Bombay High Court
Nisar Ahmed Sayyed 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.545 OF 2016
Pragya Singh Chandrapalsingh Thakur ]
alias Sadhvi alias Swami Purnchetanand ]
Giri, D/o. Shri. Chandrapal Singh Thakur, ]
Aged about 44 Years, Occ.: Sadhwi, ]
R/at : C/o. Shri. Soman Jha, 19, Ganga ]
Sagar Row House, Opp. Saroli Bus Stand, ]
Poona Kumbharia Road, Surat, Gujarat. ]
(At present lodged in Bhopal Central Jail ]
at Bhopal in Case No.458/2011, pending ] .... Appellant /
before the Sessions Court, Devas, M.P.) ] (Org. Accused No.1)
Versus
State of Maharashtra, ]
Through National Investigating Agency (NIA), ]
New Delhi. ] .... Respondent
ALONG WITH
CRIMINAL APPLICATION NO.1440 OF 2016
AND
CRIMINAL APPLICATION NO.71 OF 2017
IN
CRIMINAL APPEAL NO.545 OF 2016
Nisar Ahmed Haji Sayed Bilal, ]
Age : 64 Years, Occ.: Retired, ]
Permanently R/at 552, Islampura, ] .... Intervenor /
Galli No.12, Malegaon, Nashik-423203. ] (Applicant)
In the matter between
Pragya Singh Chandrapalsingh Thakur ]
alias Sadhvi alias Swami Purnchetanand ]
Giri, D/o. Shri. Chandrapal Singh Thakur, ]
Aged about 44 Years, Occ.: Sadhwi, ]
R/at : C/o. Shri. Soman Jha, 19, Ganga ]
Sagar Row House, Opp. Saroli Bus Stand, ]
Poona Kumbharia Road, Surat, Gujarat. ]
1 APEAL-545-16-Pragya Singh.doc
(At present lodged in Bhopal Central Jail ]
at Bhopal in Case No.458/2011, pending ] .... Appellant /
before the Sessions Court, Devas, M.P.) ] (Org. Accused No.1)
Versus
State of Maharashtra, ]
Through National Investigating Agency (NIA), ]
New Delhi. ] .... Respondent
Mr. Avinash Gupta, Senior Advocate, i/by Mr. J.P. Mishra, a/w.
Mr. Shyam Dewani, Mr. Prashant Muggu, Ms. Akanksha Helaskar,
Mr. Aakash Gupta, Mr. V.S. Uberoi and Mr. Sujender Yadav, i/by
M/s. Dewani Associates, for the Appellant-Original Accused No.1.
Mr. Anil C. Singh, A.S.G., a/w. Mr. S.D. Patil and Ms. Indrayani
Deshmukh, for the Respondent-NIA.
Mr. J.P. Yagnik, A.P.P., for State of Maharashtra.
Mr. B.A. Desai, Senior Counsel, a/w. Mr. Abdul Wahab Khan,
Mr. Sharif Shaikh, Mr. Wahab Khan, Mr. Ansar Tamboli, Ms. Naina
Shaikh, Mr. Shahid Ansari and Mr. Afzal, for the Intervenor-
Applicant in Criminal Application Nos.1440 of 2016 and 71 of 2017.
CORAM : RANJIT MORE &
DR. SHALINI PHANSALKAR-JOSHI, J.J.
RESERVED ON : 20 TH FEBRUARY, 2017.
PRONOUNCED ON : 25 TH APRIL, 2017.
2 APEAL-545-16-Pragya Singh.doc
P.C. :
1. This is an Appeal preferred by original Accused No.1-
Pragyasingh Thakur 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 28 th June 2016 passed by the
Special Court, constituted under MCOC Act and NIA Act at Mumbai,
thereby rejecting her application for bail (Exhibit No.3021).
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
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 :-
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. 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.
4. 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.
5. During the course of investigation, the exhibits collected from
the place 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.
4 APEAL-545-16-Pragya Singh.doc
6. 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
investigation and the case was registered as C.R. No.18/2008. 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.
7. 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
5 APEAL-545-16-Pragya Singh.doc
was further transpired that Appellant is the registered owner of the
said vehicle. Accordingly, Appellant was arrested on 23rd October
2008 at Mumbai along with Accused No.2-Shivnarayan Kalsangra
and Accused No.3-Shyam Sahu.
8. As per the case of the ATS, as disclosed in the report under
Section 173 of the Code filed in the Court, 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 9th February 2007. Accused No.4-Ramesh
Upadhyay, Accused No.10-Swami Amrutanand alias Sudhakar
Dwivedi alias Dayanand Pandey 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, Accused No.9-Prasad Purohit had
collected huge amount of funds to the tune of Rs.21,00,000/- for
6 APEAL-545-16-Pragya Singh.doc
himself and his 'Abhinav Bharat Organization' to promote his
fundamentalist ideology. The amount so collected was given to
Accused No.6-Ajay alias Raja Rahirkar, who was 'Treasurer' of
'Abhinav Bharat', who, in turn, disbursed the said amount to other
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.
