Bombay High Court
Vikram Vinay Bhave S/O Vinay Bhave vs The State Of Maharashtra And Anr on 6 May, 2021
Bench: S.S. Shinde, Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION.
CRIMINAL APPEAL NO.187 OF 2020
WITH
INTERIM APPLICATION NO. 661 OF 2020
Vikram Vinay Bhave S/o Vinay Bhave,
Indian Inhabitant, aged 37 years,
presently lodged in Yerawada
Central Prison & having residence
at : House No.101, Shigvan Lane,
Post Varsai, Taluka- Pen,
Dist.-Raigad.
.... Appellant
Vs.
1. State of Maharashtra,
Through Public Prosecutor.
2. Central Bureau of Investigation,
Special Crime Branch,
A-2 Wing, 8th Floor, CGO Complex,
CBD, Belapur, Navi Mumbai-400 614
.... Respondents
AND
CRIMINAL APPEAL NO. 472 OF 2020
Vikram Vinay Bhave,
Indian Inhabitant, aged 37 years,
presently lodged in Yerawada
Central Prison & having
residence at : 497, Flat No.24,
Gurudatta- Maya Appt.,
Shivanagar, Devad, New Panvel,
Dist. Raigad - 410206
At and post Morde, Tal-Devrukh,
Dist.-Ratnagiri-415804. .... APPELLANT
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Vs.
1. State of Maharashtra,
Through Public Prosecutor.
2. Central Bureau of Investigation,
Special Crime Branch, A-2 Wing,
8th Floor, CGO Complex, CBD, Belapur,
Navi Mumbai-400 614.
..... RESPONDENTS
........
Mr. Ghanshyam Upadhyay, Advocate a/w Mr.Virendra
Ichalkaranjikar, Advocate a/w Mr. Vishal Shukla, Advocate for the
appellant in Appeal No.187 of 2020.
Mr. Subhash Jha, Advoate a/w Mr. Vasant Bansode, Mr.Ranjit Nair
and Mr.Harekrishna Mishra, Advocates for the appellant in Appeal
No.472 of 2020.
Mrs. S.D.Shinde, APP for respondent No.1-State.
Mr. Sandesh Patil, Advocate i/b Mr. D.P. Singh, Advocate for
respondent No.2-CBI.
.......
CORAM : S.S. SHINDE & MANISH PITALE, JJ.
RESERVED ON : 24.03.2021.
PRONOUNCED ON : 06.05.2021.
J U D G M E N T (Per : Manish Pitale, J.)
Heard.
2. Admit. Both the appeals are heard finally with the
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consent of the learned counsel for the rival parties.
3. These two appeals are filed by the same person under
section 21 of the National Investigation Agency Act, 2008 (NIA
Act), challenging the orders dated 21/01/2020 and 15/09/2020,
whereby the Court of Additional Sessions Judge, Pune has rejected
bail applications filed by the appellant.
4. The facts leading up to filing of these two appeals are
that on 20/08/2013, Dr.Narendra Dabholkar, an activist seeking to
spread awareness against superstitions, was shot-dead in Pune. A
First Information Report was registered at the Deccan Police
Station, Pune for the offence punishable under section 302 read
with section 34 of the Indian Penal Code (IPC) and section 3 and
25 of the Arms Act, against two unknown persons. It is the case of
the prosecution that Dr. Dabholkar was shot-dead when he was
taking his morning walk on the said date. On 09/05/2014, the
investigation was transferred to the Central Bureau of
Investigation (CBI). The investigation continued without much
success till 2016, when the CBI found material against one
Virendrasingh Tavade of Sanatan Hindu Sanstha. The said person
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was arrested in June 2016 and further investigation led to Sharad
Kalaskar and Sachin Andure, the two persons who allegedly shot
the bullets, which led to the death of Dr.Dabholkar. Accordingly,
charge-sheet was filed against the aforesaid three persons and
offence under the Unlawful Activities Prevention Act, 1967
(UAPA) was also added. The charge-sheet was filed for the offence
punishable under section 302 read with section 34 of the Indian
Penal Code as also section 16 of the UAPA.
