Bombay High Court
Nisar Ahmed Haji Sayed Bilal vs The State Of Maharashtra on 25 April, 2017
Bench: Ranjit More
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.664 OF 2016
Lt. Col. Prasad Shrikant Purohit ]
Aged about 44 Years, Occ.: Service, ]
R/at : 76/21, Susmriti, Shantishila Society, ]
Law College Road, Erandawana, ]
Pune - 411 004. ]
(At present detained in Taloja Central Jail, ] .... Appellant /
Mumbai. ] (Org. Accused No.9)
Versus
State of Maharashtra, ]
Through National Investigation Agency (NIA), ]
New Delhi. ] .... Respondent
ALONG WITH
CRIMINAL APPLICATION NO.1448 OF 2016
IN
CRIMINAL APPEAL NO.664 OF 2016
Nisar Ahmed Haji Sayed Bilal, ]
Age : 59 Years, Occ.: Retired, ]
Permanently R/at 552, Islampura, ] .... Intervenor /
Galli No.12, Malegaon, Dist. Nashik. ] (Applicant)
In the matter between
Lt. Col. Prasad Shrikant Purohit ]
Aged about 44 Years, Occ.: Service, ]
R/at : 76/21, Susmriti, Shantishila Society, ]
Law College Road, Erandawana, ]
Pune - 411 004. ]
(At present detained in Taloja Central Jail, ] .... Appellant /
Mumbai. ] (Org. Accused No.9)
Versus
State of Maharashtra, ]
Through National Investigation Agency (NIA), ]
New Delhi. ] .... Respondent
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Mr. Shrikant Shivade, i/by Ms. Yogini Abhay Ugale, for the
Appellant-Original Accused No.9.
Mr. Sandesh D. Patil for the Respondent-NIA.
Mr. J.P. Yagnik, A.P.P., for the State of Maharashtra.
Mr. B.A. Desai, Senior Counsel, a/w. Mr. Shaikh Mohammed Sharif,
Mr. Ansar Tamboli, Mr. Shahid Nadeem Ansari and Mr. Arshad, for
the Intervenor-Applicant in Criminal Application Nos.1448 of 2016.
CORAM : RANJIT MORE &
DR. SHALINI PHANSALKAR-JOSHI, J.J.
RESERVED ON : 17 TH FEBRUARY, 2017.
PRONOUNCED ON : 25 TH APRIL 2017.
P.C. :
1. This is an Appeal preferred by original Accused No.9-Lt. Col.
Prasad Purohit in M.C.O.C. Special Case No.1 of 2009 alias M.C.O.C.
Special Case No.8 of 2011 alias N.I.A. Special Case No.1 of 2016,
challenging the order dated 26th September 2016 passed by the
Special Court, constituted under MCOC Act and NIA Act at Mumbai,
thereby rejecting his application for bail (Exhibit No.3139).
2. Appellant is one of the twelve accused, who are charge-sheeted
by 'Anti Terrorist Squad, Mumbai', (for short, "ATS"), under
Sections 302, 307, 326, 324, 427, 153A and 120B of the Indian
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Penal Code, (for short, "IPC"), r/w. Sections 3, 4, 5 and 6 of the
Explosive Substances Act, 1908, (for short, "ES Act"), r/w. Sections
3, 5 and 25 of the Arms Act, 1959, (for short, "Arms Act"), r/w.
Sections 15, 16, 17, 18, 20 and 23 of Unlawful Activities
(Prevention) Act, 1967, (for short, "UAP Act"), r/w. Sections 3(1)
(i), 3(1)(ii), 3(2), 3(4) and 3(5) of the Maharashtra Control of
Organized Crime Act, 1999, (for short, "MCOC Act").
3. Brief facts of the case, which may be relevant for deciding this
Appeal and which are summarized by Special Court in its order and
which are otherwise also not controverted, can be stated as follows :-
4. On 29th September 2008, at about 9:35 pm, the bomb explosion
took place at Malegaon, District Nashik, opposite Shakil Goods
Transport Company, between Anjuman Chowk and Bhiku Chowk.
The blast was caused on account of explosive device fitted in 'LML
Freedom Motor-Cycle', bearing registration No.MH-15-P-4572. In
the said blast, 6 innocent persons lost their lives and about 101
persons had received injuries of various nature, coupled with the
damage caused to the property. As per prosecution case, since it was
a month of holy Ramzan and on 30th September 2008, the holy
festival of Navratra was to commence, it was apparent that the
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bomb-blast was caused with intent to terrorize the people, to cause
loss of lives and property and to create communal rift, to endanger
the security of the State.
5. On the same night, at about 3 a.m., offence came to be
registered in respect of this bomb-blast under C.R. No.130/2008 in
Azad Nagar Police Station, Malegaon, Dist. Nashik, for the offences
punishable under Sections 302, 307, 326, 324, 427, 153A and 120B
of IPC, r/w. Sections 3, 4, 5 and 6 of ES Act r/w. Sections 3, 5 and 25
of the Arms Act.
6. During the course of investigation, the exhibits collected from
the scene of offence were sent to the Forensic Science Laboratory at
Nashik, (for short, "FSL"), and as per the report of the FSL, those
exhibits were found to be containing Cyclonite (RDX) and
Ammonium Nitrate, which are used as highly explosive substances.
7. On 18th October 2008, the provisions of Sections 15, 16, 17, 18,
20 and 23 of the UAP Act were invoked and investigation of the case
was entrusted to Dy.S.P. (Head Quarter), Nashik Rural, as per the
provisions of UAP Act. Thereafter, on 26 th October 2008, A.C.P. and
Chief Investigating Officer of ATS, Mumbai, took the charge of the
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investigation and the case was registered as C.R. No.130/2008. On
5th November 2008, the Appellant came to be arrested in the said
C.R. On 29th November 2008, the provisions of MCOC Act were also
invoked. After carrying out due investigation, ATS filed Charge-
Sheet in the Court on 20th September 2009 against eleven Accused,
including the Appellant, and sought permission to continue further
investigation under Section 173(8) of the Code. Accused No.12-
Praveen Takkalki was arrested subsequent thereto and, accordingly,
Supplementary Charge-Sheet came to be filed against him by ATS on
20th April 2011.
8. During the course of investigation, it was transpired that
registration number of 'LML Freedom Motor-Cycle', used in the
crime, was bogus. The Chassis and Engine Number of the said motor-
cycle were found to be erased. The parts of the motor-cycle were
sent to the FSL. The FSL could successfully restore the engine
number of the said motor-cycle and it was revealed that original
registration number of the said motor-cycle was "GJ-05-BR-1920". It
was further transpired that Accused No.1-Pragya Singh Thakur is
the registered owner of the said vehicle. Accordingly, she was
arrested on 23rd October 2008 at Mumbai along with co-accused
No.2-Shivnarayan Kalsangra and co-accused No.3-Shyam Sahu.
5 APEAL-664-16-Prasad Purohit.doc
9. As per the case of the ATS, as disclosed in the report, under
Section 173(2) of the Code, filed in the Special Court, the present
Appellant i.e. co-accused No.9-Prasad Purohit, who was serving as
'Lt. Colonel' in the Army and was associated with Military
Intelligence and Interior Terrorism (Insurgency Activities), has
floated an organization in the name of "Abhinav Bharat" on 9 th
February 2007. Accused No.4-Ramesh Upadhyay, Accused No.10-
Swami Amrutanand, Sudhakar Dwivedi alias Dayanand Pande and
other co-accused, including some of the prosecution witnesses, were
members of the said organization. The object of the said accused
persons was to turn India into 'Hindu Rashtra' called as "Aryavart".
They wanted to form Government in exile. They were dissatisfied
with the Constitution of India and wanted to prepare their own
Constitution. They had also planned to train the persons for
'guerrilla war'. They had decided to eliminate the persons opposing
their object of formation of 'Hindu Rashtra'. To achieve this object,
Appellant had collected huge amount of funds to the tune of
Rs.21,00,000/- for himself and his 'Abhinav Bharat Organization' to
promote his fundamentalist ideology. The amount so collected was
given to Accused No.6-Ajay Rahirkar, who was 'Treasurer' of
'Abhinav Bharat', who, in turn, disbursed the said amount to other
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co-accused for procuring hand-grenades to commit unlawful
activities. With that object in mind, from time to time, they were
holding meetings at several places, like, Faridabad, Kolkata, Bhopal,
Jabalpur, Indore, Nasik etc., to discuss various aspects for
achieving their goals.
10. As per further case of ATS, in one of the meetings at Bhopal, on
11th / 12th April 2008, the criminal conspiracy to cause bomb-blast
at Malegaon was hatched. In the said meeting, co-accused No.1-
Pragya Singh Thakur undertook the responsibility of providing her
motorcycle and the manpower to cause bomb-blast; whereas,
Appellant took the responsibility of providing explosives, in order to
take revenge of 'Jihadi' activities by Muslim community.
11. It is, thus, the case of ATS that Appellant and co-accused had
entered into criminal conspiracy between January 2008 to 23rd
October 2008 with the common object to strike terror in the minds
of people by exploding bomb at Malegaon and other places and
overawe the Government. Appellant had brought RDX with him
from Kashmir and the said explosives were assembled at the house
of Accused No.11-Sudhakar Chaturvedi. During the search by ATS,
the traces of RDX were found in the house of Accused No.11-
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Sudhakar Chaturvedi at Devlali Camp, Nashik. As per FSL's report,
the explosive ingredients detected in bomb-blast are similar to the
samples found from the house of Accused No.11-Sudhakar
Chaturvedi.
12. According to the ATS, the absconding accused Ramji alias
Ramchandra Kalsangra and Sandip Dange and Accused No.12-
Praveen Takkalki, in pursuance of the said conspiracy, had planted
the explosive device at the site by using 'LML Freedom Motor-Cycle'
owned by Accused No.1-Pragya Singh Thakur. The case of the ATS is
further to the effect that the absconding accused Ramji alias
Ramchandra Kalsangra and Sandip Dange were the men of the
Accused No.1-Pragya Singh Thakur and they had acted at her
instance. Accused No.1-Pragya Singh provided her own motor-cycle
for the said explosion and, thus, as per the case of ATS, Accused
No.1-Pragya Singh was one of the principal conspirators and had
also taken active part in the bomb-blast at Malegaon by providing
planters as well as her motor-cycle for planting the explosive device.
13. As against the Appellant also, according to ATS, he was the
main conspirator or the kingpin in this entire offence. He has formed
'Abhinav Bharat Organization', with the sole object of raising
8 APEAL-664-16-Prasad Purohit.doc
'Guerrilla War' against the 'Jihadi' activities of Muslims. He has
taken active part in hatching the conspiracy and also taken active
part by supplying necessary RDX for the bomb-blast at Malegaon.
14. The Charge-Sheet to this effect was filed by ATS on 20 th
January 2009 in the Special Court, after obtaining sanction on 17 th
January 2009. Thereafter, Government of India, vide its order dated
1st April 2011, transferred the investigation of the case to the
National Investigation Agency, (for short, "NIA"). Accordingly, on
13th April 2011, NIA re-registered the offence in respect of the said
incident as C.R. No.5/2011.
15. Meanwhile, on 21st December 2008, Appellant had filed Bail
Application No.42 of 2008 in the Special Court on 3 rd December
2008. While deciding the said Bail Application, the Special Court,
vide its order dated 31st July 2009, discharged the Appellant and all
the co-accused from the offences under MCOC Act and directed to
transfer the case to the regular court at Nashik, as per Section 11 of
the MCOC Act. Being aggrieved by the said order, the State
preferred Appeal bearing No.866 of 2009 before this Court under
Section 12 of the MCOC Act. The said Appeal was allowed by the
Division Bench of this Court by order dated 19th July 2010 and,
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accordingly, the impugned order of the Special Court dated 31 st July
2009 was set aside and the case was restored to the file of the
Special Court under MCOC Act for decision on merit. As a result, Bail
Application No.42 of 2008 filed by the Appellant-Prasad Purohit was
remanded for hearing to the Special Court. The said Bail Application
was then heard and came to be dismissed by the Special Court and
Criminal Appeal No.333 of 2011 preferred by the Appellant against
the said order in this Court also came to be rejected on 9th November
2011.
16. Meanwhile, the order passed by this Court in Appeal No.866 of
2009, restoring the application of the provisions of MCOC Act, came
to be challenged by the present Appellant and other co-accused,
including Accused No.1-Pragya Singh Thakur in Appeal before the
Hon'ble Apex Court. In these Appeals, the Appellant and Accused
No.1-Pragya Singh Thakur also challenged the order passed by this
Court of rejecting their Bail Applications. The Hon'ble Apex Court, by
its common order dated 15th April 2015 passed in Criminal Appeal
No.1969-1970 of 2010, decided all the Appeals filed by the
Appellant and other co-accused, raising doubt about applicability of
the provisions of MCOC Act to these accused, except Accused No.7.
The Hon'ble Apex Court, accordingly, while disposing of these
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Appeals, restored the Bail Application of the Appellant, bearing
Miscellaneous Application No.42 of 2008 to the file of the Special
Court for a fresh decision on its own merit, excluding the
applicability of the provisions of MCOC Act.
17. After this decision of the Hon'ble Apex Court dated 15 th April
2015, the Appellant filed fresh application for bail vide Exhibit-2295
with Bail Application No.42 of 2008 before the Special Court. Both
these Bail Applications were rejected by the Special Court vide its
order dated 12th October 2015. Against the said order, Appellant
preferred Appeal bearing Criminal Appeal No.138 of 2016 before
this Court. During pendency of the said Appeal, NIA submitted
Supplementary Report under Section 173(8) of the Code on 13 th
May 2016, dropping the charges of MCOC against all the accused
persons and further exonerating Accused No.1-Pragya Singh
Thakur and some other accused persons of all the charges levelled
against them.
18. In view of the filing of this Supplementary Report under
Section 173(8) of the Code by NIA, vide its order dated 9 th June
2016, this Court granted liberty to the Appellant to file fresh Bail
Application before the Special Court and, accordingly, disposed of
11 APEAL-664-16-Prasad Purohit.doc
his Criminal Appeal No.138 of 2016. Pursuant to the said order, the
Appellant filed the present application for bail (Exhibit-3139) before
the Special Court by contending, inter alia, that report filed by NIA
constitutes an important change in circumstance.
19. This application of the Appellant was strongly resisted by NIA
and also by the Intervenor, namely, the father of the deceased, who
has died in the bomb-blast at Malegaon. The Special Court, after
hearing learned counsel for the parties and after satisfying itself
from the material on record, was pleased to reject the said
application of the Appellant vide its impugned order and, hence, the
instant Appeal.
20. While challenging the impugned order passed by the Special
Court, the submission of learned counsel for the Appellant Shri.
Shivade is that, in view of the Supplementary Report filed by NIA,
dropping the charges in respect of the offences under MCOC Act, it
has to be held that there is no prima facie case against the
Appellant. It is submitted by him that in the earlier orders, the
Appellant's applications for bail were rejected mainly on the basis of
the confessional statements of co-accused Nos.7, 10 and 12. Those
confessional statements were recorded under the provisions of
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MCOC Act. Now, as the charges under MCOC Act are dropped, those
confessional statements of co-accused are required to be excluded
from consideration and in absence thereof, there is no incriminating
material against the Appellant so as to deny him the benefit of bail.
21. Secondly, it is submitted that in the earlier orders of rejecting
his Bail Applications, reliance was also placed on the statements of
PW-55, PW-79 and PW-112, as recorded by ATS. However, in the
investigation conducted by NIA, PW-79 and PW-112 have changed
their previous versions by retracting, before the NIA and
Metropolitan Magistrate at Delhi, their statements recorded by ATS
and before Metropolitan Magistrate, Mumbai. PW-55 has also made
complaint regarding harassment and torture by the officers of ATS
to the Human Rights Commission and, thus, he has also, in effect,
retracted his previous statement made before the ATS officer. Thus,
according to the Appellant, this fact that these three co-accused and
three material witnesses have retracted their statements recorded
by the ATS officers, clearly indicate that the investigation carried
out by ATS was not fair, but it was tainted. They have extracted the
statements and confessions by subjecting the witnesses and co-
accused to the torture and duress, under the threats of implicating
13 APEAL-664-16-Prasad Purohit.doc
them falsely. Now, in view of the withdrawal of those statements and
confessions, there remains nothing on record to implicate the
Appellant with the alleged offences.