9. As per the 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 and in the said meeting,
Appellant undertook the responsibility of providing her motor-cycle
and manpower to cause bomb-blast; whereas, Accused No.9-Prasad
Purohit took the responsibility of providing explosives, in order to
take revenge of 'Jihadi' activities by Muslim community.
10. It is the case of ATS that Appellant and co-accused had entered
into criminal conspiracy between January 2008 to 23 rd 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
7 APEAL-545-16-Pragya Singh.doc
Government. Accused No.9-Prasad Purohit 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-
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.
11. 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 by using 'LML Freedom Motor-Cycle' owned by
the Appellant. The case of the ATS is further to the effect that the
absconding accused Ramji alias Ramchandra Kalsangra and Sandip
Dange are the men of the Appellant and they had acted at her
instance. Appellant provided her own motor-cycle for the said
explosion and, thus, as per the case of ATS, Appellant is 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.
8 APEAL-545-16-Pragya Singh.doc
12. After the Charge-Sheet to this effect was filed by ATS on 20 th
January 2009 in the Special Court, Government of India, vide its
order dated 1st April 2011, transferred the investigation of the case
to 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.
13. Meanwhile, Accused No.9-Prasad Purohit 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 present
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 Criminal 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 19 th July
2010 and, accordingly, the impugned order of the Special Court
dated 31st 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, Appellant preferred fresh application for bail, which came to
be rejected by the Special Court vide its order dated 25 th September
9 APEAL-545-16-Pragya Singh.doc
2012. The Criminal Appeal No.1305 of 2013 preferred by her
against the said order also came to be dismissed by this Court vide
order dated 4th April 2014.
14. Meanwhile, the order passed by this Court in Criminal Appeal
No.866 of 2009, restoring the application of the provisions of MCOC
Act, came to be challenged by the present Appellant and Accused
No.9-Prasad Purohit in Appeal before the Hon'ble Apex Court. The
Hon'ble Apex Court, by its common order dated 15 th 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-Rakesh Dhawde. The Hon'ble Apex Court,
accordingly, while disposing of these Appeals, restored the Bail
Application of Accused No.9-Prasad Purohit, 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. In the said Judgment, the Hon'ble Apex
Court further held that, the Appellant is also entitled for the same
relief of consideration of her Bail Application on its own merits,
excluding the provisions of MCOC Act.
10 APEAL-545-16-Pragya Singh.doc
15. After this decision of the Hon'ble Apex Court dated 15 th April
2015, the Appellant filed fresh application for bail at Exhibit-2400
on 21st September 2015 before the Special Court. That Bail
Application was rejected by the Special Court on 7th November 2015.
Appellant had not preferred any Appeal against the said order.
16. Subsequent thereto, on 13th May 2016, NIA has filed
Supplementary Report, under Section 173(8) of the Code, informing
that during the course of further investigation, it was transpired
that Appellant has no concern with the offence and, accordingly, she
was exonerated of all the charges levelled against her by ATS, as no
case was made out against her. NIA also dropped the charges of
MCOC Act against all the accused persons, thereby concluding that
no offence under MCOC Act is attracted in this case.
17. Treating this report of NIA as a change in the circumstance,
Appellant filed this fresh application for bail before the Special
Court, at Exhibit-3021, contending, inter alia, that when
Investigating Agency like NIA itself has concluded that she has no
concern with the offence and, accordingly, she is exonerated from
all the charges, prima facie, there is no case against her and hence
11 APEAL-545-16-Pragya Singh.doc
she becomes entitled to be released on bail. It is submitted by her
that once it is held by NIA that charges under MCOC Act are not
attracted; in other words, those charges are dropped, then the
confessional statements of Accused Nos.7, 10 and 12 also cannot be
considered so as to implicate the Appellant with the alleged offences.
18. Further it is submitted that PW-79 and PW-112, on whose
statements the Appellant was implicated by ATS, have also
retracted their statements made before ATS, in their fresh
statements recorded by NIA and also recorded under Section 164(5)
of the Code before the Metropolitan Magistrate at Delhi. Next it is
submitted that even PW-55, on whose statement Appellant was
implicated, has also made complaint regarding harassment and
torture at the hands of ATS to the Human Rights Commission.
Similarly, PW-22 has also made similar complaint of torture and
harassment by ATS Officers before the Judicial Magistrate, Indore.
In such circumstances, it is submitted by Appellant that the
statements of these witnesses, on the basis of which the Appellant
was implicated by ATS, cannot be relied upon to prove prima facie
case against her.