5 Further investigation was undertaken and according
to respondent No.2-CBI, material was unearthed which connected
the appellant with the said offence. It was alleged that when
reconstruction of the crime scene was undertaken at the behest of
the said accused Sharad Kalaskar, in the proceeding recorded in
the presence of independent witnesses, the said accused named
the appellant herein as the person, who had helped them to
conduct a recce of the spot where Dr.Dabholkar was shot-dead,
about 15 days prior to the date of the incident. It was also stated
that the appellant allegedly showed them the way to escape on
motorcycle after committing the crime. The said accused also
allegedly identified the photograph of the appellant. On the basis
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of such material, on 25/05/2019, the appellant came to be
arrested and a supplementary charge-sheet was filed on
20/11/2019, against the appellant and another accused person, in
connection with the said crime.
6 The appellant had moved a bail application prior to
filing of charge-sheet against him, which was rejected on
17/08/2019. After filing of the aforesaid supplementary charge-
sheet on 20/11/2019, the appellant filed bail application, which
stood rejected by order dated 21/01/2020, which is subject
matter of challenge in Criminal Appeal No.187 of 2020. The
appellant had moved another bail application before the Sessions
Court on the ground that the said appeal pending before this
Court was not being heard as this Court was taking up only urgent
matters due to the COVID-19 pandemic. The said bail application
was also rejected by the Sessions Court on 15/09/2020, which is
the subject matter of challenge in Criminal Appeal No.472 of
2020.
7 Mr. Subhash Jha, learned counsel for the appellant,
appearing in Criminal Appeal No.472 of 2020 and Mr. Ghanshaym
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Upadhyay, learned counsel for the appellant appearing in Criminal
Appeal No.187 of 2020, submitted that the impugned orders
passed by the Sessions Court rejecting the bail applications of the
appellant were erroneous and that the material brought on record
by respondent No.2-CBI seeking to connect the appellant with the
aforesaid incident was far-fetched, even if such material was to be
accepted. It was submitted that the sheet anchor of the material
relied upon by the CBI was an alleged confession dated
12/10/2018 given by the co-accused Sharad Kalaskar under the
provisions of the Karnataka Control of Organized Crimes Act,
2000 (KCOC Act), in a case registered against him in the State of
Karnataka. It was submitted that such a confession given by the
said accused person in a totally unrelated case in the State of
Karnataka could not be used against the appellant. By referring to
section 19 of the KCOC Act, particularly proviso to sub-section (1)
thereof, the learned counsel for the appellant submitted that since
the appellant was not accused along with said co-accused Sharad
Kalaskar in the case pending before the Court in Karnataka, such
confession could not be utilized against the appellant.
8 It was further submitted that the proceedings
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pertaining to reconstruction of the crime scene prepared at the
behest of the said accused Sharad Kalaskar, when compared with
such proceeding prepared at the behest of accused Sachin Andure
would show that there was obvious contradiction. It was further
emphasized that even identification of the appellant by the said
co-accused Sharad Kalaskar on the basis of photograph was
rendered doubtful if the statement of the independent witness was
properly appreciated. It was further submitted that when material
placed along with the supplementary charge-sheet, even if
accepted as it is, presented a contradictory and improbable
connection of the appellant with the said incident, the test
contemplated under section 43-D(5) of the UAPA for grant of bail
was clearly satisfied by the appellant, as the material against the
appellant could not be said to be even prima facie true. By
inviting attention to the reasons given by the Sessions Court in the
two impugned orders, the learned counsel for the appellant
submitted that the said Court erred in rejecting the bail
applications by relying upon the aforesaid confession and also on
the fact that the appellant was convicted in another case, appeal
against which was pending before this Court wherein he was
granted bail. The Sessions Court had opined that when the
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appellant was released on bail by this Court, his involvement in
the aforesaid incident indicated that he did not deserve to be
enlarged on bail in the present case. Both these reasons were said
to be unsustainable. The learned counsel for the appellant relied
upon judgments of the Hon'ble Supreme Court in the case of
Sundarlal Kanaiyalal Bhatija v. State of Maharashtra , reported in
(2010) 4 SCC 414, NIA v. Zahoor Ahmad Shah Watali, reported in
(2019) 5 SCC 1 and judgment of the Division Bench of this Court
in the case of Dhan Singh v. Union of India , reported in 2019 SCC
On-line Bom. 5721.