22. Appellant has further contended that he was illegally detained
by ATS officers and the officer of the Army by name Col. Srivastav,
though, both, the ATS officers and the Army officer were fully aware
that Appellant had participated in the meetings held at various
places like Faridabad, Bhopal, etc., in discharge of his duties as a
'Military Intelligence Officer' for collecting intelligence and creating
new sources. The said fact has also been revealed in the Report of
Court of Inquiry conducted by the Army Officers against him as well
as in the reply filed by the Ministry of Defence and the documents
filed by the said Ministry in the Special Court. According to the
Appellant, isolated sentences uttered by him, during the course of
conversations in the said meetings or thereafter, cannot be used
against him, in view of the fact that he was discharging his duties as
'Military Intelligence Officer' to create intelligence sources. It is his
further contention that there was no sufficient material to show that
in the said meetings, any conspiracy was hatched to commit the
bomb-blast at Malegaon.
14 APEAL-664-16-Prasad Purohit.doc
23. In this respect, learned counsel for the Appellant has also
drawn attention of this Court to the statement of PW-21, who has
stated that, immediately after the alleged conspiracy meeting, he
found the Appellant disclosing details of the meeting to his superiors
in Military Intelligence. On inquiry by him, Appellant also told him
that it was a 'covert operation' of Military Intelligence. According to
learned counsel for Appellant, secrecy being the soul of conspiracy,
no conspirator will ever divulge the details of the conspiracy to the
superior officers in Military Intelligence. The statements of PW-94
and PW-150 are also pointed out in that direction. It is urged that
the documents of the Court of Inquiry conducted by the Ministry of
Defence and which are brought on record, as per the order of the
Special Court itself, were clearly ignored by the learned Special
Court on the count that they will be considered at the time of trial.
24. It is submitted by learned counsel for Appellant that, the
Report of Inquiry also reveals that the RDX was planted by ATS
officer in the house of Accused No.11-Sudhakar Chaturvedi. There
are statements to that effect of PW-180 and PW-183, recorded by
NIA and, accordingly, NIA has also, after thorough investigation,
15 APEAL-664-16-Prasad Purohit.doc
disbelieved the story of ATS, that of RDX traces found in the house
of Accused No.11-Sudhakar Chaturvedi. According to learned
counsel for the Appellant, the Trial Court has, however, ignored
these statements of witnesses and also the investigation conducted
by the NIA.
25. Learned counsel for the Appellant has then also challenged the
applicability of Section 43-D(5) of UAP Act contending, inter alia,
that it has no retrospective effect, as it affects the substantive right
of Accused to get bail. Hence, according to him, restriction on the
power of the Court in allowing the bail, as laid down under Section
43-D(5) of the UAP Act, cannot be made applicable to the present
case.
26. The learned counsel for the Appellant has further challenged
the sanction granted for prosecution of Appellant under Section
45(1) of UAP Act. It is contended that the Trial Court has erred in
holding that the question of validity of sanction and possibility of
failure of prosecution under UAP Act on the ground of invalid
sanction cannot be considered at the stage of deciding the
application for bail.
16 APEAL-664-16-Prasad Purohit.doc
27. Lastly, learned counsel for the Appellant has submitted that
the Appellant is in Jail since last about eight years and the delay is
sheerly on account of the prolonged time taken by the Investigating
Agencies, for which the Appellant is not responsible at all. As on
today also, the charges are not framed in this case. It is submitted
that there are five hundred witnesses cited by the prosecution and
thousands of documents have been filed on record. There are, in all,
twelve accused having separate Advocates. Even the arguments on
Discharge Application are likely to take few months and, thus, it is
impossible to commence the trial for several months. Naturally, it
will take few more years to complete the trial. Appellant has already
undergone minimum sentence provided for the offences alleged
against him. Appellant has no criminal antecedents whatsoever. His
service record is clean and he is considered as an asset to the Army.
It is, therefore, submitted by learned counsel for Appellant that, it is
high time that Appellant should be released on bail; especially when
there is no possibility of his absconding. His old mother, wife and two
minor sons have been deprived of his company. The offences alleged
against him are not punishable with death and there is also no prima
facie case in support of the charges. The charge of criminal
conspiracy is well-nigh impossible to be proved by the prosecution
17 APEAL-664-16-Prasad Purohit.doc
and, thus, it is submitted that this is a fit case where the Appellant
deserves to be released on bail.
28. According to learned counsel for Appellant, as learned Special
Court has not considered all these facets of the case and failed to
appreciate the submissions advanced by the learned counsel for the
Appellant, the impugned order rejecting the Bail Application of the
Appellant needs to be set aside by allowing this Appeal.
29. Per contra, learned Special P.P. for NIA, Mr. Sandesh Patil, has
strongly controverted these submissions of learned counsel for the
Appellant by contending, inter alia, that all these contentions of the
learned counsel for the Appellant are properly considered by the
Special Court and by giving elaborate, detailed and cogent
reasoning, the Special Court has rejected the Bail Application of the
Appellant. It is further submitted that, in the earlier Bail
Applications also, it was held that, prima facie, there is sufficient
material to implicate the Appellant, he being the main conspirator.
According to learned Special P.P. for NIA, there is no substantial
change in the said circumstances. It is submitted that, merely
because the MCOC charges are dropped, it does not mean that there
is no material against the Appellant in respect of other charges also.
18 APEAL-664-16-Prasad Purohit.doc
According to learned Special P.P., though NIA has given 'clean-chit'
to Accused No.1-Pragya Singh Thakur and some other co-accused, it
has not exonerated the Appellant from the charges levelled against
him. It clearly reflects that NIA has also found sufficient material to
implicate the Appellant. It is submitted that all the contentions
raised by the Appellant as to the non-applicability of Section 43-D(5)
of UAP Act or want of valid sanction for the prosecution can be
definitely considered at the time of trial and not at this stage.
Presently, the conclusions about involvement of the Appellant in the
offences alleged against him, as drawn by ATS officers, are
supplemented and supported by NIA officers also in its detailed
investigation. Thus, it is urged that, having regard to the gravity and
seriousness of the offences, which were in the nature of waging a
war against the unity and integrity of Nation, and, that too, by
violent means, Bail Application of the Appellant could not have been
allowed and it is rightly rejected by the Special Court.
30. On behalf of the Intervenor, i.e. the father of the deceased, who
has died in the bomb-blast, also a detailed note of arguments is filed
on record pointing out the incriminating role of the Appellant and
supporting the impugned order passed by the Special Court.
19 APEAL-664-16-Prasad Purohit.doc
31. We have heard at length and in extenso the oral submissions
advanced by learned counsel for the Appellant Shri. Shrikant
Shivade, learned Special P.P. for NIA, Shri. Sandesh Patil and
learned Senior Counsel for the Intervenor, Shri. B.A. Desai. We have
also perused the written submissions filed on their behalf and on the
basis thereof, we are proceeding to decide this Appeal as follows:-
Applicability of Section 43D(5) of UAP Act
32. The first and foremost contention raised by learned counsel for
the Appellant, in this case, is relating to 'applicability of Section 43-
D(5) of the UAP Act'. It is submitted that, though the UAP Act was
promulgated on 30th December 1967 and it was amended on 21 st
September 2004, the stringent provisions pertaining to the bail,
namely, sub-section (5) of Section 43-D of UAP Act, were introduced
only with effect from 31st December 2008 by the Amendment Act
No.35 of 2008. It is urged that, prior to the said amendment,
matters relating to arrest, detention and bail were governed by the
provisions of the Code of Criminal Procedure, 1973, (for short, "the
Code").
33. In this case, it is submitted that the incident took place on 29 th
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September 2008 and the Appellant was taken into illegal custody on
29th October 2008 and officially shown to have been arrested on 5 th
November 2008. The first Bail Application, bearing Miscellaneous
Application No.42 of 2008, was filed prior to 31 st December 2008.
Though the said application came to be rejected by the Trial Court,
the Hon'ble Apex Court has restored the same. It may be true that
thereafter again it was rejected, but in the Appeal preferred against
the said order, the Appellant was permitted to file fresh Bail
Application. Thus, according to learned counsel for the Appellant,
the first Bail Application of Appellant, which was filed before 31 st
December 2008, is yet not finally decided and in view thereof, the
effect of this amended stringent provision of Section 43-D(5) of UAP
Act cannot be made applicable to Appellant's Bail Application.
34. Learned counsel for the Appellant has, in this respect, relied
upon the various provisions of the Constitution to submit that no
person can be convicted for an offence, except for violation of law in
force at the time of commission of the act, charged as an offence, nor
he can be subjected to a penalty, greater than that, which might
have been inflicted under the law in force at the time of commission
of the offence. According to learned counsel for Appellant, as these
amended provisions of Section 43-D(5) of the UAP Act put further
21 APEAL-664-16-Prasad Purohit.doc
restrictions on the right of the accused to be released on bail, they
are as good as creating higher punishment or penalty other than
that, which was imposed at the time of commission of the offence
and, hence, those provisions cannot be made applicable to the case
of the Appellant. He has further submitted that 'right to bail' being a
substantive right of the Accused, as the amended provisions affects
this right, those provisions cannot have any retrospective operation.
35. In this respect, the reliance is placed on the authority of
Keshavan Vs. State of Bombay, AIR 1951 SC 128 , wherein the
Hon'ble Apex Court has held that, Article 13(1) of the Constitution
cannot have retrospective effect, as every Statute is prima facie
prospective, unless it is expressly or by necessary implications
made to have retrospective operation.
36. Learned counsel for the Appellant has also relied upon the
decision of the Hon'ble Apex Court in Bishun Narain Misra Vs. The
State of U.P., AIR 1965 SC 1567 , wherein the notification of
reducing the age of retirement or superannuation was held to be
having no retrospective effect.
22 APEAL-664-16-Prasad Purohit.doc
37. He has also placed reliance on the decision of the Hon'ble Apex
Court in M/s. West Ramnad Electric Distribution Company Ltd. Vs.
The State of Madras, AIR 1962 SC 1753 , to submit that void
legislation cannot be validated by the Government by subsequent
legislation.
38. Further, he has placed reliance on the decision of the Hon'ble
Supreme Court in the case of Sukhdev Singh Vs. State of Haryana,
(2013) 2 SCC 212, which pertain to the amendment in sub-section
(2) of Section 42 of the Narcotic Drugs and Psychotropic Substances
Act, 1985, wherein it was held that, "it is a settled principle of
interpretation of Criminal Jurisprudence that the provisions have
to be strictly construed and cannot be given a retrospective effect,
unless legislative intent and expression is clear beyond ambiguity".
39. Thus, sum and substance of the submission of learned counsel
for the Appellant is that, as the amended provisions of Section 43-
D(5) of the UAP Act have the effect of curtailing Appellant's right to
bail, they cannot have the retrospective effect and the Appellant's
application has to be decided as per the provisions of the Code, as
was the law prior to the amendment in UAP Act.
23 APEAL-664-16-Prasad Purohit.doc
40. Per contra, according to learned Special P.P., as, on the date of
amendment in Section 43-D(5) of UAP Act, the Bail Application of
the Appellant was not decided, amended provisions can be made
applicable for the decision of his Bail Application. Further, it is
submitted that the amended provision is purely procedural in
nature relating to the bail and custody of the accused. It does not
affect any substantive right of the Appellant. It is urged that the
Appellant is arrested and charged for the commission of non-
bailable offences like Sections 302 and 307 of IPC and Accused in a
non-bailable offence does not have any vested right to be released on
bail. Therefore, Appellant cannot raise any grievance of his
substantive right being affected or curtailed on account of
amendment in Section 43-D(5) of the UAP Act.
41. By placing reliance on the landmark decision of the Hon'ble
Apex Court in the case of Hitendra Vishnu Thakur Vs. State of
Maharashtra, AIR 1994 SC 2623, it is urged by Special P.P. for NIA
that the amendments in the provisions relating to custody and bail
are of procedural nature and can have retrospective effect.
42. Learned counsel for the Intervenor has also placed reliance on
24 APEAL-664-16-Prasad Purohit.doc
the decision of the Hon'ble Apex Court in the case of Gurubachan
Singh Vs. Satpal Singh, AIR 1996 SC 290, wherein the retrospective
effect was given to the amended Section 113A of the Indian
Evidence Act, laying down presumption in case of abatement of
suicide by a married woman within seven years from the date of her
marriage. It is urged that, in the said decision, it was held by the
Hon'ble Apex Court that, the amended provision under Section 113A
does not create any new offence and, hence, it can be made
applicable even to the death of a married woman occurred prior to
the Amendment Act came into place. Thus, according to learned
Special P.P. and learned counsel for Intervenor, there is no
substance in the contention raised by learned counsel for Appellant
on this score.
43. In our considered opinion, in order to appreciate these rival
submissions, it would be fruitful to refer to the decision of the
Hon'ble Apex Court in the case of Hitendra Vishnu Thakur (Supra),
which has laid down the settled principles regarding "prospective"
or "retrospective" operation of the legislation or the amendments in
the legislation, as these principles of law can be fairly well applicable
to the present case also.
25 APEAL-664-16-Prasad Purohit.doc
44. The question involved in the said case was, 'as to whether the
Amendment Act No.43 of 1993 is retrospective in operation?' . By
the said Amendment, clause (b) of sub-section (4) of Section 20 of
TADA Act was amended, thereby reducing the maximum period
during which an accused under TADA can be kept in custody
pending investigation from one year to 180 days. The Amendment
Act also introduced clause (bb) to sub-section (4) of Section 20 of
TADA Act, thereby enabling the prosecution to seek extension of
time for completion of investigation. When application of these
provisions was challenged before the Hon'ble Apex Court on the
count that they do not have the effect on pending proceedings, the
Hon'ble Apex Court has laid down following test for deciding the
"retrospective" and "prospective" operation of such amending Acts.
"(i) A Statute which affects substantive rights is
presumed to be prospective in operation, unless
made retrospective, either expressly or by
necessary intendment, whereas a Statute which
merely affects procedure, unless such a
construction is textually impossible is presumed to
be retrospective in its application, should not be
given an extended meaning, and should be strictly
confined to its clearly defined limits.
26 APEAL-664-16-Prasad Purohit.doc
(ii) Law relating to forum and limitation is procedural
in nature, whereas law relating to right of action
and right of appeal, even though remedial, is
substantive in nature.
(iii) Every litigant has a vested right in substantive law,
but no such right exists in procedural law.
(iv) A procedural Statute should not generally speaking
be applied retrospectively, where the result would
be to create new disabilities or obligations, or to
impose new duties in respect of transactions
already accomplished.
(v) A Statute which not only changes the procedure
but also creates new rights and liabilities, shall be
construed to be prospective in operation, unless
otherwise provided, either expressly or by
necessary implication."
45. In the light of these principles, the Hon'ble Apex Court was
pleased to hold that the Amendment Act No.43 of 1993, regulating
the period of compulsory detention and the procedure for grant of
bail being procedural in nature, would operate retrospectively. It
was further held that the said Amendment Act is applicable to the
pending proceedings also. [Emphasis Supplied]
27 APEAL-664-16-Prasad Purohit.doc
46. Similarly, in the case of Gurubachan Singh (Supra) also, the
Hon'ble Apex Court was pleased to hold that Section 113A of the
Indian Evidence Act, which was inserted in Statute by Amendment
Act No.46 of 1983, does not create any new offence and, as such, it
does not affect any substantive right, but it is merely a matter of
procedure of evidence and as such, it was retrospective and was
applicable to the death of a woman that had taken place prior to the
Amendment Act came into force.
47. In the light of these decisions, one has to consider the
provisions of Section 43-D(5) of the UAP Act. They read as follows :-
"43-D. Modified application of certain provisions
of the Code -
(1) .............................................................................
(2) .............................................................................
(3) .............................................................................
(4) .............................................................................
(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 of such
release;
28 APEAL-664-16-Prasad Purohit.doc
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.
(6) The restrictions on granting of bail specified
in sub-section (5) is in addition to the
restrictions under the Code or any other
law for the time being in force on granting
of bail.