19. Lastly, it is submitted by the Appellant that NIA has confirmed
12 APEAL-545-16-Pragya Singh.doc
that the motor-cycle involved in the bomb-blast was not in her
possession. It was used by the absconding accused Ramji alias
Ramchandra Kalsangra since two years prior to the incident and in
such circumstances, there is no reason or ground to hold that she
was, in any way, concerned with the bomb-blast.
20. On this application of the Appellant seeking fresh bail in view
of the change in circumstance, the learned Special P.P. for NIA has
given before the Special Court 'no objection' for release of the
Appellant on bail, having regard to the report filed by NIA
exonerating her of all the charges.
21. In this Appeal also, the learned ASG Shri. Anil Singh has
continued the said stand of NIA by conceding that prosecution has
no objection for release of Appellant on bail. According to learned
ASG, NIA has already dropped the charges under MCOC Act,
considering that there was no sufficient material on record to apply
those charges. It is submitted that, Accused No.10-Swami
Amrutanand Devtirth has retracted the confessional statement
made before the Metropolitan Magistrate, Mumbai, on 25th
November 2008. Similarly, Accused No.7-Rakesh Dhawde has also
retracted his confessional statement made before the Metropolitan
13 APEAL-545-16-Pragya Singh.doc
Magistrate, Mumbai, on 6th December 2008. He has also denied the
contents of the statement made before the ATS officer relating to
supply of RDX and bomb for the Malegaon blast. Thus, it is
submitted that these confessional statements, which are already
retracted, rules out the applicability of MCOC Act and, accordingly,
NIA has dropped those charges.
22. It is further submitted by learned ASG that, though it was
revealed during the course of investigation by NIA also, that 'LML
Freedom Motor-Cycle No.GJ-05-BR-1920' used in the commission of
the bomb-blast at Malegaon stands registered in the name of the
Appellant, being purchased by her, the material collected during the
course of investigation revealed that the said motor-cycle was in
possession of the absconding accused - Ramji @ Ramchandra
Kalsangra and was being used by him well before the blast. Reliance
is placed on the statements of PW-21, PW-23, PW-30 and PW-32, as
recorded by the ATS officer, to submit that it was absconding
accused - Ramji @ Ramchandra Kalsangra, who was in possession of
the said motor-cycle.
23. Thus, as per the written submissions filed on behalf of NIA, it is
14 APEAL-545-16-Pragya Singh.doc
submitted that not only Accused No.10-Swami Amrutanand
Devtirth has retracted his statement recorded by ATS officer, but
even PW-79, PW-22 and PW-112 have also retracted their
statements, which were initially made before the ATS officer. Thus,
according to NIA, there is no incriminating material against the
Appellant and as a result, NIA has given clean-chit to not only the
Appellant but also to some other co-accused, namely, Accused Nos.2,
3, 12, 15 and 16, as no sufficient evidence was found against them.
Thus, it is submitted on behalf of NIA by the learned ASG that
prosecution has no objection for granting bail to the Appellant, as
she is exonerated from all the charges levelled against her.
24. The application of the Appellant for bail is, however, strongly
resisted by the Intervenor before the Special Court and this Court
also. It may be stated that the Intervenor in the case is the father of
the deceased, who had died in the bomb-blast at Malegaon. The
Special Court has, vide its detail order dated 17 th June 2016,
allowed the Intervention Application, considering that as
prosecution is giving its 'no objection' for release of the Appellant on
bail, practically, there was no one opposing the Bail Application and,
hence, in order to have fair hearing on the point of Bail Application,
15 APEAL-545-16-Pragya Singh.doc
it would be appropriate to give an opportunity of hearing to the
Intervenor, who was the real aggrieved person, as his son has
succumbed to death in the bomb-blast. In this Appeal also, on the
same grounds, we have also allowed the Intervention Application
and heard learned Senior Counsel for the Intervenor Shri. B.A.
Desai, who has strongly resisted the request of the Appellant to be
released on bail.
25. According to learned Senior Counsel for Intervenor, prima
facie, there is sufficient material on record implicating the Appellant
even at this stage, as the report of the investigation carried out by
ATS has to be read conjointly with the Investigation Report
submitted by NIA. It is submitted by him that, when earlier Bail
Application was filed by the Appellant before the Special Court
bearing Exhibit-2400, the Special P.P. on behalf of NIA has strongly
resisted the said Bail Application. Since then, there is no substantial
change in the circumstances and despite that, this time, NIA has
given 'no objection' for allowing Appellant's Bail Application. It is
urged that under the garb of carrying out further investigation, NIA
has conducted re-investigation and, that too, not of the offence but of
the investigation made by the ATS. As this re-investigation is made
16 APEAL-545-16-Pragya Singh.doc
by NIA without the order of the higher courts, that investigation
itself is illegal. According to learned counsel for the Intervenor, the
investigation conducted by NIA is unfair and tainted. NIA has no
power to question the reliability of the investigation conducted by
the ATS. According to learned counsel for the Intervenor, both, the
Trial Court and this Court, have already held, while deciding
previous Bail Applications of the Appellant, that, there is sufficient
material on record to show involvement of the Appellant in
commission of the offences. It is held that, Appellant is the principal
conspirator, as having supplied not only the motor-cycle but also the
manpower for causing the bomb-blast. Hence, according to learned
Senior Counsel for Intervenor, merely because NIA has dropped the
charges against Appellant, she cannot be released on bail; especially
having regard to the gravity and seriousness of the offence, and the
apprehension of Appellant further tampering the prosecution
witnesses and thereby thwarting the course of justice.