9 Per contra, Mr. Sandesh Patil, learned counsel
appearing for the contesting respondent No.2-CBI, submitted that
the appeals deserved to be dismissed because the appellant had
filed successive bail applications without demonstrating as to why
the said bail applications could be favourably considered. The
learned counsel further submitted that while considering the
question of grant of bail, particularly in the context of section 43-
D (5) of the UAPA, the Court was not supposed to appreciate the
material and evidence on record in detail and it was only to be
analyzed whether such material demonstrated that the
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accusations made against the appellant were prima facie true. It
was submitted that the alleged discrepancies pointed out on
behalf of the appellant could not lead to a conclusion that there
was no connection between the appellant and the aforesaid
incident. The learned counsel further submitted that co-accused
Sharad Kalaskar had specifically stated in his confessional
statement recorded under the KCOC Act that the appellant had
helped to conduct recce of the spot of the incident and he had
assisted the accused persons in identifying the escape route. The
same accused person while reconstructing the crime scene had
specifically named the appellant as the person, who had helped to
conduct the recce and that therefore, it was evident that there was
sufficient prima facie material against the appellant, indicating
that he did not deserve to be enlarged on bail. It was submitted
that the Sessions Court correctly relied upon such material
denying relief of bail to the appellant. It was emphasized that the
appellant was admittedly convicted in another case and that he
was out on bail during pendency of his appeal before this Court
where he got involved in the said incident. This was a relevant
factor, which the Sessions Court had taken into consideration and
therefore, no error could be attributed to the Sessions Court in
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rejecting the bail applications of the appellant. The learned
counsel for respondent No.2-CBI relied upon judgments of the
Hon'ble Supreme Court in the case of NIA v. Zahoor Ahmad Shah
Watali (supra), Kalyan Chandra Sarkar v. Rajesh Ranjan, reported
in (2004) 7 SCC 528 and Anil Kumar Tulsiyani v. State of U.P. ,
reported (2006) 9 SCC 425.
10 We have heard the learned counsel for the rival
parties and perused the material on record. These two appeals
have come up for consideration together before us, for the reason
that the appellant filed subsequent bail application before the
Sessions Court after rejection of his earlier bail application and
during pendency of appeal filed there against bearing Criminal
Appeal No.187 of 2020. The appellant has stated in his
subsequent bail application filed before the Sessions Court that he
was constrained to file the same in view of the fact that the said
appeal pending before this Court could not be taken up for
consideration in view of this Court taking up only urgent maters
due to COVID-19 pandemic. The subsequent bail application was
rejected by the impugned order dated 15/09/2020 and the
appellant filed Criminal Appeal No.472 of 2020 challenging the
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same.
11 Since the reasons given by the Sessions Court in both
the impugned orders are almost similar and the appellant before
this Court is the same person, both the appeals were taken up for
consideration together. A perusal of both the impugned orders
would show that there are two main reasons why the Sessions
Court has rejected the bail applications preferred by the appellant.
The first reason is the confessional statement made by co-accused
Sharad Kalaskar under the KCOC Act, in a case pending before a
Court in Karnataka, pertaining to a similar incident where an
individual was shot dead. The Sessions Court has placed much
emphasis on the said confessional statement while holding against
the appellant. The second reason given by the Sessions Court in
both the impugned orders is that when the incident in the present
case took place, the appellant was out on bail granted by this
Court in an appeal against his conviction. The Sessions Court
found that when the appellant was involved in the incident that
took place in the present case, while he was on bail, he certainly
did not deserve to be enlarged on bail in the present case.
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12 Before analyzing as to whether the reasons given by
the Sessions Court while rejecting the bail applications of the
appellant, were justified or not, it would be appropriate to first
refer to the relevant provision of UAPA, since offence punishable
under section 16 of UAPA is also said to have been committed by
the appellant along with other accused persons. The provision
relevant for considering an application for bail concerning
offences under UAPA, shows that the accused has to pass a
stringent test in order to be considered eligible for grant of bail.