(7) Notwithstanding anything contained in sub-
sections (5) and (6), no bail shall be
granted to a person accused of an offence
punishable under this Act, if he is not an
Indian citizen and has entered the country
unauthorizedly or illegally except in very
exceptional circumstances and for reasons
to be recorded in writing."
48. Perusal of these provisions, thus, makes it clear that, prior to
the amendment of Section 43-D(5), which came into effect from 31 st
December 2008, the Bail Applications of the accused persons
charged for the offences under UAP Act were required to be
considered within the scope of the provisions of the Code; whereas,
29 APEAL-664-16-Prasad Purohit.doc
now, after the amendment, such Bail Applications are to be
considered as per these provisions of sub-clause (5) of Section 43-D.
By way of this Amendment, two additional conditions are laid down,
like, opportunity of being heard on the application of bail being
extended to the P.P. before passing any order on the Bail Application
of the Accused and second condition to the effect that the accused
shall not be released on bail, if, on perusal of the Case Diary or the
Report made under Section 173 of the Code, the Court is of the
opinion that there are reasonable grounds for believing that the
accusation against such person is prima facie true.
49. No doubt, these two conditions are in addition to the conditions
laid down under the Code on granting of bail; however, these
conditions, in our considered opinion, do not, in any way, affect or
restrict the right, if any, of the Appellant to be released on bail. Even
while deciding the Bail Application of the Accused, as per the
provisions of the Code, Public Prosecutor is heard and, secondly,
under the provisions of the Code also, the Court always ensures as to
whether the accusation against the accused person is prima facie
true. If it is so, then his right to get the bail becomes restricted.
Therefore, effectually, there are no such further restrictions laid
down by the Amendment Act on the Appellant's right, if any, of the
30 APEAL-664-16-Prasad Purohit.doc
bail. Hence, this Amendment cannot be considered as substantively
affecting the right of Appellant.
50. Moreover, in this case, admittedly, the offences alleged against
the Appellant are non-bailable and punishable with imprisonment
for life or death, as he is also charged for the offences under Section
302, 120B etc. of IPC. Therefore, under the provisions of the Code
also, it cannot be said that the Appellant has any substantive right
to be released on bail, similar to the right the accused is having in
the case of bailable offences. Therefore, the Trial Court has rightly
concluded that Appellant cannot claim to have any "vested right" to
be released on bail under the provisions of the Code.
51. It is pertinent to note that in the above-said decision of
Hitendra Thakur (Supra) also, the Hon'ble Apex Court has clearly
held that, "the procedure for grant of bail is procedural in nature
and can have retrospective operation". Therefore, we have to hold
that, whatever alleged restrictions are put on the rights of the
accused to get bail under the provisions of Section 43-D(5) of the
UAP Act, they are required to be held as procedural in nature and,
therefore, can be said to be having retrospective effect. It is
pertinent to note in this context that, even in respect of Section
31 APEAL-664-16-Prasad Purohit.doc
113A of the Indian Evidence Act, which has created presumption
against the innocence of the accused, the Hon'ble Apex Court has
held in the case of Gurubachan Singh (Supra) that the said provision
has retrospective effect and can be applied to the death of a woman
that has taken place before the amendment. The Hon'ble Apex Court
has refused to accept the argument advanced in the said case that
accused had vested right to get decided his case as per the
provisions prevailing on the date of offence.
52. In the instant case, therefore, it has to be held that, as the Bail
Application of the Appellant is being decided after the Amendment
Act came into effect and as the provisions relating to bail are
considered to be procedural in nature and, otherwise also, these
provisions are not, in any way, affecting the right of the Appellant to
seek bail, it has to be held that sub-section (5) of Section 43-D of
UAP Act is applicable to this case and the present application is
required to be decided within the scope of the said provisions.
53. According to learned counsel for the Appellant, even assuming
that Section 43-D(5) of UAP Act is applicable, for considering the
Bail Application of the Appellant, this Court should decide the
32 APEAL-664-16-Prasad Purohit.doc
application as per the parameters laid down by the Hon'ble Apex
Court in the case of Ranjitsing Brahmajeetsing Sharma Vs. State of
Maharashtra, 2005 (5) SCC 294. It is submitted that, while
considering similar restrictions placed on the bail, as laid down
under MCOC Act, the Hon'ble Apex Court was pleased to observe in
this authority that,
"The restrictions on the power of the Court to grant
bail should not be pushed too far. If the Court, having
regard to the materials brought on record, is satisfied
that, in all probability, Accused may not be ultimately
convicted, an order granting bail may be passed".
54. It is urged that, in this authority, the Hon'ble Apex Court has
also opined that, "Section 21(4) of the MCOC Act does not lead to the
conclusion that the Court must arrive at a positive finding that the
Applicant for bail has not committed an offence under the Act. If
such a construction is placed, the Court intending to grant bail
would require to arrive at a finding that the Applicant has not
committed such an offence. In such an event, it will be impossible for
the prosecution to obtain a judgment of conviction of the Applicant.
Such cannot be the intention of the Legislature. It must be so
construed that the Court is able to maintain a delicate balance
33 APEAL-664-16-Prasad Purohit.doc
between the Judgment of acquittal and conviction and an order
granting bail, much before commencement of the trial".
55. According to learned counsel for the Appellant, these
observations of the Hon'ble Apex Court in the case of Ranjitsing
Brahmajeetsing Sharma needs to be applied while deciding the
present application for bail also and the case of the Appellant for bail
needs to be considered on the touch-stone of the law laid down in
this authority.
56. In our considered opinion, there cannot be any two opinions
about the law laid down by the Hon'ble Apex Court. Even otherwise
also, whether the provisions of Section 43-D(5) of UAP Act are
applied to the Bail Application of the present Appellant or not, the
fact remains that this Court has to consider his Bail Application
according to the provisions of the Code and the provisions of the
Code also mandate that the offences alleged against the Appellant
being non-bailable, the Court has to consider his Bail Application on
certain parameters, which are laid down in the various authorities
of the Hon'ble Apex Court, like, the prima facie case appearing
against the Appellant; the nature of the offence; the gravity of the
34 APEAL-664-16-Prasad Purohit.doc
punishment; the possibility of Applicant tampering of the witnesses,
if released on bail, etc. The Hon'ble Apex Court has also in its order
dated 15th April 2015 directed the Bail Application of the Appellant
and other co-accused to be decided on these parameters.
Applicability of MCOCA Provisions
57. At this stage, it may also be necessary to consider the
applicability of the provisions of the MCOC Act to the present case.
According to learned counsel for the Intervenor, though NIA has
dropped the charges under the provisions of MCOC Act, Accused in
the case, including the Appellant, cannot be discharged from the
said offences, as already this Court has taken cognizance of the case
under the provisions of MCOC Act. According to learned counsel for
the Intervenor, even in the judgment of the Hon'ble Apex Court
dated 15th April 2015 passed in Criminal Appeal No.1169-1970 of
2010, the Hon'ble Apex Court has, though raised doubt about the
applicability of the provisions of the MCOC Act, to the present
Appellant and other co-accused are concerned, except Accused No.7-
Rakesh Dhawde, these accused are not discharged from the offences
registered under MCOC Act. In such circumstances, according to
him, no clean-chit can be given to the Appellant or other co-accused
from the offences registered under the MCOC Act.
35 APEAL-664-16-Prasad Purohit.doc
58. It is further submitted by learned counsel for the Intervenor
that, at this stage, when the investigation conducted by the ATS,
implicating the accused with the offences under MCOC Act and the
investigation conducted by NIA stand side by side, they have to be
read conjointly. It is, therefore, submission of learned counsel for
the Intervenor that the confessional statements of Accused Nos.7,
10 and 12 are required to be considered, along with other material
on record, while deciding prima facie case of the prosecution against
the Appellant for the purpose of deciding his Bail Application. In
support of this submission, learned counsel for the Intervenor, has
relied upon the judgment of the Hon'ble Apex Court in the case of
State of Tamil Nadu Vs. Nalini & Ors., (1999) 5 SCC 253.
59. This submission of learned counsel for the Intervenor is
strongly controverted by learned counsel for the Appellant on the
count that, the Hon'ble Apex Court has already expressed doubts
about the applicability of MCOC Act to these Accused and now the
clean-chit is given by NIA by dropping those charges under the
MCOC Act against all the Accused. Hence, according to him, there is
no question of this Court taking into consideration the confessional
36 APEAL-664-16-Prasad Purohit.doc
statements of Accused Nos.7, 10 and 12, which could have been
admissible only if the provisions of MCOC Act were applicable.
60. In our considered opinion, in order to appreciate these rival
submissions, this Court has to consider the observations made by
the Hon'ble Apex Court in the above referred Judgment dated 15 th
April 2015 passed in Criminal Appeal No.1969-1970 of 2010,
against the order passed by this Court. In these Appeals, Appellant
and other Accused, including Accused No.1-Pragya Singh Thakur,
had challenged the very applicability of the provisions of MCOC Act
to the present case and while deciding the said issue raised for its
consideration, the Hon'ble Apex Court was pleased to observe in
paragraph No.95 of its Judgment as follows :-
95. In the light of our above conclusions on the various
submissions, we are convinced that in respect of the
appellant in Criminal Appeal No.1971 of 2010,
namely, A-7, there is no scope even for the limited
purpose of Section 21(4)(b) to hold that application of
MCOC Act is doubtful. We have held that the said
appellant A-7 had every nexus with all the three
crimes, namely, Parbhani, Jalna and Malegaon and,
therefore, the bar for grant of bail under Section 21
would clearly operate against him and there is no
scope for granting any bail. Insofar as the rest of the
37 APEAL-664-16-Prasad Purohit.doc
appellants are concerned, for the purpose of invoking
Section 21(4)(b), namely, to consider their claim for
bail, it can be held that for the present juncture with
the available materials on record, it is not possible to
show any nexus of the appellants who have been
proceeded against for their involvement in Malegaon
blast with the two earlier cases, namely, Parbhani and
Jalna. There is considerable doubt about their
involvement in Parbhani and Jalna and, therefore,
they are entitled for their bail applications to be
considered on merits." [Emphasis Supplied]
61. It may be true that Hon'ble Apex Court has not dropped the
charges under MCOC Act, but it appears to be so, as investigation by
NIA at that time was in progress. Hence, the Hon'ble Apex Court has
not dropped the charges of MCOC against the Appellant and other
co-accused. However, the Hon'ble Apex Court has clearly raised a
considerable doubt about the applicability of those charges and has
directed that so far as the Bail Applications of the present Appellant
and other co-accused, except Accused No.7-Rakesh Dhawde, are
concerned, they should be decided on their own merit. This
observation of the Hon'ble Apex Court could be further found in
paragraph No.98 of its judgment, wherein the Hon'ble Apex Court
set aside the orders of rejection of the bail of the Appellant by
holding that there is enough scope to doubt as to the application of
38 APEAL-664-16-Prasad Purohit.doc
MCOC Act under Section 21(4)(b) for the purpose of grant of bail
and, accordingly, the Hon'ble Apex Court directed the Special Judge
to consider their application for bail on merits, keeping in mind the
law laid down in the reported authorities, which were referred in
paragraph Nos.96 and 97 of the Judgment, and directed to pass the
orders accordingly. Thus, the Hon'ble Apex Court has made the
things very clear by directing that the Bail Application of the
present Appellant is to be decided on merits, without considering the
provisions of MCOC Act.
62. Once it is held that the provisions of the MCOC Act are not to
be considered for deciding the Bail Application, then the next
question arising for consideration is, 'whether the confessional
statements of Accused Nos.7, 10 and 12 can be taken into
consideration for deciding these Bail Applications'?
63. As stated above, according to learned counsel for the
Intervenor, these confessional statements can be taken into
consideration even if the provisions of MCOC Act are held to be not
applicable, as that observation of the Hon'ble Apex Court pertains
only in respect of applicability of Section 21(b) of MCOC Act, which
pertains to stringent provisions of bail. According to learned counsel
39 APEAL-664-16-Prasad Purohit.doc
for the Intervenor, the order of the Hon'ble Apex Court nowhere
reflects that, while deciding the Bail Application of the Appellant,
confessional statements of co-accused should be excluded from
consideration. According to learned counsel for Intervenor, further
observations made by Hon'ble Apex Court in paragraph No.96 make
it clear that the Bail Applications of Appellant and other co-accused
were to be decided not on the touch-stone of Section 21(b) of MCOC
Act, but on its own merits, as the Hon'ble Apex Court has then
referred to the parameters for granting bail, as laid down in the
landmark decisions of State of U.P., through CBI, Vs. Amarmani
Tripathi, 2005 (8) SCC 21, and Kalyan Chandra Sarkar Vs. Rajesh
Ranjan @ Pappu Yadav & Anr., AIR 2005 SC 921.
64. In support of his submission, as the learned counsel for
Intervenor has placed reliance on the observations of the Hon'ble
Apex Court in the case of State of Tamil Nadu Vs. Nalini and Ors.
(Supra), it is necessary to refer to those observations also. In this
case it was held that,
"Even if the accused persons, at the end of trial, are
acquitted for the offences under MCOC Act, still the
confessional statements of co-accused can be
considered and relied upon for the purpose of the
offences punishable under IPC."
40 APEAL-664-16-Prasad Purohit.doc
65. According to learned counsel for the Intervenor, therefore, if
confessional statements of co-accused can be relied upon even after
their acquittal for the charges under TADA and in this case MCOC
Act, then the confessional statements of co-accused in this case
cannot be kept away at the stage of deciding Bail Applications.
According to learned counsel for Intervenor, as the Hon'ble Apex
Court has not set aside the order of this Court holding that
provisions of MCOC Act are applicable, it has to be held that
confessional statements of co-accused need to be considered while
deciding this application for bail.
66. In our considered opinion, at this stage, this point should not
detain us for long, because the observations of the Hon'ble Supreme
Court in the case of State of Tamil Nadu vs. Nalini (Supra) make it
clear that the question of considering the confessional statements of
co-accused, recorded under MCOC Act for the purpose of the offences
punishable under IPC, arises only if the accused persons, at the end
of trial, are acquitted of the charges under MCOC Act. The material
words are 'at the end of the trial' . Hence, there has to be joint trial of
Accused and the co-accused, who have made confessional
statements under MCOC Act. Hence, at this stage, these
41 APEAL-664-16-Prasad Purohit.doc
observations of the Hon'ble Apex Court cannot be of any help to
learned counsel for the Intervenor.
67. Secondly and most importantly, the observations made by
Hon'ble Apex Court in the Appeal preferred by the Appellant are
very clear and categorical to the effect that the Bail Applications of
the Appellant and other co-accused are to be decided on their own
merits, excluding the applicability of the MCOC Act. Hence, at this
stage, we deem it proper not to enter into the controversy or
prejudge the issue, "as to whether the confessional statements of the
co-accused can be taken into consideration for deciding the charges
under IPC, even if Accused are acquitted under TADA or MCOC Act",
especially when the trial and applications for discharge filed by the
Accused are pending before the Special Court.
68. Admittedly, in this case, the confessional statements of co-
accused were recorded as the provisions of MCOC Act were invoked
and once those provisions are not to be considered for the purpose of
deciding this Bail Application, as per the order of Hon'ble Apex
Court, then, to be on safer side, it would be proper on our part to
exclude those confessional statements from our consideration while
deciding this Appeal, as was rightly done by the Special Court.
42 APEAL-664-16-Prasad Purohit.doc
Moreover, in our opinion, even if those confessional statements of
co-accused are excluded from consideration, still there is more than
sufficient material on record to infer prima facie case against the
present Appellant.
Validity of Sanction
69. Before adverting to the facts of this case, it is necessary to
consider one more leg of the argument advanced by learned counsel
for Appellant and it pertains to the 'sanction' for prosecution of the
Appellant. According to learned counsel for the Appellant, the
sanction accorded in this case is not legal and valid for two reasons;
the first reason being, the State Government had no power to accord
sanction under Section 45(2) of UAP Act and, secondly, the
Sanctioning Authority of the State Government did not follow the
mandatory provisions laid under Section 45(2) of the UAP Act.
70. Per contra, according to learned Special P.P. and learned
counsel for the Intervenor, the question of validity of sanction
cannot be gone into at this stage, as it needs to be decided at the time
of final hearing and, secondly, the sanction granted by the State
Government was valid one and it cannot be said that by way of
43 APEAL-664-16-Prasad Purohit.doc
amendment dated 31st December 2008, this authority of the State
Government was taken away. It is also submitted that mandatory
procedure, as laid under Section 45(2) of the UAP Act, was followed
and, moreover, it cannot be the point for argument at this stage.