26. The Special Court, after hearing at length learned counsel for
the Appellant, learned counsel for the Intervenor and learned
Special P.P., was pleased to reject the application of the Appellant
for bail by the impugned order holding that the investigation
17 APEAL-545-16-Pragya Singh.doc
conducted by ATS, implicating the Appellant, cannot be wiped out
totally from the record. It was held that the report of the
investigation done by NIA is required to be considered conjointly
with the report of investigation made by ATS and if it is done so,
then, according to the Special Court, no case was made out for
releasing the Appellant on bail.
27. This order of the Special Court is challenged in this Appeal by
learned counsel for the Appellant; whereas, supported by learned
counsel for the Intervenor. Their arguments were heard at length by
this Court. This Court has also perused the written submissions filed
on record by them, on the conclusion of oral submissions. Learned
Additional Solicitor General has, as stated above, conceded in this
Court also that, in view of the report of the NIA exonerating the
Appellant of all the charges, prosecution has no objection to allow
her application for bail.
Applicability of Section 43-D(5) of the UAP Act
28. 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, in view of two
18 APEAL-545-16-Pragya Singh.doc
contradictory Reports; one submitted by ATS and another by NIA,
an opinion that there are reasonable grounds for believing that the
accusation against the Appellant is prima facie true, cannot be
formed. Therefore, it is submitted that, bar under sub-section (5) of
Section 43-D of UAP Act would not be attracted in the present case.
In the alternate, it is submitted that the said sub-section (5) of
Section 43-D of UAP Act cannot have any retrospective operation. It
is submitted that, though the UAP Act was promulgated on 30 th
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").
29. In this case, it is submitted that the incident took place on 29 th
September 2008 and the Appellant was arrested on 23rd August
2008. The first Bail Application 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 permitted her to file fresh
application. It may be true that thereafter again it was rejected, but
19 APEAL-545-16-Pragya Singh.doc
in view of change in circumstances, she is entitled to file fresh
application for bail. Hence, as her plea of bail is yet pending, 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.
30. 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
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.
20 APEAL-545-16-Pragya Singh.doc
31. 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.
32. 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.
33. 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.
34. Further, he has placed reliance on the decision of the Hon'ble
Supreme Court in the case of Sukhdev Singh Vs. State of Haryana,
21 APEAL-545-16-Pragya Singh.doc
(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".
35. 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.
36. Per contra, according to learned counsel for Intervenor, 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
22 APEAL-545-16-Pragya Singh.doc
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
her substantive right being affected or curtailed on account of
amendment in Section 43-D(5) of the UAP Act.
37. 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 that the amendments
in the provisions relating to custody and bail are of procedural
nature and can have retrospective effect.
38. Learned counsel for the Intervenor has also placed reliance on
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
23 APEAL-545-16-Pragya Singh.doc
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
counsel for Intervenor, there is no substance in the contention
raised by learned counsel for Appellant on this score.
39. 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.
40. 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
24 APEAL-545-16-Pragya Singh.doc
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.
(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.
25 APEAL-545-16-Pragya Singh.doc
(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."
41. 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]
42. 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.
26 APEAL-545-16-Pragya Singh.doc
43. 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;
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.
27 APEAL-545-16-Pragya Singh.doc
(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."
44. 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,
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.
28 APEAL-545-16-Pragya Singh.doc
45. 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
bail. Hence, this Amendment cannot be considered as substantively
affecting the right of Appellant.
46. Moreover, in this case, admittedly, the offences alleged against
the Appellant are non-bailable and punishable with imprisonment
for life or death, as she 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
29 APEAL-545-16-Pragya Singh.doc
concluded that Appellant cannot claim to have any "vested right" to
be released on bail under the provisions of the Code.
47. 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
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.
48. In the instant case, therefore, it has to be held that, as the Bail
30 APEAL-545-16-Pragya Singh.doc
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 Accused 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.
Applicability of MCOCA Provisions
49. 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-
31 APEAL-545-16-Pragya Singh.doc
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.
50. 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
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.