In this regard, section 43-D(5) of the UAPA is relevant which reads
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 for such release:
Provided that such accused person shall not be
released on bail or on his own bond if the Court, on a
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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."
13 The aforesaid provision states that an accused under
the UAPA shall not be released on bail if on a perusal of the case
diary or report submitted under section 173 of the Code of Crimi-
nal Procedure, the Court is of the opinion that there are reason-
able grounds for believing that the accusation made against the
accused persons is prima facie true. Thus, if the Court believes
that the material placed on record reasonably shows that the accu-
sation made against the accused persons is prima facie true, bail
cannot be granted to the accused persons. This provision was
specifically dealt with by the Hon'ble Supreme Court in the case of
NIA v. Zahoor Ahmad Shah Watali (supra). The Hon'ble Supreme
Court referred to the above quoted section 43-D(5) of the UAPA
and found that even though under the said provision, the accused
is required to pass a stringent test for grant of bail, it was found
that the said test was lesser in degree when compared to provi-
sions in other Special Acts like the Maharashtra Control of Orga-
nized Crimes Act, 2000 and other such similar enactments. In
such other special enactments, the Court is required to come to
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prima facie finding that the accused is not guilty and only then
can bail be granted to the accused. After appreciating this distinc-
tion, the Hon'ble Supreme Court in the said judgment, found that
while granting bail under section 43-D(5) of the UAPA, the Court
must be satisfied that there were no reasonable grounds to believe
that the accusation made against the accused persons is prima fa-
cie true. In other words, the Court would have to look at the ma-
terial brought on record by the investigating agency and to con-
clude that even prima facie the accusation levelled against the ac-
cused on the basis of such material did not appear to be true.
14 A Division Bench of this Court in the case of Dhan
Singh v. Union of India (supra) considered the question of grant of
bail to accused persons under the provisions of the UAPA and after
referring to the aforesaid judgment of the Hon'ble Supreme Court
in the case of NIA v. Zahoor Ahmad Shah Watali (supra), held that
when the words "prima facie" are coupled with the word "true", it
implies that the Court has to undertake an exercise of crosscheck-
ing the truthfulness of the allegations made in the complaint on
the basis of the material on record. It was also held that if the
Court found on such analysis that the accusations were inherently
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improbable or wholly unbelievable, it would be difficult to hold
that a prima facie true case was made out against the accused. A
note of caution was appended in the said judgment to the effect
that while carrying out such exercise, the Court does not have lib-
erty to come to a conclusion, which may virtually amount to an
acquittal of the accused. Therefore, it becomes evident that the
Court has to proceed on the basis of the material placed before it
by the investigating agency and accepting the same, to analyze the
question as to whether the accusations made against the accused
could be said to be prima facie true.
15 Applying the said principles applicable to considera-
tion of bail applications under the UAPA, we will have to consider
the material placed on record in the present case. Since respon-
dent No.2-CBI has placed much emphasis on the confessional
statement dated 12/10/2018, given by the co-accused Sharad
Kalaskar while opposing the present appeals, it would be relevant
to consider as to what could be the significance attached to such a
confessional statement.
16 It is undisputed that the said confessional statement
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of co-accused Sharad Kalaskar dated 12/10/2018, was recorded
in a case pending against him in the State of Karnataka and that
such confessional statement was recorded under section 19 of the
KCOC Act. The said provision is pari materia with section 20 of
the MCOC Act and even section 19 of the Terrorist and Destructive
Activities (Prevention) Act, 1987 (TADA). The relevant portion of
the said provision of KCOC Act reads as follows:
19. Certain confessions made to police officers to
be taken into consideration.- (1) Notwithstanding any-
thing in the Code or in the Indian Evidence Act, 1872
but subject to the provisions of this section, a confes-
sion made by a person before a police officer not below
the rank of the Superintendent of Police and recorded
by such police officer either in writing or on any me-
chanical device like cassettes, tapes or sound tracks
from which sound or images can be reproduced shall be
admissible in the trial of such person or co-accused,
abettor or conspirator:
Provided that the co-accused, abettor or conspir-
ator is charged and tried in the same case together with
the accused."