71. In order to properly appreciate the submissions advanced at
bar by learned counsel for the parties, in our opinion, it would be
useful to reproduce Section 45 of the UAP Act, which reads as
follows :-
"45. Cognizance of Offences :-
(1) No Court shall take cognizance of any offence -
(i) under Chapter III without the previous
sanction of the Central Government or
any officer authorized by the Central
Government in this behalf;
(ii) under Chapters IV and VI without the
previous sanction of the Central
Government or, as the case may be, the
State Government, and where such
offence is committed against the
Government of a foreign country without
the previous sanction of the Central
Government.
44 APEAL-664-16-Prasad Purohit.doc
72. At this stage, it may be stated that sub-section (2) of Section
45 of UAP Act is inserted with effect from 31 st December 2008 and it
reads as follows :-
(2) Sanction for prosecution under sub-section (1)
shall be given within such time as may be
prescribed only after considering the report of
such authority appointed by the Central
Government, or, as the case may be, the State
Government which shall make an independent
review of the evidence gathered in the course of
investigation and make a recommendation
within such time, as may be prescribed to the
Central Government, or, as the case may be, the
State Government."
73. The relevant Rules made by the Central Government under the
title "Unlawful Activities (Prevention) (Recommendation and
Sanction of Prosecution) Rules, 2008", are as follows :-
"2. Definitions :-
(1) In these rules, unless the context otherwise
requires -
(a) ..........................................................................
(b) "Authority" means the Authority to be
appointed by the Central Government, (or,
as the case may be, the State Government,
under sub-section (2) of Section 45);
45 APEAL-664-16-Prasad Purohit.doc
(c) ..........................................................................
(2) ....................................................................................
3. Time limit for making a recommendation by
the Authority :-
The Authority shall, under sub-section (2) of Section
45 of the Act, make its report containing the
recommendations to the Central Government, (or, as
the case may be, the State Government), within seven
working days of the receipt of the evidence gathered
by the investigating officer under the Code.
4. Time limit for sanction of prosecution :-
The Central Government, (or, as the case may be, the
State Government), shall, under sub-section (2) of
Section 45 of the Act, take a decision regarding
sanction for prosecution within seven working days
after receipt of the recommendations of the
Authority."
74. It may be stated that bracketed portion in these Rules is
introduced by Government Notification dated 31st March 2009.
75. According to learned counsel for the Appellant, as, till 31 st
March 2009, in the Unlawful Activities (Prevention)
(Recommendation and Sanction) Rules, 2008, there was no
46 APEAL-664-16-Prasad Purohit.doc
reference to the 'State Government' in definition of authority as well
as in the Rules 3 and 4, which prescribe time limit for
recommendation of sanction for prosecution, the State Government
had no authority to grant sanction under sub-section (2) of Section
45 of the UAP Act for the prosecution of the Appellant. According to
him, prior to Amendment in the Rules with effect from 31 st March
2009, only the Central Government was competent to grant
sanction. Hence, sanction accorded in this case by the Additional
Chief Secretary (Home) of the Government of Maharashtra,
Mumbai, on 17th January 2009, under Section 45(2) of the UAP Act,
is without jurisdiction and invalid.
76. We are, however, not inclined to accept this submission as the
plain reading of Section 45(1)(ii) of UAP Act shows that, so far as
the offences under Chapters IV and VI of the UAP Act are concerned,
the cognizance can be taken only if there was previous sanction of
the Central Government, or, as the case may be, of the State
Government. It clearly shows that, "State Government" is also
authorized to accord sanction under this provision. It is clear that
from 31st December 2008, sub-section (2) of Section 45 of UAP Act
was inserted, thereby directing both, the Central and State
47 APEAL-664-16-Prasad Purohit.doc
Government, to create one independent Reviewing Authority and
casting obligation on the Sanctioning Authority of Central
Government, or, as the case may be, the State Government to
consider the report of this Authority before according the sanction.
Thus, it can be seen that both the Central Government as well as the
State Government are empowered to appoint the said Reviewing
Authority, thereby indicating that both the Central Government and
State Government are competent to accord the sanction. Otherwise,
there was no reason for directing the State Government also to
appoint such independent Authority.
77. In our considered opinion, therefore, the absence of the words,
the 'State Government', while defining the "authority" as well as
while prescribing the "time limit for making recommendation by the
authority" and "time limit for sanction of prosecution" in the Rules,
cannot take away the authority of the State Government, given to it
under the Section. In our considered opinion, such Rules, which are
framed in exercise of delegated legislation, cannot take away the
authority, which was vested in the State Government in view of
Section 45(ii) of UAP Act. Hence, it cannot be accepted that from
31st December 2008 to 31st March 2009, State Government had no
48 APEAL-664-16-Prasad Purohit.doc
authority to accord sanction under Section 45(ii) of the UAP Act.
Hence, the sanction accorded in this case by the Additional Chief
Secretary (Home), Government of Maharashtra, cannot be called as
without authority or jurisdiction.
78. As regards the next submission that the 'sanction' produced in
the case does not reflect that independent Reviewing Authority,
which was created to act as a filter to prevent the frivolous
prosecutions under the Act, was appointed and its report was
considered, as required under Section 45(2) of UAP Act, in our
considered opinion, as rightly submitted by the learned Special P.P
and as held by the Special Court, this question cannot be decided at
this stage, even prima facie, because, it is the Sanctioning Authority
alone, which can say whether such report of the Reviewing
Authority was considered by it at the time of granting sanction.
Such opportunity needs to be given not only to the prosecution but
also to the Sanctioning Authority. Merely because in the 'sanction'
there is no reference to the report of the Reviewing Authority,
inference of non-compliance of sub-section (2) of Section 45 of the
UAP Act cannot be drawn.
79. As to the reliance placed by learned counsel for Appellant on
49 APEAL-664-16-Prasad Purohit.doc
the decision of Single Judge of the Orissa High Court in Subhashree
Das @ Mili Panda & Ors. Vs. State of Orissa, 2011 SCC OnLine Ori 61,
to submit that this issue can be considered at the stage of deciding
Bail Application also, the facts thereof reveal that, in that case, the
High Court was exercising its inherent power under Section 482 of
the Code, as the application was for quashing of F.I.R.. Moreover, in
the said case, the Additional Government Advocate has fairly
conceded that no such formal appointment order appointing the
Special Secretary for the purpose of reviewing cases under Section
45 of the Act is available on record. To a further query of the Court
as to whether the State has prescribed any time limit for the
purpose of producing such report by the reviewing authority,
learned Addl. Government Advocate for the State also responded in
the negative.
80. As against it, in the present case, we don't get any such
unequivocal assertion from the Special P.P. to hold that no such
independent authority was appointed or that report of such
independent authority was not before the Sanctioning Authority,
when sanction order was passed.
50 APEAL-664-16-Prasad Purohit.doc
81. As regards the other authorities relied upon by learned
counsel for the Appellant, that of Anirudhsinhji Karansinhji Jadeja
Vs. State of Gujarat, (1995) 5 SCC 302, Hussain Ghadiyali Vs. State
of Gujarat, (2014) 8 SCC 425, and Ashraf Khan @ Babu Munnekhan
Pathan Vs. State of Gujarat, (2012) 11 SCC 606 , they reveal that, in
those cases, the approval for registration of the offences under
Section 20-A(1) of the TADA Act was not granted by the
Superintendent of Police but by some other officer. Hence, it was
held that such 'sanction' was invalid. Moreover, the sanction was
held to be invalid in these cases after full-fledged trial and not at the
time of deciding Bail Application of the Accused. Moreover, in those
cases, the sanction order suffered from lack of jurisdiction, which
was clear from the perusal of the 'Sanction Order' itself, as the
sanction was granted by the authority, which was not competent to
do so and, hence, it was considered to be invalid. As against it, in the
instant case, one has to ascertain, at the time of trial, from the
Sanctioning Authority as to whether there was compliance of
considering the report of independent authority.
82. Learned counsel for the Appellant has then placed reliance on
the Judgment of the Division Bench of this Court in Mohammad
Gausuddin s/o. Wali Mohammad Vs. State of Maharashtra, 2003
51 APEAL-664-16-Prasad Purohit.doc
ALL MR (Cri) 1107, to submit that, when a Statute provides certain
guidelines to be followed, they are required to be followed strictly. In
the instant case, it is submitted that such guidelines, as are required
to be followed by the Sanctioning Authority, that of obtaining an
independent review from the authority constituted under Section
45(2) of the Act, being not followed, the 'sanction' obtained in the
case is not valid.
83. Learned counsel for the Appellant has in this respect also
placed reliance on another decision of the Division Bench of this
Court in Chandrayya Narayan Sadanpu Vs. State of Maharashtra,
2004 Supp2 BomCR 698, wherein it was held that, cognizance taken
by the Court in the absence of the sanction from prosecution was in
breach of mandatory provisions of Section 50 of POTA. Hence,
Accused was entitled to be released on bail.
84. Needless to state that, both these authorities pertained to
absence of sanction for prosecution and, therefore, they cannot be
made applicable to the instant case, as in the present case, the
sanction is very much available on record.
85. According to learned counsel for the Appellant, the objection to
52 APEAL-664-16-Prasad Purohit.doc
'sanction' can be raised at any time and it needs to be considered by
the Court. To substantiate this submission, learned counsel for the
Appellant has relied upon the decision of the Hon'ble Apex Court in
the case of P.K. Pradhan Vs. State of Sikkim, (2001) 6 SCC 704 . In
this case, no doubt, the Hon'ble Apex Court has held that, the
question of sanction can be raised at any time after cognizance, may
be immediately after cognizance or framing of charge or even at the
time of conclusion of trial and after conviction as well. Hon'ble Apex
Court has, however, also observed that,
"There may be, however, certain cases where it may
not be possible to decide the question effectively and at
preliminary stage and in such eventuality, the
question of sanction can be left open to be decided at
the time of judgment, which may be delivered upon
conclusion of the trial."
86. According to learned Special P.P., as held by the Hon'ble Apex
Court in the case of C.B.I. Vs. Ashok Kumar Aggarwal, AIR 2014 SC
827, the stage of examining the validity of the sanction is during the
trial and it cannot be during the stage of inquiry or at pre-trial stage.
To support this submission, he has further placed reliance on the
Judgment of Division Bench of this Court in the case of Rasiklal
Manikchand Dhariwal and Jagdish M. Joshi Vs. Central Bureau of
53 APEAL-664-16-Prasad Purohit.doc
Investigation and The State of Maharashtra,
MANU/MH/1604/2010, wherein also the argument of learned
counsel for the Petitioner that, question regarding validity of
sanction could be gone into even at the pre-trial stage was rejected,
while observing that the scope of the challenge at pre-trial stage
would be very limited. If challenge is raised to the issue, which is
mixed question of fact and law, that could not be decided at pre-trial
stage, unless prosecution was given an opportunity to lead evidence.
It was held that the law relating thereto was sufficiently crystallized
on this aspect.
87. Learned counsel for the Intervenor has relied upon the
Judgment of the Division Bench of Calcutta High Court in Kangujam
Ravi Kumar Singh Vs. Union of India, 2014 Cri.L.J. 3103 , wherein
the challenge to prosecution of the Accused under the provisions of
UAP Act was raised on the similar ground that the report which
persuaded the independent authority to grant a sanction to
prosecute the accused was not produced. While deciding this
challenge, it was held that, "at the stage of deciding Bail Application,
it is not mandatory for the prosecution to place before the Court the
report of authority disclosing its independent review of the evidence
garnered in the course of investigation" . It was held that, "this
54 APEAL-664-16-Prasad Purohit.doc
satisfaction of the authority or report recommending sanction for
prosecution is not necessary to be placed before the Court when the
Court is deciding the Bail Application."
88. Therefore, what follows from the discussion of above decisions
is that, it depends upon the nature of objection raised to the
Sanctioned Order as to when it can be decided. In this respect, one
can safely place reliance on the Judgment of our own High Court in
Anil Sadashiv Nanduskar Vs. State of Maharashtra, Laws (Bom) -
2007-11-96, cited by learned counsel for Intervenor. In this case,
the 'sanction' granted under the provisions of Section 21A and 23(2)
of the MCOC Act was challenged on the ground that concerned
authorities had not applied the mind properly. It was contended that
the letter of approval did not disclose the material placed before the
Sanctioning Authority and the Sanction Order, ex-facie, did not
disclose that the concerned authority has considered as to whether
the Appellant was member of the alleged syndicate involved in
commission of the offence. While dealing with these submissions,
after taking into consideration the law laid down by the Hon'ble
Apex Court in various authorities, the Division Bench of this Court
was pleased to observe as follows :-
55 APEAL-664-16-Prasad Purohit.doc
"The settled law by a catena of decisions of Apex Court
is to the effect that it is desirable that every order
whether the approval or sanction, it should speak for
itself, i.e. ex-facie, it should disclose consideration of
the materials placed before it and application of mind
thereto. However, failure to reproduce or refer those
recitals in the resolution or order itself would not
render the order of approval or sanction to be invalid
unless the prosecution fails to establish by leading
evidence that all the materials necessary for the grant
of approval or sanction were placed before the
concerned authority for due application of mind by
such authority before the grant of approval and or
sanction. It apparently discloses that question of
validity of approval or sanction cannot be decided
unless the prosecution is afforded opportunity to lead
evidence in that regard. Undoubtedly, an accused
desiring to raise objection regarding the defects in
such approval or sanction, or, grant, he can raise such
objection; however, for conclusive decision on the said
point, the accused has to wait till the trial is complete
and on that ground, he cannot insist for discharge
unless the objection relates to inherent lack of
jurisdiction to the concerned authority to grant
sanction or approval and such issue can be decided on
undisputed facts. The law being well settled to the
effect that the prosecution in a case where sanction or
the approval order does not ex-facie show
consideration of all the materials and/or application of
mind, is entitled to establish the same by leading
necessary evidence regarding production of materials
56 APEAL-664-16-Prasad Purohit.doc
before the concerned authority, the question of
discharge of accused merely on the basis of such
objection being raised cannot arise. The decision on
the point of defect, if any, in the order of approval or
sanction will have to be at the conclusion of the trial."
[Emphasis Supplied]
89. In view of this settled position of law, in our opinion, in the
instant case also, merely because there is no reference to the report
of the Reviewing Authority in the Sanction Order, at this stage, this
Court cannot come to the conclusion that the review report was not
considered by the Sanctioning Authority and, hence, the 'sanction' is
invalid. Whether Sanctioning Authority has considered such report
or not can be decided only after the Sanctioning Authority is given
an opportunity to state so, at the time of trial. Hence, at this stage,
this contention raised by learned counsel for the Appellant
challenging the sanction order cannot be accepted.
Factual Aspects of this Case qua the Appellant
90. In this case it is a matter of record that this is the third Bail
Application of the Appellant. Though the Appellant contends that,
practically, it is his first Bail Application, it is a matter of record that
his first Bail Application bearing Miscellaneous Application No.42 of
57 APEAL-664-16-Prasad Purohit.doc
2008 was rejected by the Special Court and the Appeal preferred by
the Appellant against the said order also came to be rejected by this
Court. No doubt, the Hon'ble Apex Court has restored the said Bail
Application for a fresh decision in the light of the doubt expressed by
the Hon'ble Apex Court about the applicability of MCOC Act, but, it is
a matter of record that, after decision of the Hon'ble Apex Court also,
the Appellant's Bail Application (Exhibit-2295), with Bail
Application No.42 of 2008, came to be rejected by the Special Court.
The Appeal preferred against the same, bearing Criminal Appeal
No.138 of 2016, came to be withdrawn by the Appellant in view of
the report filed by NIA, under Section 173(8) of the Code.
91. This Bail Application is, therefore, mainly on the ground of
change in circumstance, as NIA has dropped the charges under
MCOC Act against all the Accused, including the present Appellant.
