellants in accordance with procedure laid down under Code of Criminal Procedure, 1973. Therefore, we are of the considered view that the appellants are entitled for bail. However, in view of gravity of the offences said to have committed by the appellants and to secure their presence before the Designated Court to proceed with trial, some stringent conditions to be imposed while granting bail. The said aspects were not considered by the Designated Court while dismissing the bail applications filed by the appellants. Therefore, the impugned orders are liable to be set aside. However, the findings reached by this Court in granting bail are only prima facie views expressed by this Court herein in deciding the present appeals and the same will not have any bearing on the Special Court while deciding the main Sessions Cases.
27. All these Criminal Appeals are allowed and the impugned orders, dated 22.11.2023, 07.11.2023 and 18.01.2024 in Crl.M.P.Nos.1620,1389, 1465 and 1855 of 2023 in RC-03/2023/ NIA/HYD passed by learned IV Additional Metropolitan Sessions 30 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch Judge - cum - Special Court for NIA Cases, Nampally, Hyderabad, are hereby set aside. The appellants - accused Nos.1, 3, 6 and 7 are enlarged on bail with the following conditions:
i) The appellants - accused Nos.1, 3 and 6 shall execute a personal bond for Rs.25,000/- (Rupees Twenty Five Thousand Only) each with two (02) sureties each for a like sum each to the satisfaction of IV Additional Metropolitan Sessions Judge - cum
- Special Court for NIA Cases, Nampally, Hyderabad;
ii) The appellants - accused No.7 shall execute a personal bond for Rs.10,000/- (Rupees Ten Thousand Only) with two (02) sureties for a like sum each to the satisfaction of IV Additional Metropolitan Sessions Judge - cum - Special Court for NIA Cases, Nampally, Hyderabad;
iii) The appellant - accused No.1 shall report before the Station House Officer, Cherla Police Station, Bhadradri - Kothagudem District once in a week i.e., on every Sunday between 10.00 A.M. and 5.00 P.M. until further orders;
iv) The appellant - accused No.3 shall report before the Station House Officer, Pamedu Police Station, Bijapur District, 31 KL,J & PSS,J Crl.A. No.1068 of 2023 & batch Chhattisgarh State once in a week i.e., on every Sunday between 10.00 A.M. and 5.00 P.M. until further orders;
v) The appellant - accused No.6 shall report before the Station House Officer, Duggondi Police Station, Warangal District once in a week i.e., on every Sunday between 10.00 A.M. and 5.00 P.M. until further orders;
vi) The appellant - accused No.7 shall report before the Station House Officer, Elkakurthy Police Station, Hanumakonda District once in a week i.e., on every Sunday between 10.00 A.M. and 5.00 P.M. until further orders;
vii) They shall not commit similar or any other offences during bail period;
viii) They shall not threat, intimidate or influence the prosecution witnesses including protected witnesses;
ix) They shall not interfere with the trial in the said Cases in any manner directly or indirectly;
x) They shall surrender their Passports, if not surrendered before the Designated Court;
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xi) They shall co-operate with the Designated Court in disposal of the aforesaid Sessions Cases in accordance with law as expeditiously as possible.
xii) Liberty is granted to NIA to file an application seeking cancellation of bail, in the event of the appellants/A.1,A.3, A.6 and A.7 violate any of the aforesaid conditions. As a sequel, miscellaneous applications, if any, pending in the appeals shall stand closed.
_________________ K. LAKSHMAN, J _________________ P. SREE SUDHA, J Date: 21st March, 2024 VVR Note: Issue C.C. today.
b/o. vvr.