51. 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
32 APEAL-545-16-Pragya Singh.doc
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.
52. 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
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
33 APEAL-545-16-Pragya Singh.doc
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]
53. The Appellant herein was also, accordingly, held entitled for
similar relief of consideration of her Bail Application on merits.
54. 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
34 APEAL-545-16-Pragya Singh.doc
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,
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.
35 APEAL-545-16-Pragya Singh.doc
55. 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'?
56. 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
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
36 APEAL-545-16-Pragya Singh.doc
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.
57. 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."
58. 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
37 APEAL-545-16-Pragya Singh.doc
confessional statements of co-accused need to be considered while
deciding this application for bail.
59. 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.
60. 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
38 APEAL-545-16-Pragya Singh.doc
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.
61. 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.
Validity of Sanction for Prosecution
62. Before adverting to the facts of this case, it is necessary to
consider one more leg of the argument advanced by learned counsel
39 APEAL-545-16-Pragya Singh.doc
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.
63. 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
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, it was
followed and, moreover, it cannot be the point for argument at this
stage.
64. In order to properly appreciate the submissions advanced at
bar by learned counsel for the parties, in our opinion, it would be
40 APEAL-545-16-Pragya Singh.doc
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.
65. 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
41 APEAL-545-16-Pragya Singh.doc
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."
66. 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);
(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.
42 APEAL-545-16-Pragya Singh.doc
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."
67. It may be stated that bracketed portion in these Rules is
introduced by Government Notification dated 31st March 2009.
68. 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
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.
43 APEAL-545-16-Pragya Singh.doc
69. 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
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.
70. In our considered opinion, therefore, the absence of the words,
44 APEAL-545-16-Pragya Singh.doc
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
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.
71. 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
45 APEAL-545-16-Pragya Singh.doc
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.
72. As to the reliance placed by learned counsel for Appellant on
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
46 APEAL-545-16-Pragya Singh.doc
purpose of producing such report by the reviewing authority,
learned Addl. Government Advocate for the State also responded in
the negative.
73. 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.
74. 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
47 APEAL-545-16-Pragya Singh.doc
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.
75. 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
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.
76. Learned counsel for the Appellant has in this respect also
placed reliance on another decision of the Division Bench of this
48 APEAL-545-16-Pragya Singh.doc
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.
77. 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.
78. According to learned counsel for the Appellant, the objection to
'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,
49 APEAL-545-16-Pragya Singh.doc
"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."
79. 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
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.
50 APEAL-545-16-Pragya Singh.doc
80. 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
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."
81. 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,
51 APEAL-545-16-Pragya Singh.doc
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 :-
"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
52 APEAL-545-16-Pragya Singh.doc
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
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]
82. 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
53 APEAL-545-16-Pragya Singh.doc
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
83. At this stage, it may be stated that this Bail Petition has
checkered history of litigation. The very first Bail Application
preferred by the Appellant was under Section 167(2) of the Code,
which came to be rejected upto Hon'ble Supreme Court. Thereafter,
the Appellant has preferred two applications for bail on merits; out
of which, one filed at Exhibit-993 came to be rejected on 25 th
September 2012 by the Special Court and Criminal Appeal No.1305
of 2013, preferred against the same, also came to be dismissed on 4 th
April 2014 by this Court. Her second application for bail filed at
Exhibit-2400 also came to be rejected on 21 st September 2015 by
the Special Court, against which she has not preferred any Appeal to
this Court. Her application for bail on medical ground is also rejected
by the Special Court.
54 APEAL-545-16-Pragya Singh.doc
Change in Circumstances
84. Now, for maintainability of this fresh application for bail, the
entire reliance of the Appellant, as stated above, is on the 'clean-chit'
given to her by the NIA, which has carried out further investigation,
under Section 173(8) of the Code. In its investigation, NIA has re-
recorded the statements of some of the witnesses. Some part of the
investigation done by ATS is accepted by NIA; whereas, some part of
the investigation done by ATS is not relied upon by NIA. NIA has not
only exonerated the Appellant, but also Accused Nos.2, 3, 12, 15 and
16, from all the charges. NIA has also dropped the MCOCA charge
against all the Accused. Thus, it is clear that NIA has found itself to
be not in agreement on certain points with the investigation done by
ATS.
85. The question for consideration is whether this report can be
said to be change in the circumstances so as to entitle the Appellant
to apply for bail afresh. The Apex Court in Babu Singh v. State of UP
[1978 SCC(Cri) 133] held that order refusing application for bail
does not necessarily preclude another on later occasion. It was
further held that if there is more material, further development and
different considerations, the second consideration at later stage is
always permissible.