It is urged that, as a consequence to dropping of charges under
MCOC Act, the confessional statements of co-accused cannot be
taken into consideration. Moreover, some material prosecution
witnesses have, in investigation by NIA, retracted their statements
recorded by ATS. Thus, the main emphasis of the Appellant for
seeking bail is now on the investigation conducted by NIA and, in
58 APEAL-664-16-Prasad Purohit.doc
addition to that, on the Report of the Court of Inquiry conducted
against him by the Ministry of Defence, which, according to the
Appellant, prima facie, show that he has participated in the
meetings as 'Military Intelligence Officer' in discharge of his duties,
to create counter intelligence.
Re-investigation / Further Investigation Carried Out by NIA
92. In the present case, admittedly, two Investigating Agencies
have conducted the investigation. Initially, ATS has filed Charge-
Sheet against, in all, twelve accused persons, including the present
Appellant, showing two accused, by name, Ramji @ Ramchandra
Gopalsingh Kalsangra and Sandip Dange, as 'absconding accused'.
Thereafter, NIA has made investigation in the matter, as per the
direction of the Central Government, and has submitted further
Investigation Report, under Section 173(8) of the Code. The Report
filed by NIA reveals that NIA is not in agreement with the
investigation done by ATS on certain points, but, at the same time,
NIA has accepted the investigation done by ATS on several other
aspects of the matter. NIA has recorded the statements of some
more witnesses and re-recorded the statements of the witnesses
already examined by ATS. NIA has also exonerated some of the
59 APEAL-664-16-Prasad Purohit.doc
Accused, like, Accused No.1-Pragya Singh Thakur, Accused No.2-
Shivnarayan Kalsangra, Accused No.3-Shyam Sahu, Accused No.12-
Praveen Takkalki, Accused No.15-Lokesh Sharma and Accused
No.16-Dhan Singh Choudhary, of all the charges levelled against
them. However, so far as Appellant is concerned, NIA has,
admittedly, not exonerated him from the charges levelled against
him, though the charges under MCOC Act are dropped against him
also, along with the other co-accused.
93. Mr. Desai, the learned Senior Counsel for the intervenor in
this regard vehemently argued that fresh / re-investigation can be
undertaken at the instance of the higher Courts only. He submitted
that whatever investigation is carried out by the NIA is without
authority from higher Courts and therefore it is illegal. He heavily
relied upon the decision of the Apex Court in Vinjay Tyagi v. Irshad
Ali @ Deepak [(2013) 5 SCC 762]. In this case one of the question
which fell for consideration before the Apex Court was, 'whether CBI
is empowered to conduct fresh investigation / re-investigation when
cognizance has already been taken by the Court of competent
jurisdiction on the basis of a police report under section 173 of the
Code?' The Apex Court thus observed in paragraph 45 :
60 APEAL-664-16-Prasad Purohit.doc
"45. The power to order/direct "reinvestigation" or "de
novo" investigation falls in the domain of higher
courts, that too in exceptional cases. If one examines
the provisions of the Code, there is no specific
provision for cancellation of the reports, except that
the investigating agency can file a closure report
(where according to the investigating agency, no
offence is made out). Even such a report is subject to
acceptance by the learned Magistrate, who, in his
wisdom, may or may not accept such a report. For
valid reasons, the Court may, by declining to accept
such a report, direct "further investigation", or even
on the basis of the record of the case and the
documents annexed thereto, summon the
accused."[Emphasis Supplied]
94. Reading of above observations make it clear that power of
ordering fresh or de novo investigation needs to be exercised by the
higher judiciary sparingly and in the rarest of rare cases. There is
no dispute that NIA in the present case has not undertaken such
further investigation on the basis of any order passed by the higher
judiciary but the Central Government in exercise of powers under
section 6(5) of the NIA Act, by the order dated 1st April 2011
transferred the investigation of the subject crime to the NIA and
accordingly NIA re-registered the offence and started further
investigation. The order of the Central Government transferring the
61 APEAL-664-16-Prasad Purohit.doc
investigation of the subject crime to the NIA was challenged by the
present Appellant by filing Criminal Writ Petition No.4049 of 2012
which was decided by this Court by its order dated 11 th October
2013. In the said writ petition the Appellant herein challenged the
handing over of the investigation to the NIA and sought a writ
restraining NIA from exercising any power in pursuance of the NIA
Act for doing fresh or further investigation of the subject crime.
However, after hearing the parties and analysing the provisions of
NIA Act, this Court concluded that the power of NIA to investigate is
absolute and it is a matter of procedure, then there is no vested right
created in the accused to object to the course permitted by the
statute and there is no need to read down section 6 of the NIA Act.
It was further held by this Court that when the NIA comes into
picture for the purpose of investigation and prosecution of the
scheduled offence, then, that very object and purpose will be
defeated if the investigating agency is prevented from investigating
the crime.
95. In the light of the same, we hold that, at present, the challenge
raised to the investigation carried out by NIA is difficult to be
accepted.
62 APEAL-664-16-Prasad Purohit.doc
96. In such circumstances, the first and foremost question arising
for consideration is, 'what can be the effect of further investigation
conducted by NIA on the earlier investigation done by the ATS?' and
'when there are more than two or more investigations conducted by
the same or different agencies, what can be the effect?' In our
considered opinion, the answer to this question is clearly found in
the landmark decision of Vinay Tyagi Vs. Irshad Ali alias Deepak
and Ors., (2013) 5 SCC 762, relied upon by Special P.P. and learned
Senior Counsel for Intervenor.
97. It was held by the Hon'ble Apex Court in the said case that
neither the Investigating Agency has power to conduct such fresh /
de novo investigation / re-investigation, nor the Magistrate has
power to direct the same. Only the higher judiciary, in exercise of
extra-ordinary or inherent jurisdiction, has power to direct such
fresh / de novo investigation or re-investigation by the same or any
other specialized agency.
98. It was held that, if such investigation or de novo investigation
is directed, then higher Court should pass a specific order regarding
the fate of investigation already conducted and the report of such
63 APEAL-664-16-Prasad Purohit.doc
investigation filed before the Magistrate. It was further held that, if
no such specific order is passed in regard to the prior investigation /
report, the same remains the part of the record.
99. In this reported authority, initial investigation was carried out
and primary report was filed by Delhi Police. Further investigation
by CBI was directed by High Court of Delhi, whereon Closure Report
was filed by CBI. While directing the investigation by CBI, High Court
has not passed any order or direction staying further investigation
by Delhi Police or striking out from record the primary report filed
by the Delhi Police. In the light of the same, it was held that, once the
High Court has not passed any specific order regarding fate of
investigation already conducted and the report filed by Delhi Police,
then there is no question of treating first report or primary report as
being withdrawn, cancelled or capable of being excluded from
records by implication. It was, accordingly, held that, the Trial Court
has to consider the entire record including, both, the Delhi Police
Report filed under Section 173(2) of the Code, as well as Closure
Report filed by CBI and the documents filed along with these two
reports. The Hon'ble Apex Court has further held that, the Trial
Court has three options. Firstly, it may accept application of the
64 APEAL-664-16-Prasad Purohit.doc
accused for discharge; secondly, it may direct that the trial may
proceed further in accordance with law; and, thirdly, if it is
dissatisfied on any important aspect of investigation already
conducted and in its considered opinion, it is just, proper and
necessary in the interest of justice to direct "further investigation",
it may do so.
100. In paragraph No.22 of its Judgment, the Hon'ble Apex Court
was pleased to consider the effect of further investigation carried
out under Section 173(8) of the Code by observing that,
"Significant feature of further investigation is that it
does not have the effect of wiping out directly or
impliedly the initial investigation conducted by the
Investigating Agency. This is a kind of continuation of
the previous investigation. The basis is discovery of
fresh evidence and in continuation of the same offence
and chain of events relating to the same occurrence
incidental thereto. In other words, it has to be
understood in complete contradistinction to a "re-
investigation", "fresh", or, "de novo" investigation."
[Emphasis Supplied]
101. However, as regards the fresh investigation or re-investigation
or de novo investigation, it was held that,
65 APEAL-664-16-Prasad Purohit.doc
"There has to be a definite order of the Court and such
order should unambiguously state as to whether the
previous investigation, for reasons to be recorded, is
incapable of being acted upon. Neither the Investigating
Agency nor the Magistrate has any power to order or
conduct "fresh investigation".
102. It was further held that,
"It is essential that even an order of "fresh" / "de novo"
investigation passed by the higher judiciary should
always be coupled with a specific direction as to the fate
of the investigation already conducted."
103. According to the Hon'ble Apex Court, such power of ordering
"fresh" or "de novo" investigation needs to be exercised by the
higher judiciary, sparingly and in the rarest of rare case. In
paragraph No.45 of the Judgment, the Hon'ble Apex Court was
pleased to observe as follows :-
"45. The power to order/direct "reinvestigation" or "de
novo" investigation falls in the domain of higher
courts, that too in exceptional cases. If one examines
the provisions of the Code, there is no specific
provision for cancellation of the reports, except that
the investigating agency can file a closure report
(where according to the investigating agency, no
66 APEAL-664-16-Prasad Purohit.doc
offence is made out). Even such a report is subject to
acceptance by the learned Magistrate, who, in his
wisdom, may or may not accept such a report. For
valid reasons, the Court may, by declining to accept
such a report, direct "further investigation", or even
on the basis of the record of the case and the
documents annexed thereto, summon the accused."
[Emphasis Supplied]
104. In paragraph No.46, the Hon'ble Apex Court was further
pleased to hold as follows :-
"46. ............................................. The superior courts can
direct conduct of a "fresh"/"de novo" investigation,
but unless it specifically directs that the report
already prepared or the investigation so far
conducted will not form part of the record of the case,
such report would be deemed to be part of the record.
Once it is part of the record, the learned Magistrate
has no jurisdiction to exclude the same from the
record of the case. In other words, but for a specific
order by the superior court, the reports, whether a
primary report or a report upon "further
investigation" or a report upon "fresh investigation",
shall have to be construed and read conjointly. Where
there is a specific order made by the court for reasons
like the investigation being entirely unfair, tainted,
undesirable or being based upon no truth, the court
would have to specifically direct that the
investigation or proceedings so conducted shall stand
67 APEAL-664-16-Prasad Purohit.doc
cancelled and will not form part of the record for
consideration by the court of competent jurisdiction."
[Emphasis Supplied]
105. Ultimately, in paragraph No.53 of its Judgment, the Hon'ble
Apex Court specifically answered Question No.1, which was
formulated for its consideration, 'as to which report to be considered
by the Magistrate when there are more than one investigation' , as
follows :-
"53. The court of competent jurisdiction is duty-bound to
consider all reports, entire records and documents
submitted therewith by the investigating agency as
its report in terms of Section 173(2) of the Code. This
rule is subject to only the following exceptions :
(a) Where a specific order has been passed by the
learned Magistrate at the request of the
prosecution limited to exclude any document or
statement or any part thereof;
(b) Where an order is passed by the higher courts
in exercise of its extra-ordinary or inherent
jurisdiction directing that any of the reports i.e.
primary report, supplementary report or the
report submitted on "fresh investigation" or
"re-investigation" or any part of it be excluded,
struck off the court record and be treated as
non est." [Emphasis Supplied]
68 APEAL-664-16-Prasad Purohit.doc
106. Thus, perusal of this Judgment of the Hon'ble Apex Court
makes it more than crystal clear that, even if "fresh" / "de novo" or
"re-investigation" is carried out by different agency, the earlier
investigation report is not wiped out from the record, in the absence
of any specific order passed by the higher court to that effect, while
ordering such "fresh" / "de novo" or "re-investigation". As a result,
the Court has to consider and read conjointly, both, the earlier
report and also the subsequent report.
107. In the instant case, the investigation done earlier by ATS,
therefore, cannot be said to be wiped out totally from the record
merely because, subsequently, NIA has carried out fresh / de novo or
re-investigation. Admittedly, the NIA has not undertaken such
"further", "fresh" / "de novo", or, re-investigation on the basis of or
in pursuance of any order passed by the higher judiciary, but NIA
has done so under the provisions of Section 6(5) of the NIA Act,
which empowers the Central Government to suo-motu direct the
investigation by NIA, if the Central Government is of the opinion
that a scheduled offence has been committed. Therefore, as
investigation was directed by Central Government, there was no
question of higher judiciary making any specific order that the
earlier report of investigation carried out by ATS or any part thereof
69 APEAL-664-16-Prasad Purohit.doc
was to be excluded or struck-off the record and to be treated as non
est. In such situation, both, the report of the investigation filed by
ATS and also the report of investigation filed by NIA are required to
be considered and read conjointly to decide whether any prima facie
case exists against the Appellant.
108. It is pertinent to note that, in the above said authority, even
when the application was for discharge of the Accused, in view of the
Closure Report filed by CBI, the Hon'ble Apex Court was pleased to
hold, in paragraph No.58, that,
"The application for discharge filed by the accused on
the strength of such closure report filed by CBI has to be
decided after examining the entire record, including the
report filed by Delhi Police under Section 173(2) of the
Code."
109. The contrary view taken by the Delhi High Court that only the
closure report filed by the CBI could be taken into consideration was
not accepted by the Hon'ble Supreme Court.
110. It was further held in paragraph No.60 that,
"There is no question of treating the first report as being
withdrawn, cancelled or capable of being excluded from
70 APEAL-664-16-Prasad Purohit.doc
the records by the implication. In fact, except by a
specific order of a higher court competent to make said
orders, the previous as well as supplementary report
shall form part of the record, which the Trial Court is
expected to consider for arriving at any appropriate
conclusion, in accordance with law."
111. Accordingly, the Trial Court was directed to consider the
entire record, including, both, the Delhi Police Report, filed under
Section 173(2) of the Code, as well as the Closure Report filed by CBI
and the documents filed along with these reports.
112. In the instant case, therefore, the unequivocal legal position is
that, the Court has to consider the investigation report along with
the record filed by ATS and also the report filed by NIA along with
the documents.
Applicability of MCOCA Provisions
113. At this stage, it may also be necessary to consider the
applicability of the provisions of the MCOC Act to the present case.
According to learned counsel for the Intervenor, though NIA has
dropped the charges under the provisions of MCOC Act, accused in
the case, including the Appellant, cannot be discharged from the
71 APEAL-664-16-Prasad Purohit.doc
said offences, as already this Court has taken cognizance of the case
under the provisions of MCOC Act. According to learned counsel for
the Intervenor, even in the judgment of the Hon'ble Apex Court
dated 15th April 2015 passed in Criminal Appeal No.1169-1970 of
2010, the Hon'ble Apex Court has, though raised doubt about the
applicability of the provisions of the MCOC Act, to the present
Appellant and other co-accused are concerned, except Accused No.7-
Rakesh Dhawde, these accused are not discharged from the offences
registered under MCOC Act. In such circumstances, according to
him, no clean-chit can be given to the Appellant or other co-accused
from the offences registered under the MCOC Act.
114. It is further submitted by learned counsel for the Intervenor
that, at this stage, when the investigation conducted by the ATS,
implicating the accused with the offences under MCOC Act and the
investigation conducted by NIA stand side by side, they have to be
read conjointly. It is, therefore, submission of learned counsel for
the Intervenor that the confessional statements of Accused Nos.7,
10 and 12 are required to be considered, along with other material
on record, while deciding prima facie case of the prosecution against
the Appellant for the purpose of deciding her Bail Application. In
support of this submission, learned counsel for the Intervenor, has
72 APEAL-664-16-Prasad Purohit.doc
relied upon the judgment of the Hon'ble Apex Court in the case of
State of Tamil Nadu Vs. Nalini & Ors., (1999) 5 SCC 253.
115. This submission of learned counsel for the Intervenor is
strongly controverted by learned counsel for the Appellant on the
count that, the Hon'ble Apex Court has already expressed doubts
about the applicability of MCOC Act to these accused and now the
clean-chit is given by NIA by dropping those charges under the
MCOC Act against all the Accused. Hence, according to him, there is
no question of this Court taking into consideration the confessional
statements of Accused Nos.7, 10 and 12, which could have been
admissible only if the provisions of MCOC Act were applicable.