17 The proviso to section 19 quoted above shows that
such confession shall be admissible against co-accused person pro-
vided that the co-accused is charged and tried in the same case to-
gether with the accused person. In the context of pari materia
provision i.e. section 15 of the TADA, in the case of Sunderlal
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Kanaiyalal Bhatija v. State of Maharashtra (supra), the Hon'ble
Supreme Court held as follows:
"18. Finally in paragraph 40 this Court an-
swered the issues framed by them in the following
manner: (Prakash Kumar case, SCC p. 430)
"40. For the reasons aforestated, we are of the
view that the decision in Nalini case has laid
down correct law and we hold that the confes-
sional statement duly recorded under Section 15
of TADA and the Rules framed thereunder would
continue to remain admissible for the offences
under any other law which were tried along with
TADA offences under Section 12 of the Act, not-
withstanding that the accused was acquitted of
offences under TADA in the same trial."
19. That being the position, it is now a settled law that
a confessional statement duly recorded by a police
officer in a case related to TADA Act and the rules
framed thereunder would continue to remain
admissible for the offences under any other law which
were tried along with TADA offences under Sections 12
read with Section 15 of the Act notwithstanding that
the accused was acquitted of offences under the TADA
Act in the same trial. But, here is a case where the
allegation was mainly for the offences under IPC and
some offences under the TADA Act were also
incorporated initially but later on the same were
dropped. Consequently, charges in the said case were
framed only for offences under IPC and not under the
TADA Act and the trial is also only for offences under
IPC and not under the TADA Act. Therefore, such
confessional statement as made by the Respondent 4
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under the TADA Act, in a different case, cannot be used
or utilized by the prosecution in the present case as the
charges were framed only for the offences under the
Indian Penal Code."
18 Thus, applying the position of law that emerges from
the said judgment to the facts of the present case, it becomes clear
that even at this stage that respondent No.2-CBI may not be justi-
fied in wholly relying upon the said confessional statement of co-
accused Sharad Kalaskar. The said confessional statement is ad-
mittedly made under the KCOC Act in a case pending against the
said co-accused Sharad Kalaskar in the State of Karnataka wherein
the appellant is not charged or being tried together with the said
co-accused Sharad Kalaskar. The said confessional statement, as
per the said position of law recognized by the Hon'ble Supreme
Court, cannot be of significance in the present case, as it is admit-
tedly a case different from the one being tried in the case of State
of Karnataka and in any case, the appellant is not charged or be-
ing tried together with the said co-accused Sharad Kalaskar in the
State of Karnataka. Therefore, the emphasis placed by respondent
No.2-CBI solely on the said confessional statement of co-accused
Sharad Kalaskar under the KCOC Act, is prima facie misplaced and
it is also clear that the Sessions Court could not have placed em-
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phasis on the said confessional statement to conclude that the ac-
cusation made against the appellant concerning the incident in
question could be said to be prima facie true. Therefore, the first
reason stated in the impugned orders passed by the Sessions Court
in the present case while rejecting the bail applications, appears to
be based on weak material i.e. the said confessional statement.
19 Apart from the said confessional statement, according
to the learned counsel appearing for respondent No.2-CBI, the
identification of the appellant by co-accused Sharad Kalaskar
based on a photograph provided by the appellant himself as also
the reference to the role of the appellant in the proceeding per-
taining to reconstruction of crime scene at the behest of the said
co-accused Sharad Kalaskar in the presence of independent wit-
nesses, was sufficient incriminating material to directly connect
the appellant with the incident in question. It was submitted that
such material was enough to show that the accusation made
against the appellant was prima facie true and that therefore, no
interference was warranted in the impugned orders.