55 APEAL-545-16-Pragya Singh.doc
86. In our considered view, these observations of the Apex Court
are squarely applicable to the facts of the present case. Mr. Gupta,
the learned Senior Counsel for the Appellant also invited our
attention to the judgment and order dated 9th June 2016 passed in
Criminal Appeal No. 138 of 2016. This appeal was filed by co-
accused Prasad Purohit. In the said order, this Court observed that
charge-sheet filed by the NIA is material development and is to be
termed as material change in circumstances and accordingly
directed the special Court to deal with the application of accused
Prasad Purohit for bail without being influenced by the observations
made in its earlier order of rejection of bail application. .
87. In the light of decision of the Apex Court in Babu Sing (supra)
and observations of this Court in Criminal Appeal No. 138 of 2016,
we find ourselves unable to agree with the submission of Mr. Desai,
the learned Senior Counsel for the Intervenor that there is no
change in the the circumstances and we hold that the present
application of the Appellant is maintainable in view of the change in
the circumstances, namely, filing of report by NIA under section
173(8) of the Code, under which Appellant is exonerated.
56 APEAL-545-16-Pragya Singh.doc
Re-investigation / Further Investigation Carried Out by NIA
88. 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 :
"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
57 APEAL-545-16-Pragya Singh.doc
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]
89. 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
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
58 APEAL-545-16-Pragya Singh.doc
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.
90. 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.
91. As regards the Appellant, as stated above, NIA is not in
agreement with the conclusion drawn by ATS and it has completely
exonerated the Appellant from all the charges. Hence, the necessary
question arising for consideration is, 'as to the investigation of
which Investigating Agency is to be accepted or relied upon for
deciding the present Bail Application of the Appellant?' The answer
to this question need not detain us any more, as it is clearly found in
the above-said landmark decision of the Hon'ble Apex Court in the
59 APEAL-545-16-Pragya Singh.doc
case of Vinay Tyagi Vs. Irshad Ali alias Deepak and Ors., (2013) 5
SCC 762. In this reported authority, the Hon'ble Apex Court was
pleased to hold, in paragraph No.46, 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."
[Emphasis Supplied]
92. 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
60 APEAL-545-16-Pragya Singh.doc
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]
93. 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.
94. 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
61 APEAL-545-16-Pragya Singh.doc
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
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.
62 APEAL-545-16-Pragya Singh.doc
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
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 :
63 APEAL-545-16-Pragya Singh.doc
(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.
(c) 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]."
95. Thus, as the Hon'ble Apex Court has directed the Special Court
to consider the applications of the Appellant and other co-accused
Prasad Purohit on merits, keeping in mind the observations made in
paragraph Nos.96 and 97 of the Judgment, as referred above, this
Court has now to consider the first and foremost consideration as to
'whether there is any prima facie or reasonable ground to believe
that the Appellant has committed the offence'.
96. 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
64 APEAL-545-16-Pragya Singh.doc
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
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.
97. According to the learned Counsel for the Appellant,
Appellant's application for bail is also required to be decided as per
65 APEAL-545-16-Pragya Singh.doc
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
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
66 APEAL-545-16-Pragya Singh.doc
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........................"
98. In the light of decision of the Apex Court in Tyagi's case
(supra) and Ranjitsingh's case (supra), therefore, we have to
consider Appellant's bail application.
Prima Facie Case Against Appellant
99. The ATS has implicated the Appellant in the subject crime,
67 APEAL-545-16-Pragya Singh.doc
firstly, on the allegation of providing motorcycle to absconding
accused Ramji, which motorcycle was used for planting bombs and
causing bomb blast and, secondly, for her participation in Bhopal
meetings in which conspiracy to strike terror by exploding bomb in
Malegaon was hatched.
100. It is alleged by ATS that, 'LML Freedom Motor-Cycle', bearing
Registration No.MH-15-P-4572, was found at the spot of the incident
in a severely damaged condition. According to prosecution, number
"MH-15-P-4572" was a fake number. The engine number as also the
chassis number was also not visible. Hence, the motorcycle was
referred to the FSL Nasik for determining its engine and chassis
numbers. As per the report of FSL Nasik dated 7 th October 2008, it
was not possible to find out the chassis number and even the engine
number could not be determined with certainty. The report
suggested that engine number of the said vehicle could be any of the
following three numbers :
i] 50K261886
ii] 50K267686
iii] 50K261686
101. The prosecution thereafter enquired with LML Company - the
68 APEAL-545-16-Pragya Singh.doc
manufacturer, about the details of customers to whom the vehicles
with above engine numbers were sold. The manufacturer stated
that the above said three numbers did not correspond to any vehicle
manufactured by them. Further LML stated that engine numbers
that closely resemble actual vehicles manufactured by them were :
I] E55OK261886
II] E55OK261686
102. They further informed that these vehicles were sold to the
dealers at Surat and Badayu respectively. On 10 th November 2008
on the basis of statement of PW-45 the financer, the prosecution for
the first time came to know that vehicle bearing Engine
No.E55OK261886 was registered in the name of Appellant and its
number was "GJ-05 BR-1920".