116. In our considered opinion, in order to appreciate these rival
submissions, this Court has to consider the observations made by
the Hon'ble Apex Court in the above referred Judgment dated 15 th
April 2015 passed in Criminal Appeal No.1969-1970 of 2010,
against the order passed by this Court. In these Appeals, Appellant
and Accused No.9-Prasad Purohit had challenged the very
applicability of the provisions of MCOC Act to the present case and
while deciding the said issue raised for its consideration, the Hon'ble
73 APEAL-664-16-Prasad Purohit.doc
Apex Court was pleased to observe in paragraph No.95 of its
Judgment as follows :-
95. In the light of our above conclusions on the various
submissions, we are convinced that in respect of the
appellant in Criminal Appeal No.1971 of 2010,
namely, A-7, there is no scope even for the limited
purpose of Section 21(4)(b) to hold that application of
MCOC Act is doubtful. We have held that the said
appellant A-7 had every nexus with all the three
crimes, namely, Parbhani, Jalna and Malegaon and,
therefore, the bar for grant of bail under Section 21
would clearly operate against him and there is no
scope for granting any bail. Insofar as the rest of the
appellants are concerned, for the purpose of invoking
Section 21(4)(b), namely, to consider their claim for
bail, it can be held that for the present juncture with
the available materials on record, it is not possible to
show any nexus of the appellants who have been
proceeded against for their involvement in Malegaon
blast with the two earlier cases, namely, Parbhani and
Jalna. There is considerable doubt about their
involvement in Parbhani and Jalna and, therefore,
they are entitled for their bail applications to be
considered on merits." [Emphasis Supplied]
117. It may be true that Hon'ble Apex Court has not dropped the
charges under MCOC Act, but it appears to be so, as investigation by
NIA at that time was in progress. Hence, the Hon'ble Apex Court has
74 APEAL-664-16-Prasad Purohit.doc
not dropped the charges of MCOC against the Appellant and other
co-accused. However, the Hon'ble Apex Court has clearly raised a
considerable doubt about the applicability of those charges and has
directed that so far as the Bail Applications of the present Appellant
and other co-accused, except Accused No.7-Rakesh Dhawde, are
concerned, they should be decided on their own merit. This
observation of the Hon'ble Apex Court could be further found in
paragraph No.98 of its judgment, wherein the Hon'ble Apex Court
set aside the orders of rejection of the bail of the Appellant therein,
namely, Prasad Purohit, by holding that there is enough scope to
doubt as to the application of MCOC Act under Section 21(4)(b) for
the purpose of grant of bail and, accordingly, the Hon'ble Apex Court
directed the Special Judge to consider their application for bail on
merits, keeping in mind the law laid down in the reported
authorities, which were referred in paragraph Nos.96 and 97 of the
Judgment, and directed to pass the orders accordingly. In the said
paragraph itself, it was directed that the bail application of the
present Appellant is also restored to the file of the learned Special
Judge for passing orders on merit. The Appellant herein was, thus,
also held entitled for the same relief, as was granted to the Appellant
therein, of consideration of her application for grant of bail. Thus,
75 APEAL-664-16-Prasad Purohit.doc
the Hon'ble Apex Court has made the things very clear by directing
that the Bail Application of the present Appellant is to be decided on
merits, without considering the provisions of MCOC Act.
118. Once it is held that the provisions of the MCOC Act are not to
be considered for deciding the Bail Application, then the next
question arising for consideration is, 'whether the confessional
statements of Accused Nos.7, 10 and 12 can be taken into
consideration for deciding these Bail Applications'?
119. As stated above, according to learned counsel for the
Intervenor, these confessional statements can be taken into
consideration even if the provisions of MCOC Act are held to be not
applicable, as that observation of the Hon'ble Apex Court pertains
only in respect of applicability of Section 21(b) of MCOC Act, which
pertains to stringent provisions of bail. According to learned counsel
for the Intervenor, the order of the Hon'ble Apex Court nowhere
reflects that, while deciding the Bail Application of the Appellant,
confessional statements of co-accused should be excluded from
consideration. According to learned counsel for Intervenor, further
observations made by Hon'ble Apex Court in paragraph No.96 make
it clear that the Bail Applications of Appellant and other co-accused
76 APEAL-664-16-Prasad Purohit.doc
were to be decided not on the touch-stone of Section 21(b) of MCOC
Act, but on its own merits, as the Hon'ble Apex Court has then
referred to the parameters for granting bail, as laid down in the
landmark decisions of State of U.P., through CBI, Vs. Amarmani
Tripathi, 2005 (8) SCC 21, and Kalyan Chandra Sarkar Vs. Rajesh
Ranjan @ Pappu Yadav & Anr., AIR 2005 SC 921.
120. In support of his submission, as the learned counsel for
Intervenor has placed reliance on the observations of the Hon'ble
Apex Court in the case of State of Tamil Nadu Vs. Nalini and Ors.
(Supra), it is necessary to refer to those observations also. In this
case it was held that,
"Even if the accused persons, at the end of trial, are
acquitted for the offences under MCOC Act, still the
confessional statements of co-accused can be
considered and relied upon for the purpose of the
offences punishable under IPC."
121. According to learned counsel for the Intervenor, therefore, if
confessional statements of co-accused can be relied upon even after
their acquittal for the charges under TADA and in this case MCOC
Act, then the confessional statements of co-accused in this case
cannot be kept away at the stage of deciding Bail Applications.
77 APEAL-664-16-Prasad Purohit.doc
According to learned counsel for Intervenor, as the Hon'ble Apex
Court has not set aside the order of this Court holding that
provisions of MCOC Act are applicable, it has to be held that
confessional statements of co-accused need to be considered while
deciding this application for bail.
122. In our considered opinion, at this stage, this point should not
detain us for long, because the observations of the Hon'ble Supreme
Court in the case of State of Tamil Nadu vs. Nalini (Supra) make it
clear that the question of considering the confessional statements of
co-accused, recorded under MCOC Act for the purpose of the offences
punishable under IPC, arises only if the accused persons, at the end
of trial, are acquitted of the charges under MCOC Act. The material
words are 'at the end of the trial' . Hence, there has to be joint trial of
Accused and the co-accused, who have made confessional
statements under MCOC Act. Hence, at this stage, these
observations of the Hon'ble Apex Court cannot be of any help to
learned counsel for the Intervenor.
123. Secondly and most importantly, the observations made by
Hon'ble Apex Court in the Appeal preferred by the Appellant are
very clear and categorical to the effect that the Bail Applications of
78 APEAL-664-16-Prasad Purohit.doc
the Appellant and other co-accused are to be decided on their own
merits, excluding the applicability of the MCOC Act. Hence, at this
stage, we deem it proper not to enter into the controversy or
prejudge the issue, "as to whether the confessional statements of the
co-accused can be taken into consideration for deciding the charges
under IPC, even if Accused are acquitted under TADA or MCOC Act",
especially when the trial and applications for discharge filed by the
Accused are pending before the Special Court.
124. Admittedly, in this case, the confessional statements of co-
accused were recorded as the provisions of MCOC Act were invoked
and once those provisions are not to be considered for the purpose of
deciding this Bail Application, as per the order of Hon'ble Apex
Court, then, to be on safer side, it would be proper on our part to
exclude those confessional statements from our consideration while
deciding this Appeal, as was rightly done by the Special Court.
Moreover, in our opinion, even if those confessional statements of
co-accused are excluded from consideration, still there is more than
sufficient material on record to infer prima facie case against the
present Appellant.
79 APEAL-664-16-Prasad Purohit.doc
Criterias For Deciding Bail Application
125. The law relating to the factors or parameters, which are
required to be considered at the stage of deciding the Bail
Application, are very well crystallized and laid down by the Hon'ble
Apex Court in plethora of its authorities and two of those authorities
are relied upon by the Hon'ble Apex Court itself in its Judgment in
the case of Prasad Purohit (supra), in paragraph No.96, and
direction to the Special Court was also given to the effect that the
Special Court should decide the application of the Appellant and
other accused for bail, keeping in mind those considerations and
parameters. Therefore, it would be useful to reproduce those
observations as follows :-
96. When once we are able to steer clear of the said
position, the other question to be considered is the
grant of bail on its own merits. For which purpose, the
submission of Mr. Mariarputham, learned Senior
Counsel who appeared for the State of Maharashtra
and NIA, based on the decision relied upon by him in
State of U.P. Vs. Amarmani Tripathi, (2005) 8 SCC
21, should be kept in mind, in particular para 18,
which reads as under :-
"18. It is well settled that the matters to be considered in
an application for bail are (i) whether there is any
prima facie or reasonable ground to believe that the
80 APEAL-664-16-Prasad Purohit.doc
accused had committed the offence; (ii) nature and
gravity of the charge; (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 tampered with;
and (viii) danger, of course, of justice being
thwarted by grant of bail [Pralhad Singh Bhati Vs.
NCT, Delhi, (2001) 4 SCC 280, and Gurcharan Singh
Vs. State (Delhi Admn.), (1978) 1 SCC 118].
While a vague allegation that the accused may
tamper with the evidence or witnesses may not be a
ground to refuse bail, if the accused is of such
character that his mere presence at large would
intimidate the witnesses or if there is material to
show that he will use his liberty to subvert justice or
tamper with th;e evidence, then bail will be refused.
We may also refer to the following principles
relating to grant or refusal of bail stated in Kalyan
Chandra Sarkar Vs. Rajesh Ranjan, (2004) 7 SCC
'11. The law in regard to grant or refusal of bail is
very well settled. The court granting bail
should exercise its discretion in a judicious
manner and not as a matter of course.
Though at the stage of granting bail, a
detailed examination of evidence and
elaborate documentation of the merit of the
case need not be undertaken, there is a need
to indicate in su;ch orders reasons for prima
81 APEAL-664-16-Prasad Purohit.doc
facie concluding why bail was being granted
particularly where the accused is charged of
having committed a serious offence. Any
order devoid of such reasons would suffer
from non-application of mind. It is also
necessary for the court granting bail to
consider among other circumstances, the
following factors also before granting bail;
they are :
(a) The nature of accusation and the
severity of punishment in case of
conviction and the nature of
supporting evidence.
(b) Reasonable apprehension of
tampering with the witness or
apprehension of threat to the
complainant.
(ii) Prima facie satisfaction of the court in
support of the charge.
[Ram Govind Upadhyay Vs. Sudarshan Singh,
(2002) 3 SCC 598, and Puran V. Rambilas, (2001)
6 SCC 338]."
126. Thus, the Hon'ble Apex Court has directed the Special Court to
consider the applications of the Appellant and other Accused No.1-
Pragya Singh Thakur on merits, keeping in mind the observations
made in paragraph Nos.96 and 97 of the Judgment, as referred
above. Hence, this Court has now to consider first, 'whether there is
82 APEAL-664-16-Prasad Purohit.doc
any prima facie or reasonable ground to believe that the Appellant
has committed the offence'.
127. As rightly submitted by learned counsel for the Appellant,
Section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967
has also some relevance in this regard. Under this section,
notwithstanding anything contained in the Code of Criminal
Procedure, 1973, no person accused of an offence punishable under
Chapters IV and VI of this Act (UAP 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 of such
release. Proviso to this sub-section makes it abundantly clear that
accused person shall not be released on bail or on his bond if the
Court on a perusal of the case diary or the report made under
section 173 of the Cr.P.C is of the opinion that there are reasonable
grounds for believing that the accusation against such person is
prima facie true. Thus it is clear that the opinion that there are
reasonable grounds for believing that accusations against the
accused person is prima facie true is to be arrived at on the basis of
case diary or report made under section 173 of the Cr.P.C.. In that
view of the matter, in our opinion while considering the present bail
application of the Appellant we must take into consideration the
83 APEAL-664-16-Prasad Purohit.doc
earlier charge-sheet filed by the ATS, report filed by the ATS and
subsequent report filed under section 173(8) by the NIA after re-
investigation / further investigation.
128. According to the learned Counsel for the Appellant,
Appellant's application for bail is also required to be decided as per
the parameters laid down by the apex in Ranjitsingh
Brahmajeetsingh Sharma v. State of Maharashtra 2005(2)
Bom.C.R. (Crim) 567. In this decision, the Hon'ble Apex Court, while
considering the similar restrictions placed on bail under section
21(4) of the Maharashtra Control of Organised Crime Act, 1999 (for
short 'MCOCA'), made following observations in paragraph Nos. 46,
49 and 55.
"46. Presumption of innocence is a human right. [See
Narendra Singh and Another Vs. State of M.P.,
(2004) 10 SCC 699, para 31] Article 21 in view
of its expansive meaning not only protects life
and liberty but also envisages a fair procedure.
Liberty of a person should not ordinarily be
interfered with unless there exist cogent
grounds therefor. Sub-Section (4) of Section
21 must be interpreted keeping in view the
aforementioned salutary principles. Giving an
opportunity to the public prosecutor to oppose
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an application for release of an accused appears
to be reasonable restriction but Clause (b) of
Sub-section (4) of Section 21 must be given a
proper meaning.
49. We are furthermore of the opinion that the
restrictions on the power of the Court to grant
bail should not be pushed too far. If the Court,
having regard to the materials brought on
record, is satisfied that in all probability he may
not be ultimately convicted, an order granting
bail may be passed. .........................
55. The wording of Section 21(4), in our opinion,
does not lead to the conclusion that the Court
must arrive at a positive finding that the
applicant for bail has not committed an offence
under the Act. If such a construction is placed,
the court intending to grant bail must arrive at a
finding that the applicant has not committed
such an offence. In such an event, it will be
impossible for the prosecution to obtain a
judgment of conviction of the applicant. Such
cannot be the intention of the Legislature.
Section 21(4) of MCOCA, therefore, must be
construed reasonably. It must be so construed
that the Court is able to maintain a delicate
balance between a judgment of acquittal and
conviction and an order granting bail much
before commencement of trial........................"
85 APEAL-664-16-Prasad Purohit.doc
129. Now, 'what can be the prima facie case within the meaning of
Section 43-D(5) of the UAP Act?' In the decision of Devendra Gupta
Vs. N.I.A., 2014 SCC OnLine AP 192 , relied upon by learned counsel
for Appellant, the Division Bench of Andhra Pradesh High Court has
quoted with approval the observations made by Guwahati High
Court in Jibangshu Paul Vs. National Investigation Agency, 2011
(3) Gau LT 615, in paragraph No.98, after taking into account the
law laid down by the Hon'ble Supreme Court in various cases, as
follows :-
"98. ...................................... The proviso to Section 43-D(5)
does not require a positive satisfaction by the Court
that the case against the accused is "true". What is
required is a mere formation of opinion by the Court
on the basis of the materials placed before it. The
formation of opinion cannot be irrational or
arbitrary. Such formation of opinion cannot be based
on surmises and conjunctures; but must rest on the
materials collected against the accused. Since the
presumption of innocence runs in favour of the
accused, it logically follows that if there are, in given
circumstances, grounds for believing that the case
against the accused, is true, a case of commission of
offence under Chapter IV or Chapter V of the UAP
Act, 1967, can be said to have been made out and
when such a case is made out, it would be
86 APEAL-664-16-Prasad Purohit.doc
tantamount to saying that reasonable grounds exist
for opining that the accusations are prima-facie true.
In such a case, the bar imposed by proviso to Section
43-D(5) on the Courts power to grant bail, gets
attracted."
Circumstances Alleged Against Appellant
130. For proving the prima facie case against the Appellant, the
prosecution has relied upon four circumstances, viz. (i) the
transcriptions of the conversations in the meetings, obtained from
the laptop of Accused No.10-Swami Amrutanand; (ii) statements of
PW-55, PW-79 and PW-112, recorded under Section 161 as well as
164(5) of the Code; (iii) intercepted telephonic conversations
between the Appellant and the co-accused; and (iv) finding of traces
of RDX in the house of co-accused No.11-Sudhakar Chaturvedi.
(i) Transcriptions of the Conversations in the
Meetings and Telephonic Calls
131. As to the first piece of material, relied upon by prosecution,
according to the Appellant, there is nothing in the transcriptions of
the conversation in the meetings to show that he and co-accused
hatched the criminal conspiracy to commit bomb-blast at Malegaon.
It is his further submission that in the said meetings, the persons
87 APEAL-664-16-Prasad Purohit.doc
present have expressed their general opinion about the then
prevailing political and social situation. Moreover, the Report of the
Court of Inquiry as well as the documents filed by the Ministry of
Defence and even the statement of PW-121 show that Appellant had
informed the details of these meetings to his superiors, as he has
attended the said meetings to create the counter intelligence. It is
urged that these documents clearly destroy the theory of
prosecution that Appellant was present in these meetings as a
conspirator. It is further urged that none of the absconding accused,
who have allegedly committed the Malegaon bomb-blast, were
participants in the meetings or that they were communicated by the
Appellant about what was transpired in the said meetings. Thus, it is
submitted that there is absolutely no connection between the
Malegaon bomb-blast and these meetings, as there is no common
thread running through the same.