20 A perusal of the said material shows that on
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18/08/2018 a proceeding was prepared by the investigating
agency i.e. respondent No.2-CBI as per the statement given by an-
other co-accused person Sachin Andure pertaining to reconstruc-
tion of the crime scene. This was recorded in the presence of in-
dependent witnesses. The said proceeding shows that the incident
that occurred on 20/08/2013 in which Dr.Dabholkar was killed,
was described in detail and the role of the said accused Sachin An-
dure and that of co-accused Sharad Kalaskar was stated. It was
also stated as to the manner in which both the accused persons es-
caped after the incident. It is significant that in this proceeding
pertaining to reconstruction of the scene of crime, there is no
mention of the name of the appellant herein or the manner in
which he or any unknown person had helped the said accused
persons by conducting a recce about 15 days prior to the date of
the incident.
21. But, in a similar proceeding pertaining to reconstruc-
tion of crime scene prepared on 08/09/2018, at the behest of co-
accused Sharad Kalaskar, in the presence of independent wit-
nesses, not only was the incident described in the manner in
which co-accused Sachin Andure had described in the proceeding
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dated 18/08/2018, but the name of the appellant was also stated
and it was specifically claimed that the appellant had assisted the
accused persons by helping them conduct recce of the spot of the
incident, about 15 days prior to the incident.
22 There is obvious discrepancy in the two proceedings.
Apart from this, statement of one of the independent witnesses to
the proceeding pertaining to reconstruction of crime scene pre-
pared at the behest of the co-accused Sharad Kalaskar dated
08/09/2018, shows that the said independent witness stated de-
tails of the said proceeding. It is also recorded in the statement of
the said independent witness as to how the said co-accused
Sharad Kalaskar described the actual incident. Yet there is no ref-
erence in the statement of this independent witness about co-ac-
cused Sharad Kalaskar having taken the name of the appellant
and the role attributed to him. Although, it is recorded in the
statement of the independent witness that the proceeding dated
08/09/2018 and the contents thereof are true, the absence of ref-
erence to the name of the appellant is of some significance.
23 The other aspect on which the learned counsel for
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respondent No.2-CBI emphasized was the fact that co-accused
Sharad Kalaskar recognized the appellant on the basis of photo-
graph supplied by the appellant himself. The material on record
in the context of the same shows that according to the seizure
memo pertaining to the photograph, the same was produced by
the appellant himself and it was seized on 12/09/2018. The
seizure memo specifically records that the photograph was seized
from the appellant on 12/09/2018 at 2.30 pm. In this context,
the memorandum prepared in the presence of witnesses in con-
nection with identification of photograph of the appellant by co-
accused Sharad Kalaskar, shows that the proceeding pertaining to
identification of the photograph of the appellant started at 2.00
pm and concluded at around 2.30 pm on 12/09/2018. The tim-
ing mentioned in the seizure memo of the photograph and the
aforesaid memorandum does create some doubt regarding the
same. Therefore, the material on which much emphasis has been
placed by respondent No.2-CBI to link the appellant with the inci-
dent in question, does not appear to indicate that the accusation
levelled against the appellant can be said to be prima facie true.
These aspects were not appreciated in the correct perspective by
the Sessions Court while passing the impugned orders.
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24 We are aware that while considering the material
placed on record along with the charge-sheet, the Court cannot
enter into the realm of appreciation of evidence, but we have pro-
ceeded on the basis of the material on which respondent No.2-CBI
has placed emphasis and as noted above, we find that the same
does not appear to show reasonable grounds to conclude that the
accusations levelled against the appellant can be said to be prima
facie true. This leaves us with the only other reason on which the
Sessions Court has rejected the bail applications of the appellant
i.e. the fact that the appellant was on bail pending appeal against
a conviction when he got allegedly involved in the incident in the
present case. A perusal of the impugned orders would show that
the Sessions Court has proceeded on the basis that the earlier con-
viction of the appellant was also for a terrorist offence. But, as a
matter of fact, the conviction of the appellant in the other case in
which he was released on bail pending appeal before this Court,
was not for a terrorist offence. Therefore, the emphasis placed on
this aspect by the Sessions Court was misplaced and only for this
reason the bail applications of the appellant could have been
rejected.