103. Thus, there is enough doubt about motorcycle of which the
Appellant is the registered owner, was found at the spot of incident.
Even assuming the said motorcycle was found at the place of the
incident, the fact that Appellant is the registered owner of it by itself
cannot be sufficient in the light of material on record brought by the
prosecution itself. In this regard, reference must be made to the
statements of PW-21, PW-23 and PW-46. Statement of PW-21 was
69 APEAL-545-16-Pragya Singh.doc
recorded by the ATS on 20th October 2008. PW-21 is ITI electrical
diploma holder and has a motorcycle garage at Indore, wherein he
carries on his business of repair of motorcycle and scooter. He has
stated that absconding accused Ramji since 2 years used to bring
motorcycle No. GJ-05 BR-1920 to his garage for servicing. He has
further stated that in July 2008 also Ramji had brought the said
motorcycle.
104. The statement of PW-21 is supported by contemporaneous
record maintained by him and seized by ATS. PW-23 is the cousin of
absconding accused Ramji and his statement is recorded by ATS on
20th October 2008. PW-23 has also stated that he has seen Ramji
using the said motorcycle in question for the period of one year prior
to the date of recording of his statement. Statement of PW-23 is also
recorded under section 164 of the CR.P.C.
105. Further, there is statement of PW-46, which was recorded by
ATS on 12th November 2008. He has stated that absconding accused
Ramji initially was using black colour motorcycle of SS Honda
company. In the year 2004, he sold this motorcycle and purchased
gray colour Maruti van. Ramji used Maruti van for the period of 1
and 1/2 years and thereafter he sold it and bought one second hand
70 APEAL-545-16-Pragya Singh.doc
LLM 4 stroke golden colour scooter. He has also stated that in
Diwali of 2007 he saw golden LLM freedom scooter No. GJ-05 BR-
1920 at the house of Ramji.
106. PW-45 is a financer, through whom the said motorcycle was
got financed. His statement shows that on 4-9-2004 repayments
were made of the outstanding amount and original papers were
taken back by the Appellant.
107. Statements of PW-21, PW-23, PW-46 and PW-45, thus, do show
that the Appellant was not in possession of the said motorcycle since
much prior to the incident. The trial Court in this regard observed
that the motorcycle was being used by accused Ramji much prior to
the date of incident is the defence of the Appellant which can be
proved during trial. However, we find that this is not the defence of
the Appellant but these facts are borne out from the material
collected by the ATS itself.
108. This takes us to consider the second allegation against
Appellant of her participation in Bhopal meeting in which alleged
conspiracy to strike terror at Malegaon was hatched. In this regard,
ATS has relied upon statements of PW-55, PW-79 and PW-112.
71 APEAL-545-16-Pragya Singh.doc
109. PW-55 in his statement under section 161 and 164(5) of the
Code recorded by ATS has stated that Accused No.9-Prasad Purohit
once told him that he himself, absconding accused Ramji and
Sudhakar Chaturvedi fitted bomb in the motorcycle provided by
present Appellant. In his further examination by NIA, however, this
witness has retracted from his earlier statement recorded by the
ATS. This witness has also lodged complaint against ATS in
Maharashtra Human Right Commission that his statement under
Section 164(5) of the Code was got recorded forcibly by ATS.
110. PW-79 in his statement, recorded under Sections 161 and
164(5) of the Code by ATS, has stated that in Bhopal meeting
Accused No.9-Prasad Purohit discussed taking revenge by carrying
out bomb blasts especially in muslim populated area. He has also
stated that thereupon Appellant assured to provide men for this
purpose. NIA rexamined this witness as witness No. 182. During
his examination he stated that he did not attend any meeting of
Abhinav Bharat. He also stated that he had not visited Bhopal until
ATS took him to a Ram Mandir at Bhopal in the month of May 2009.
As such statement of this witness was also recorded under section
72 APEAL-545-16-Pragya Singh.doc
164(5) of the Code at Delhi before learned Metropolitan Magistrate
by NIA. In this statement before learned Metropolitan Magistrate,
Delhi, PW-79 (new PW-182) confirmed that he did not attend the
Bhopal meeting. This witness has also alleged torture by ATS.