132. As regards the Call Detail Record, it is submitted that there are
no calls exchanged between the absconding accused, who had
allegedly caused Malegaon bomb-blast, and the Appellant at any
time during the period of conspiracy, though, in the normal course,
there would have been increase in frequency of calls between them,
88 APEAL-664-16-Prasad Purohit.doc
at-least, at the fag-end of the conspiracy; particularly, if the
Appellant was the principle conspirator, as alleged by the
prosecution.
133. As to the intercepted telephonic conversation, on which the
prosecution has placed reliance, it is urged that the object of
conspiracy, as per the prosecution case, was to commit Malegaon
bomb-blast on 29th September 2008. The ATS has, however, without
any reason extended the period of conspiracy from January 2008
till 23rd October 2008. It is submitted that once the object of
conspiracy is achieved, the offence of conspiracy comes to an end
and the prosecution has, thus, not explained as to why the period of
conspiracy is extended upto 23rd October 2008, when the bomb-blast
had taken place on 29th September 2008. There is no evidence to
show that any acts were done by the accused during this period from
29th September 2008 till 23rd October 2008. The alleged phone calls
between the Appellant and Accused No.4-Ramesh Upadhyay show
that they were merely trying to take precautions so as to guard the
role of 'Military Intelligence' because of international ramifications.
It is urged that there is no evidence to show that prior to the date of
bomb-blast or subsequent to it, the Appellant was in touch with any
89 APEAL-664-16-Prasad Purohit.doc
other conspirators. In fact, the statement of PW-105 shows that
Appellant was, at the relevant time, at Panchmadhi. Thus, the main
contention of the Appellant in respect of these two pieces of
evidence, namely, transcriptions of the meetings and the
intercepted telephonic conversation between the Appellant and co-
accused, is that the Appellant had attended these meetings as a part
of his duty and that was the reason why he has reported about the
same to his superior officers, otherwise he would not have done so.
For substantiating this submission, the learned counsel for
Appellant has relied upon the documents filed by the Ministry of
Defence and the papers of the Court of inquiry. According to learned
counsel for the Appellant, for deciding the Bail Application, these
documents are necessary to be considered.
134. Per contra, submission of learned Special P.P. and learned
counsel for the Intervenor on this aspect is that, these documents
cannot be taken into consideration, as they are in support of the
defence of Appellant and they are not part and parcel of the Charge-
Sheets submitted by both the Investigating Agencies.
135. In our considered opinion also, there is much substance in
these submissions advanced by learned Special P.P. and learned
90 APEAL-664-16-Prasad Purohit.doc
counsel for the Intervenor. Admittedly, these documents filed by the
Ministry of Defence and the papers of Court of Inquiry are not
forming part of any of the two Reports, either filed by ATS under
Section 173(2) of the Code or by the NIA under Section 173(8) of
the Code. Section 43-D(5) of UAP Act, which deals with the
provisions relating to bail, as referred above; especially the Proviso
thereto, clearly states that,
"Accused persons shall not be released on bail, if, on
perusal of the Case Diary or the Report made under
Section 173 of the Code, the Court is of the opinion
that there are reasonable grounds for believing that
accusation against such person is prima facie true."
[Emphasis Supplied]
136. It, therefore, follows that, for formulating the opinion that
there are reasonable grounds for believing that the accusation
against accused person is prima facie true, the only documents the
Court has to peruse are the Case Diary or the Report made under
Section 173 of the Code. This Section, thus, nowhere contemplates
for the Court to consider any other documents, much less, the
documents produced by the accused, to formulate its opinion as to
whether there are reasonable grounds for believing that the
accusation against such person is prima facie true or not. Section
91 APEAL-664-16-Prasad Purohit.doc
173 of the Code specifically elaborates as to which documents and
material are required to be filed along with the report. In this
respect, Sub-section (5) of Section 173 of the Code is very relevant,
which states that,
"173(5). When such report is in respect of a case to
which Section 170 applies, the police officer
shall forward to the Magistrate along with the
report -
(a) all documents or relevant extracts
thereof on which the prosecution
proposes to rely other than those
already sent to the Magistrate during
investigation;
(b) the statements recorded under
section 161 of all the persons whom
the prosecution proposes to examine
as its witnesses."
137. Thus, apart from these documents, which are filed along with
the Charge-Sheet, Proviso to Section 43-D(5) of the UAP Act does
not contemplate perusal of any other documents at the time of
deciding the Bail Application. In other words, the Bail Application of
the accused for the offences punishable under UAP Act is to be
decided on perusal of the Case Diary or the Report made under
Section 173 of the Code. Otherwise, as rightly submitted by learned
92 APEAL-664-16-Prasad Purohit.doc
Special P.P., it would be a mini-trial. In such situation, when the
specific provision is made in the Proviso to Section 43-D(5) of UAP
Act as to which material should be considered by the Court while
forming the opinion as to whether there is reasonable ground for
believing that accusation against the accused is prima facie true, it
follows that, at this stage, perusal of no other material is
contemplated by the Legislation.
138. In this respect, one can also place reliance on the Judgment of
Hon'ble Apex Court in the case of State of Orissa Vs. Devendranath
Padhi, AIR 2005 SC 359. The said Judgment deals with the
provisions of Section 227 of the Code and the issue raised before the
Hon'ble Apex Court was, 'whether at the stage of deciding of whether
charge is to be framed against the Accused or he is to be discharged,
the material produced by the Accused in support of his defence can
be taken into consideration or not'. While answering this legal issue,
the Hon'ble Apex Court has considered the scope of Section 227 of
the Code and held that, "as the words in the said Section expects the
Court to decide whether charge to be framed or not, only on the
consideration of the "record of the case"; as the record of the case
means the report under Section 173(2) of the Code, filed along with
93 APEAL-664-16-Prasad Purohit.doc
the documents mentioned under Section 173(5) of the Code, there is
no scope to consider any material or document produced by the
Accused at that stage".
139. In the present case, therefore, in view of the specific provision
made in Proviso to Section 43-D(5) of the UAP Act, as to which
documents are required to be considered for deciding the Bail
Application of the Accused, it has to be held that no other
documents, namely, the documents produced by the Appellant or
the Ministry of Defence, need to be considered for this purpose.
140. As regards the authority relied upon by learned counsel for the
Appellant that of Kum. Mahima d/o Santosh Jain Vs. The State of
Maharashtra and Ors., 2015 SCC OnLine BOM 6161 , it is pertinent
to note that, in that case, the application was filed by the
Complainant under Section 439(2) of the Code for cancellation of
the bail granted to the Accused. At the time of deciding the said
application, the Accused has produced certain text messages of the
chats between him and the Complainant. It was submitted on behalf
of learned counsel for the Accused that, these text messages of the
chat were handed over by the Accused to the Investigating Officer,
94 APEAL-664-16-Prasad Purohit.doc
when he was interrogated. However, they were not enclosed or filed
with the Charge-Sheet by the Investigating Officer. This particular
submission of learned counsel for the Accused was not countered by
learned counsel for the Complainant and learned A.P.P. In such
situation, the Trial Court has considered all these text messages and
text chats between the Complainant/Prosecutrix and Accused, while
rejecting the application filed by the Complainant for cancellation of
the bail of the accused. The said order was challenged on the count
that Trial Court should not have considered these text messages, as
they were not forming part of the Charge-Sheet. In that context, it
was held by this Court that,
"Merely because these text messages were not forming
part and parcel of the Charge-Sheet, the Court cannot
be prevented from looking into such material, which
was available with the Investigating Officer and for the
reasons best known to the Investigating Agency, it
does not form the part and parcel of the Charge-Sheet".
141. In the said context, therefore, it was held that,
"Grant or refusal of bail deals with the personal liberty.
While dealing with this delicate issue, Court has to
consider each and every aspect. No one can expect
from the Court that while deciding such issue, the view
of the Court should passed through a narrow lane."
95 APEAL-664-16-Prasad Purohit.doc
142. Accordingly, it was held that, there was no reason to brand the
order passed by the Trial Court as 'perverse', merely because it has
taken into consideration the chat messages, which were not forming
part of the Charge-Sheet.
143. It is, therefore, clear that these observations came to be made
in the peculiar facts of that case; especially because Accused has
produced those text messages before the Investigating Officer and,
despite that, Investigating Officer has not produced them along with
the Charge-Sheet. Secondly, the said authority is under the
provisions of Section 439(2) of the Code, which Section does not
contain any specific provision, like, Section 43-D(5) of the UAP Act.
As against it, in the present case, the Report of Court of Inquiry and
the documents of the Defence Ministry are subsequent to the
incident of bomb-blast and, admittedly, they were not produced
before the Investigating Agency and, hence, this authority, in our
considered opinion, cannot be made applicable to the facts of the
present case.
144. Even as regards the other three authorities relied upon by
learned counsel for the Appellant that of Harshendra Kumar D. Vs.
Rebatilata Koley & Ors., (2011) 3 SCC 351; Rajiv Thapar & Ors. Vs.
96 APEAL-664-16-Prasad Purohit.doc
Madan Lal Kapoor, (2013) 3 SCC 330 and Prashant Bharti Vs. State
(NCT of Delhi), (2013) 9 SCC 293, all these authorities pertain to
the inherent jurisdiction of the High Court under Section 482 of the
Code, which pertains to the quashing of the proceedings. In that
context, it was held that, to invoke this inherent jurisdiction of the
High Court under Section 482 of the Code, the High Court, can take
into consideration the material produced by the Accused; provided
(i) such material would lead to the conclusion that the defence of the
Accused is based on sound, reasonable and in-debatable facts; (ii)
the material produced is such as would rule out and displace the
assertions contained in the charges levelled against the Accused;
and, (iii) the material produced is such as would clearly reject and
overrule the veracity of allegations contained in the accusation
levelled by the prosecution.
145. Therefore, both these authorities deal with the inherent
powers of the Court under Section 482 of the Code. It is needless to
state that, the powers of the High Court under Section 482 of the
Code being quite wider and are to be used to prevent the abuse of the
process of any Court or otherwise to secure the ends of justice, the
observations made here-in-above cannot be made applicable for
deciding the Bail Application of the Accused.
97 APEAL-664-16-Prasad Purohit.doc
146. In the backdrop of these principles, if one sees the
transcriptions of the meetings in the files, namely, "Sanatan
Bharat", dated 25th January 2008, 26th January 2008 and 27th
January 2008, these transcriptions reveal the conversations that
took place between accused persons and some witnesses, who were
present in the said meeting at Faridabad. The conversations reflect
that the following issues / points were discussed in the said
meetings:-
"(i) Participants in the meeting wanted to establish
'Hindu Rashtra' i.e. "Aryavart";
(iii) Discussion also shows that they wanted to
overawe the Government and wanted to establish
the Government in exile;
(iii) Participants were not ready to accept the present
Constitution and wanted to prepare new
Constitution suited to their ideology;
(iv) The participants were of the view that those
resisting their ideology should be ex-
communicated i.e. should be killed."
147. Even as per paragraph No.4 of the Report filed by NIA, it was
the Appellant, who proposed in secret meeting at Faridabad on 25 th
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and 26th January 2008, a separate 'Constitution' for 'Hindu Rashtra'
with separate saffron colour flag. He read over 'Constitution' of
'Abhinav Bharat', which he has prepared. He also discussed about
taking revenge of the atrocities committed by the Muslims on
Hindus.
148. It is pertinent to note that, these conversations in the meetings
was recorded by Accused No.10-Sudhakar on his laptop. During the
course of investigation, data retrieved from the laptop was sent to
FSL and as per paragraph No.12 of NIA Report, FSL Report discloses
that the voice samples of Appellant, Accused No.10-Sudhakar and
Accused No.4-Ramesh were positive and matching.
149. The transcriptions, thus, disclose that Appellant has stated in
the said meetings that he has made contacts in Israel for
implementation of the above ideology. The discussions further show
that the participants were of the opinion that there should not be a
place for Muslims in 'Hindu Rashtra'. The discussions also show that
Appellant, in the said meetings, spoke about the list of 70 persons,
who were to be ex-communicated. He also spoke about previous two
operations successfully carried out by him and of his capacity to
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execute further operations. The care was also taken to maintain
secrecy.
150. The statement of PW-94, in this respect, also shows that
during the course of his meeting with the Appellant, Appellant was
saying that revenge of the atrocities on Hindus is required to be
taken and "Abhinav Bharat" should not be developed merely as a
political party, but should work as an organization of extremists,
having capacity to eliminate the persons opposing the same. If the
contention of the Appellant that he was present in the said meeting
and participated therein merely as a part of his duty, while working
as a 'Military Intelligence Officer', and he has reported about the
same to his superior, is to be accepted and if his further contention
that 'Abhinav Bharat Organization' was only a political party is also
to be accepted, there is no reason for him to express the above views
to PW-94, who had funded the amount of Rs.10 lakhs to the said
Organization.
(ii) Statements of PW-55, PW-79 and PW-112
151. Even the statements of witnesses, like, PW-79 and PW-112, as
recorded by the ATS, reveal that in Faridabad meeting, Appellant
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had talked about 'Jihadi' activities in Maharashtra at Aurangabad
and Malegaon and he had also talked about preparation of 'Guerrilla
War" to take revenge of 'Jihadi' activities. According to PW-112 also,
after public meeting at Bhopal, there was another closed door
meeting of selected few in one room and in the said meeting,
Accused No.1-Pragya Singh Thakur, Accused No.4-Upadhyay,
Accused No.5-Sameer Kulkarni, Accused No.11-Sudhakar
Chaturvedi and some other were present along with the Appellant.
The statement of PW-112, as recorded by ATS officer, shows that in
the said meeting, Appellant talked about necessity to take
immediate planned action for taking revenge on Muslim community.
He also expressed his opinion that at Malegaon, there is Muslim
dominating area and if bomb-blast is caused there, it may amount to
taking revenge.
152. It may be true that, in his re-examination by the Investigating
Officer of NIA, PW-112 has retracted his statement that Accused
No.1-Pragya Singh Thakur had shown her readiness for arranging
persons for doing the act of bomb-blast. However, he has not
retracted the contents of his statement even before NIA to the effect
that, in the meeting at Bhopal, issue of growing 'Jihadi' activities in
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Aurangabad and Malegaon was discussed. As per his statement
recorded by NIA also, in the said meeting, Appellant explained about
'Jihadi' activities in detail and expressed the need to do something
for its prevention by expanding "Abhinav Bharat Sanghatana" in the
said area. This witness has stated to that effect even in his
statements recorded by the Metropolitan Magistrate, Mumbai and
Delhi, under Section 164(5) of the Code.
153. PW-79, in his statement recorded before ATS officer and also
before Metropolitan Magistrate, Mumbai, has stated about his
presence in Bhopal meeting and he has further stated that in the
said meeting, Appellant expressed his opinion about necessity to
take immediate planned action to take revenge against the Muslim
community and also expressed his opinion of causing bomb-blast at
Malegaon.
154. It may be true that PW-79 has in his statements recorded by
NIA and before the Metropolitan Magistrate, Delhi, denied his
presence in Bhopal meeting.
155. There is also the statement of PW-55 recorded by ATS and
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Metropolitan Magistrate, Mumbai, who has also stated about
Appellant showing him the bag containing RDX kept in the house in
March 2007. Appellant had also stated to him that there would be
big action in August and September in Nashik District. This witness
has further stated about the Appellant being disturbed on account of
arrest of Accused No.1-Pragya Singh Thakur and further making
extra-judicial confession to him about causing of bomb-blast at
Malegaon. This witness is, however, re-examined by NIA and in that
statement, he has retracted the statement made before ATS.
156. In our considered opinion, even if the statements of these
three witnesses are excluded from consideration, in view of the
contradictory stands taken by them, at this stage, there is more
than other sufficient evidence on record, like, the transcriptions of
the conversations, that took place in the various meetings, and also
on the Call Detail Record i.e. intercepted telephonic conversation
between the Appellant and Accused No.4-Ramesh Upadhyay.