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25 Insofar as the reliance on judgments by the learned
counsel appearing for respondent No.2-CBI is concerned, the judg-
ment of the Hon'ble Supreme Court in the case of Kalyan Chandra
Sarkar v. Rajesh Ranjan (supra) pertains to the duty of the Court
while dealing with subsequent bail application to consider the rea-
sons and grounds on which earlier bail applications were rejected
and to record the fresh grounds which persuaded it to take a dif-
ferent view. In the present case, admittedly, this Court had not re-
jected the earlier appeal i.e. Criminal Appeal No.187 of 2020 filed
by the appellant, when the appeal arising from the rejection of the
subsequent bail application i.e. Criminal Appeal No.472 of 2020
came up for consideration. It is for this reason that both the ap-
peals are clubbed together and taken for consideration by this
Court. In fact, a perusal of the impugned order in both the ap-
peals would show that the reasons given by the Sessions Court
were more or less similar and therefore, both the appeals were
heard together and they are being disposed of by this common
judgment. Hence, reliance on the said judgment of the Hon'ble
Supreme Court cannot be of assistance to respondent No.2-CBI.
26 Insofar as judgment of the Hon'ble Supreme Court in
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the case of Anil Kumar Tulsiyani v. State of UP (supra) is con-
cerned, the same pertains to the factors to be taken into conside
ration while granting bail in non-bailable offences. The serious-
ness of the offence is one such consideration emphasized upon. In
this regard, suffice it to say that while considering the contentions
raised on behalf of the appellant in these appeals, we have not
only considered the relevant factors concerning prayer for grant of
bail, but the specific requirement of section 43-D(5) of the UAPA
has also been considered and applied to the facts of the present
case.
27 Insofar as judgment in the case of NIA v. Zahoor Ah-
mad Shah Watali (supra) is concerned, reference to the same has
been made herein above and applying the principles laid down
therein, we are of the opinion that the appeals filed by the appel-
lant deserve to be allowed.
28. Additionally, in a recent judgment in the case of
Union of India Vs. K.A. Najeeb (judgment and order dated 1st
February 2021 passed in Criminal Appeal No. 98 of 2021), the
Hon'ble Supreme Court held that even if stringent requirements
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for granting bail in special statutes like U.A.P.A. may result in a
situation where the accused finds it difficult to get a favourable
order of bail, the Constitutional Courts could certainly grant bail,
even in such cases if it is found that rights guaranteed under Part
III of the Constitution are violated. It has been held that long
delay in initiation and completion of trial violates the constitu-
tional right to speedy trial and that in such situation, the Constitu-
tional Court can grant bail when there is no likelihood of the trial
being completed in a reasonable time. The relevant portion of the
said judgment reads as follows :
"18. It is thus clear to us that the presence of
statutory restrictions like Section 43-D (5) of
UAPA per-se does not oust the ability of Constitu-
tional Courts to grant bail on grounds of violation
of Part III of the Constitution. Indeed, both the re-
strictions under a Statue as well as the powers ex-
ercisable under constitutional jurisdiction can be
well harmonised. Whereas at commencement of
proceedings, Courts are expected to appreciate the
legislative policy against grant of bail but the
rigours of such provisions will melt down where
there is no likelihood of trial being completed
within a reasonable time and the period of incar-
ceration already undergone has exceeded a sub-
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stantial part of the prescribed sentence. Such an
approach would safeguard against the possibility
of provisions like Section 43D (5) of UAPA being
used as the sole metric for denial of bail or for
wholesale breach of constitutional right to speedy
trial."
29. In the present case, according to the submissions
made on behalf of the Respondent No. 2- CBI, it is clear that fur-
ther investigation is being undertaken for examining the larger
conspiracy in the matter. It has been stated in a note in the
charge-sheet that further list of witnesses will be submitted as in-
vestigation under Section 173(8) of the Cr.P.C. is continuing. Thus,
there is hardly any likelihood of charges being framed and the
trial commencing in the near future. Consequently, there is very
little chance of the trial being completed in the foreseeable future.
Considering the nature of allegations and extent to which the Re-
spondent No. 2, CBI would be examining witnesses in the matter,
it can be reasonably concluded that the beginning of the trial and
its completion would take a long time. Therefore, we are of the
opinion that this is an additional reason why the prayer for grant
of bail of the Appellant deserves to be allowed by imposing appro-
priate conditions.