111. Statement of PW-112 was recorded by ATS under section 161
as well as under section 164(5) of the Code. He has stated that he
attended Abhinav Bharat meeting at Bhopal held in the month of
April 2008. In the said meeting, Accused No.9-Prasad Purohit told
about Jihadi activities against which they have to do something and
urged to do something and told that preparation for guerrilla war is
on. At this time, the Appellant said that some people are ready for
this task. This witness also stated that PW79 was looking after
refreshment or catering arrangement in the said building. PW-112
was re-examined by NIA as Witness No.184. In this re-examination
this witness did not support his earlier statement to ATS which was
subsequently recorded under section 164(5) of the Code. He stated
that he was forced to make statement and expressed his willingness
to depose before the Magistrate. As such, his statement was
recorded by NIA under section 164(5) of the Code before learned
Metropolitan Magistrate, Patiala House, New Delhi. PW-112 (New
73 APEAL-545-16-Pragya Singh.doc
PW-184) retracted the contents of his earlier statement implicating
the Appellant.
112. At this stage, reference deserves to be made to the statement
of PW-121 and PW-150 recorded by ATS on 27.12.2008 and
17.3.2009 respectively. Theses witnesses are alleged to be present
at Bhopal meeting. Statements of these witnesses recorded by ATS
do not disclose any objectionable and incriminating material against
the Appellant.
113. Reference also deserves to be made to the statement of PW-22
recorded by ATS on 20.10.2008 under Sections 161 and 164 of the
Code. In these statements, this witness has stated about the meeting
between the Appellant and absconding accused Ramji at Ujjain on
8.10.2008 after the incident in question. In the said meeting
absconding accused Ramji is alleged to have confessed that he
committed blast at Malegaon by using the motorcycle of Appellant
and also told her to inform the police. It is however pertinent to note
that this witness (PW-22) had lodged complaint before JMFC,
Indore, on 26.11.2011 stating that he was illegally detained and
tortured by ATS to give statements. PW-22 has given statement on
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oath before the JMFC, Indore, in support of complaint filed by him
charging ATS officials with various offences.
114. Thus, in respect of above witnesses, apart from retraction and
allegation of torture, their statements give two contradictory
versions. Though there is some material on record that Appellant
was present at the Bhopal meeting, this material, however, shows
that apart from the Appellant several other persons were also
present at the said meeting. In our view, the same cannot be
considered as circumstance against the Appellant alone, excluding
the other participants, especially, now in the absence of any
objectionable and incriminating material attributed to her.
115. In above facts and circumstances, in our considered opinion, if
both the Reports of ATS and NIA are considered conjointly, so far as
the Appellant is concerned, it cannot be said that there are
reasonable grounds for believing that accusation made against her
are prima facie true. Once it is held so, then the benefit of bail cannot
be withheld to the Appellant, even if the offences alleged against her
by ATS are grave and serious one.
75 APEAL-545-16-Pragya Singh.doc
116. Moreover, the Appellant in this case is a woman. She was
arrested on 23rd October 2008 and is in custody since last more than
8 years. Medical certificate annexed to the petition and written
submissions show that appellant is suffering from breast cancer.
The medical report of the Appellant indicates that she has become
infirm and cannot even walk without support. The medical
certificate further shows that Appellant is being given treatment in
Ayurvedic hospital. In our opinion, Ayurvedic Hospital cannot give
proper treatment to the Appellant, who is suffering from cancer.
117. Taking, therefore, totality of the facts and circumstances of the
case mentioned here-in-above, we are of the considered opinion that
the Appellant has made out a case for bail under sub-section (5) of
section 43D of the UAP Act. We, accordingly, allow the Appeal and
Appellant is directed to be released on bail on her furnishing bail
bond of Rs.5,00,000/-, with with one or two sureties of like amount,
subject to following conditions :
[a] Appellant shall deposit her passport, if any, with the
Special Court.
[b] Appellant shall report to the NIA as and when required.
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[c] Appellant shall not tamper with the evidence or
prosecution witnesses.
[d] Appellant shall remain present at the time of hearing of
the case before the Special Court.
118. 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.
119. In view of dismissal of the Appeal, Criminal Application
Nos.1440 of 2016 and 71 of 2017 no more survive and, hence, stand
disposed off.
120. At this stage, Mr. Gupta, learned Senior Counsel for the
Appellant, submits that it will take time for furnishing bail bond of
Rs.5,00,000/- and, therefore, Appellant be allowed to be released on
furnishing cash security of Rs.5,00,000/- for a period of one month
from today, within which time the Appellant will furnish bail bond,
as directed.
77 APEAL-545-16-Pragya Singh.doc
121. In the light of the above submissions, Appellant is at liberty to
furnish cash security of Rs.5,00,000/-, in lieu of bail bond, only for a
period of one month from today and within the said period of one
month, Appellant to furnish bail bond of Rs.5,00,000/-, as directed.
122. Mr. Desai, learned Senior Counsel for the Applicant-
Intervenor, at this stage, prays for stay of this order. Since we have
recorded the conclusions for the purpose of this Appeal that there is
no material on record to prove prima facie case against the
Appellant, the prayer for stay is rejected.
[DR. SHALINI PHANSALKAR-JOSHI, J.] [RANJIT MORE, J.]
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