(iii) Intercepted Telephonic Conversations
157. These telephonic conversations are dated 23 rd October 2008 at
about 11:23 am, 4:10 pm, 4:12 pm and 5:54 pm. These
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conversations refer to the news in the Times of India and Indian
Express about Malegaon bomb-blast and then Appellant telling to
Accused No.4 that "cat is out of the bag", thereby informing that
Accused No.1-Pragya Singh Thakur was found and arrested. This
conversation also reflects that Appellant was under pressure and
tension when he came to know that Accused No.1-Pragya Singh was
arrested. In this conversation, Appellant also talked about the need
for changing of his phone number and also the need of engaging the
Advocate. In the further telephonic conversation, Appellant and
Accused No.4-Ramesh Upadhyay instructed each other to be more
careful as they were under apprehension of being on radar of the
Police. NIA has also, in paragraph Nos.13 and 14 of its Report,
confirmed these facts and this post-conduct of Appellant, prima
facie, shows the guilt in his mind and his active participation in
crime.
158. One cannot, therefore, ignore these intercepted telephonic
conversations, which do not, prima facie, support the contention of
the Appellant that he was acting under the 'Covert Military
Operation' and was also working in discharge of his duties. If it was
so, he would have immediately contacted his superior officers in the
Army or, at-least, appraised the Police, who were investigating the
104 APEAL-664-16-Prasad Purohit.doc
case, about his role. At-least, he would not have any apprehension of
being arrested in the case.
159. According to the submission of learned counsel for the
Appellant, as all these telephonic talks are subsequent to Malegaon
bomb-blast, they have to be excluded from consideration because the
object of conspiracy was achieved on 29th September 2008 itself and,
hence, whatever has happened subsequent to the object being
achieved, cannot be a part of conspiracy.
160. However, in this respect, the law relating to the conspiracy,
which is laid down by the Hon'ble Apex Court in the case of Tamil
Nadu Vs. Nalini & Ors., (1999) 5 SCC 253, can be of much relevance
and one of the guiding principles laid down in the said authority is as
follows :-
"An act subsequent to the achieving of the object of
conspiracy may tend to prove that a particular
accused was party to the conspiracy. Once the object of
conspiracy has been achieved, any subsequent act,
which may be unlawful, would not make the accused a
part of the conspiracy like giving shelter to an
accused." [Emphasis Supplied]
105 APEAL-664-16-Prasad Purohit.doc
161. Here, we are not concerned with any unlawful act of the
Appellant subsequent to achieving of the object of controversy, but
his "subsequent conduct" after achieving the object of conspiracy,
which is held to be relevant by the Hon'ble Apex Court and this
conduct leads to the inference of accused being a party to the
conspiracy.
162. The law laid down in this authority of State of Tamil Nadu Vs.
Nalini & Ors. (Supra) also squarely meets the contention of learned
counsel for the Appellant that none of the absconding accused were
present in the meetings at Faridabad or Bhopal and there was no
contact between the Appellant and those Accused. In paragraph
No.6 of the Judgment of Nalini (Supra) , it is held that,
"6. It is not necessary that all conspirators should
agree to the common purpose at the same time.
They may join with the other conspirators at any
time before the consummation of the intended
objects and all are equally responsible. What part
the conspirator is to play may not be known to
everyone or the fact as to when a conspirator
joined the conspiracy and when he left."
[Emphasis Supplied]
163. As held in this authority, it is the unlawful agreement, which is
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the gravamen of the crime of conspiracy. Such agreement need not
be formal or express, but may be inherent and inferred from the
circumstances; especially, declaration, acts and conduct of the
conspirators. It is a partnership in crime and, hence, everything
said or done by any of the conspirators in execution or furtherance
of the common purpose is deemed to have been said, done or written
by each of them and this joint responsibility extends not only to
what is done by any of the conspirators present to the original
agreement, but also to collateral acts incidental to and growing outer
the original purpose.
(iv) Finding of Traces of RDX
164. The fourth incriminating circumstance alleged against the
Appellant, is that of 'ATS officers finding the traces of the RDX in
the house of the co-accused No.11-Sudhakar Chaturvedi' . As per the
contention of the Appellant, the Indian Army does not use RDX and
it is not available off the shelf and hence it was impossible for him to
get the RDX, as alleged by the prosecution, and such RDX was
planted in the house of co-accused No.11 by the ATS. It is submitted
that even NIA has accepted the fact that RDX has been planted by
ATS officer and, accordingly, discharged Accused No.15 and
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Accused No.16, who had procured and transported the RDX.
According to Appellant, therefore, this circumstance cannot be
considered against him and, hence, prima facie, there is no case
made out under Section 18 of the UAP Act.
165. In our considered opinion, both these versions of ATS and NIA
are required to be tested at the time of trial. At this stage, this Court
cannot pick-up or choose one version over the other. That is what is
said by the Hon'ble Apex Court in the case of Vinay Tyagi (Supra)
that, even at the time of trial, the Court has to consider conjointly
both the versions of the investigation conducted by two different
Agencies and then decide which one is correct and true. In this case
also, only the Trial Court, after full-fledged hearing, can decide
whether the ATS has fabricated the evidence relating to the RDX or
the investigation conducted by the ATS is correct. At this stage, one
cannot do so.
166. Moreover, even if we exclude these two circumstances from
our consideration, viz. Statements of PW-55, PW-79 and PW-112 and
the finding of RDX traces in the house of co-accused No.11, in our
considered opinion, there is, prima facie, more than sufficient
material on record against the Appellant so as to hold that there are
108 APEAL-664-16-Prasad Purohit.doc
reasonable grounds for believing that accusations made against the
Appellant are prima facie true and that appears to be the reason as
to why NIA has also not given a 'clean-chit' to the Appellant, though
it has done so in respect of some of the other co-accused, like,
Accused Nos.1, 2, 3, 12, 15 and 16.
Applicability of Charges under UAP Act
167. Next submission of learned counsel for the Appellant is that,
there is no prima facie case against the Appellant to attract any of
the offences punishable under UAP Act. It is submitted that, as
regards the charge under Sections 15 and 16 of the UAP Act, Section
15 only defines a 'terrorist act' and is, thus, not punishable as an
offence; whereas, Section 16 provides 'punishment to the
Accused, who commits a terrorist act'. It is submitted that,
according to the prosecution case also, the present Appellant has not
committed the terrorist act of planting the bomb or causing the
blast. As per the case of the prosecution, the actual bomb-blast was
committed by two absconding accused, namely, Ramji alias
Ramchandra Kalsangra and Sandip Dange. Therefore, when Section
16 punishes the actual commission of the terrorist act by the
Accused and as Appellant has actually not committed the said act,
109 APEAL-664-16-Prasad Purohit.doc
he cannot be held, in any way, liable for the punishment, either the
death or life imprisonment, provided for such offence.
168. Learned counsel for the Appellant has further submitted that
for application of Section 17 of the UAP Act, as it was then
prevailing, there must be evidence to show that Accused has raised
fund for the purpose of committing a terrorist act. In the instant
case, it is submitted that there is no evidence to prove prima facie
also that Accused has received any money for the purpose of
commission of terrorist act i.e. Malegaon bomb-blast. At the most,
the allegation against the Appellant is that he has collected the
funds for the purpose of "unlawful activities", like, for the
organization of 'Abhinav Bharat'. The said organization was a
registered Charitable Trust and, therefore, prima facie also, charge
under Section 17 of the UAP Act is not attracted.
169. Further, it is submitted by learned counsel for the Appellant
that, to attract the charge under Section 20 of the UAP Act, a person
has to be a member of the "terrorist gang" or a "terrorist
organization", which is involved in "terrorist act". In the instant
case, it is submitted that, nowhere it is the case of prosecution that
'Abhinav Bharat' was a terrorist gang or a terrorist organization.
110 APEAL-664-16-Prasad Purohit.doc
Thus, according to learned counsel for the Appellant, there is no
prima facie material or evidence to attract any of the charges
levelled against the Appellant for the offences punishable under UAP
Act.
170. However, in our considered opinion, this submission of learned
counsel for the Appellant cannot be accepted at this stage, as Section
18 of the UAP Act provides punishment even for the person who
conspires or attempts to commit, or advocates, abets, advises or
incites, directs or knowingly facilitates the commission of a terrorist
act or any act preparatory to the commission of a terrorist act. The
term 'terrorist act' is defined in Section 15 of UAP Act as follows :-
"15. Terrorist act - [1] Whoever does any act with intent to
threaten or likely to threaten the unity, integrity,
security, economic security or sovereignty of India or
with intent to strike terror or likely to strike terror in
the people or any section of the people in India or in
any foreign country -
(a) by using bombs, dynamite or other explosive
substances or inflammable substances or
firearms or other lethal weapons or
poisonous or noxious gases or other
chemicals or by any other substances
(whether biological radioactive, nuclear or
otherwise) of a hazardous nature or by any
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other means of whatever nature to cause or
likely to cause -
(i) death of, or injuries to, any person
or persons; or
(ii) loss of, or damage to, or destruction
of, property; or
(iii) disruption of any supplies or
services essential to the life of the
community in India or in any
foreign country; or
(iiia) damage to, the monetary
stability of India by way of
production or smuggling or
circulation of high quality
counterfeit Indian paper
currency, coin or of any
other material; or
(iv) damage or destruction of any property
in India or in a foreign country used or
intended to be used for the defence of
India or in connection with any other
purposes of the Government of India,
any State Government or any of their
agencies; or
(b) overawes by means of criminal force or the
show of criminal force or attempts to do so or
causes death of any public functionary or
attempts to cause death of any public
functionary; or
(c) detains, kidnaps or abducts any person and
threatens to kill or injure such person or does
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any other act in order to compel the
Government of India, any State Government
or the Government of a foreign country or an
international or inter-governmental
organisation or any other person to do or
abstain from doing any act; or commits a
terrorist act."
171. If one has regard to the nature of the allegations against the
Appellant and other accused of using the bomb, or, explosive
substance, with intent to threaten, or, likely to threaten, the unity,
integrity, security or sovereignty of India and with intent to strike
terror or likely to strike terror in the people or particular
community of the people in India, like, the Muslim community, it
falls within the definition of 'terrorist act'. Therefore, at this prima
facie stage, the argument advanced by learned counsel for the
Appellant that the provisions of UAP Act are not attracted, cannot
be accepted. Moreover, charge in the case is also of conspiracy,
punishable under Section 120B IPC and to attract the said charge,
as held in the above-said authority of State of Tamil Nadu Vs. Nalini
(Supra), in paragraph No.5, a crime is committed by each and every
one, who joins the agreement.
172. The above pieces of evidence, therefore, on which prosecution
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is relying, in our opinion, are sufficient, at this stage, to make out
prima facie case against the Appellant.
173. The next consideration for deciding the application for bail is
'the nature and gravity of the charge' . In the instant case, it is
needless to state that the charge levelled against the Appellant is
serious and grave one. It is of waging war against the integrity and
unity of the State and, that too, by the violent means like exploding
the bomb, so as to create terror in the minds of the people. The
bomb-blast has caused not only the loss of lives of 6 persons, but also
more than 100 people were injured. The offences alleged against the
Appellant are, therefore, punishable under Sections 302, 307, 326,
324, 427, 153A and 120B of IPC, r/w. Sections 3, 4, 5 and 6 of ES
Act r/w. Sections 3, 5 and 25 of the Arms Act. Therefore, even if the
offences under the MCOC Act are excluded from consideration, the
gravity of the charges levelled against the Appellant cannot be
ignored.
174. The third criteria is of 'severity of the punishment in the event
of conviction'. Needless to state, that the punishment to which
Appellant will be liable, on conviction, may extend to death or
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imprisonment for life and other serious forms of the imprisonment.
175. As regards the other parameters to be considered while
deciding the application of bail, like, 'reasonable apprehension of the
witnesses being tampered with and danger, of-course, of justice
being thwarted by grant of bail', needless to state that, already some
of the witnesses have retracted their statements made before the
ATS. Therefore, this apprehension also cannot be called as
'unreasonable' or 'groundless'.
176. Therefore, in case of such serious offence, the Hon'ble Apex
Court itself has in the case of Kalyan Chandra Sarkar Vs. Rajesh
Ranjan @ Pappu Yadav and Anr. (Supra) , held that, the discretion is
to be exercised in a judicious manner and not as a matter of course
and there is a need to indicate in such order, the reasons for prima
facie concluding as to why the bail was being granted; particularly
where the accused is charged of having committed a serious offence.
In our considered opinion, no such grounds are made out for
granting the bail in such serious offences, which are levelled against
the Appellant.
177. Lastly, learned counsel for the Appellant has sought bail on the
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ground of delay caused in the trial, by placing reliance on the
following authorities :-
(a) Shaheen Welfare Association Vs. Union of India &
Ors., (1996) 2 SCC 616
(b) Giani Pratap Singh Vs. State of Rajasthan & Anr.,
1995 SCC (Cri) 992
(c) Sanghian Pandian Rajkumar Vs. Central Bureau
of Investigation & Anr., a/w. connected matter,
(2014) 12 SCC 23
(d) Sanjay Chandra Vs. Central Bureau of
Investigation, (2012) 1 SCC 40
(e) Thana Singh Vs. Central Bureau of Narcotics,
(2013) 2 SCC 603
(f) Izharul Haq Abdul Hamid Shaikh & Anr. Vs. State
of Gujarat, (2009) 5 SCC 283
(g) Supreme Court Legal Aid Committee,
representing Under-Trial Prisoners Vs. Union of
India & Ors., (1994) 6 SCC 731
(h) State of Kerala Vs. Raneef, (2011) 1 SCC 784
(i) Sandip Kalangutkar Vs. State, represented by
Officer-in-Charge, Calangute Police Statem,
Calangute, Goa & Anr., 2012 SCC OnLine Bom
(j) Akhtari BI (Smt.) Vs. State of M.P., (2001) 4 SCC
(k) Dipak Shubhashchandra Mehta Vs. Central
Bureau of Investigation & Anr., (2012) 4 SCC
(l) State of Punjab Vs. Ajaib Singh, (1995) 2 SCC 486
178. It is submitted that the delay caused in the instant case is
substantial as it is of more than eight years and for the said delay,
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no fault can be attributed to the Appellant. Therefore, the Appellant
needs to be released on bail. However, in our considered opinion,
mere delay in the trial cannot be a ground for releasing the
Appellant on bail; especially when the delay was on account of the
factors, which were not in the hands of the prosecution or, may be,
even the accused. Record shows that since 2011 to July 2015,
'Record and Proceedings' in this case was in the Hon'ble Apex Court
in the Appeals preferred by Appellant and co-accused. Therefore,
NIA could not proceed with further investigation.
179. It may also be stated that, all the authorities relied upon by
learned counsel for Appellant deal with particular facts of the case
placed before the Court. For example, in the case of Giani Pratap
Singh (Supra), Accused was in Jail for more than 4 years and 8
months, whereas, minimum sentence provided for the offence was
only 5 years. Similarly, in the case of Thanu Singh (Supra), Accused
was in Jail for more than 12 years for the offence under Section 8
r/w. Section 29 of NDPS Act and the trial was not likely to be
concluded in the near future. In such circumstances, Accused was
released on bail. Thus, each case depends on its own facts. In the
present case, the offences charged against Accused are serious and
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grave one, inviting even punishment of death or life imprisonment.
Moreover, the trial is also likely to be commenced as the Special
Court is already established for the said purpose, as per the order
passed by the Hon'ble Supreme Court.
180. In our considered opinion, therefore, the Trial Court has
considered and dealt with all these aspects in detail and effectively
while rejecting the Appellant's application for bail. The discretion
exercised by the Trial Court, therefore, does not call for any
interference, as, independently also, when we consider the
application of the Appellant for bail, we find that he is not entitled to
be released on bail. Hence, this Appeal stands dismissed.
181. At this stage, it is clarified that whatever observations made
here-in-above about the merits of the case, they are made for the
purpose of deciding this Appeal only and Trial Court is not to be
influenced by them in any way.
182. In view of dismissal of the Appeal, Criminal Application
No.1448 of 2016 no more survives and, hence, stands disposed off.
[DR. SHALINI PHANSALKAR-JOSHI, J.] [RANJIT MORE, J.]
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