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30 In view of the above, the appeals are allowed. The
impugned orders dated 21/01/2020 and 15/09/2020 are quashed
and set aside. The bail applications of the appellant are allowed
in the following terms:
i. The appellant shall be released on bail on furnishing PR
bond of Rs.1,00,000/- and two solvent sureties in the
like amount.
ii. The appellant shall report to the Deccan Police Station,
Pune every day between 8.00 am and 10.00 am, for
first one month. Thereafter he shall report to the said
Police Station twice a week i.e. on Monday and Thurs-
day between 10.00 am. and 12.00 noon for the next
two months. Thereafter the appellant shall report to
the said Police Station every Monday between 10.00 am
and 12.00 noon, till conclusion of the trial.
iii. The appellant shall attend each and every date of the
proceedings before the Trial Court.
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iv. The appellant shall remain within the jurisdiction of the
trial Court/Special Court till the trial is concluded.
v. The appellant shall extend full co-operation during
further investigation by the concerned investigation
agencies.
vi. The appellant shall not in any manner himself or
through any person try to influence or pressurize the
prosecution witnesses.
vii. The appellant shall not himself or through any person
tamper with the evidence and witnesses
viii. The appellant shall surrender his passport, if any, before
the Special Court, where the trial is being conducted, if
not already surrendered.
ix. The appellant shall not indulge in any activity similar to
the activities on the basis of which the said F.I.R. stood
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registered.
x. The appellant shall not try to establish communication
with the co-accused or any other person involved di-
rectly or indirectly in similar activities, through any
mode of communication.
xi. The appellant shall co-operate for expeditious disposal
of the trial and in case delay is caused due to him, then
his bail would be liable to be cancelled.
xii. In the event, the appellant violates any of the aforesaid
conditions, the relief of bail granted by this Court will
be liable to be cancelled.
xiii. After release of appellant on bail, he shall file underta-
king within two weeks before the concerned trial Court
stating therein that, he will strictly abide by the condi-
tions No. (i) to (xii) mentioned herein above.
31. It is also made clear that the observations made in
this judgment and order are limited to the question of grant of
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bail to the appellant and that the trial shall proceed against the
appellant and the co-accused persons without being influenced by
the observations made herein above.
32. The appeals stand disposed of accordingly.
33 In view of disposal of the Criminal Appeals, Interim
Application No. 661 of 2020 does not survive, the same is accord-
ingly disposed of.
34 Mr.Jha, appearing for the appellant, prays that
keeping in view the present pandemic situation, the appellant
may be initially released on furnishing only cash surety and
secondly, that the appellant is a resident of Ratnagiri District
and it will be inconvenient for him to attend the police sta-
tion at Pune as ordered by this Court. This prayer of the
learned Counsel is vehemently opposed by Mr.Sandesh Patil,
appearing for the CBI.
35 In absence of any specific application by the
appellant, we are not inclined to entertain prayer made by
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Mr.Jha to release the appellant initially on furnishing cash
surety for six weeks with undertaking that he will furnish
solvent surety within six weeks. However, as regards his oral
prayer for furnishing cash surety, the appellant is granted
liberty to file an appropriate application and may move the
same before the Vacation Court. Insofar as the second oral
prayer of the appellant to stay clause (iv) of the operative
order i.e., "The appellant shall remain within the jurisidction
of the trial Court/Special Court till the trial is concluded." ,
and his attendance to the police station at Pune as ordered by
this Court is concerned, the said oral prayer is rejected.
36 Mr.Sandesh Patil, appearing for the Respondent -
CBI, prays for stay to the effect and implementation of this
judgment and order.
37 Mr.Jha, learned Counsel appearing for the
appellant, vehemently opposed the prayer made by Mr.Patil
and submitted that the appellant is in jail for a considerable
period and there are no valid grounds raised to stay the effect
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and implementation of the judgment and order pronounced
today directing release of the appellant.
38 On considering the rival submissions, we do not
think any valid reasons to accede to the prayer of Mr.Sandesh
Patil, appearing for the CBI, so as to stay the effect and
implementation of this order. Hence, the said oral prayer
stands rejected.
(MANISH PITALE, J.) (S.S.SHINDE, J.)
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