Bombay High Court
Jyoti Jagtap vs National Investigation Agency ... on 17 October, 2022
Bench: A.S. Gadkari, Milind N. Jadhav
Appel.289.22.doc
RMA/ATU
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 289 OF 2022
Jyoti Jagtap,
D/o. Raghobha Shankar Jagtap,
Indian inhabitant, aged 34 years,
Presently lodged at Byculla District
Jail (Women), Class - I, Byculla,
Mumbai - 400 008;
Otherwise R/o. Pulacha - Mala,
Belsar, Teshil - Purandar,
Pune. .. Appellant
(Ori. Accused No.15)
Versus
1. National Investigating Agency,
(FIR No.1 of 2020)
having its Mumbai office at
7th Floor, Cumballa Hill Telephone
Exchange, Pedder Road,
Mumbai- 400 026.
2. State of Maharashtra .. Respondents
Mr. Mihir Desai, Senior Advocate i/by Kritika Agarwal, Advocate for
Appellant.
Mr. Sandesh Patil, Advocate & Special PP a/w Mr. Chintan Shah, Ms.
Anusha Amin, Mr. Prithviraj Gole, Advocate for Respondent No. 1
Mr. S.S. Hulke, APP for State
Mr. Pradip Bhale, Dy. S.P. N.I.A. present.
1/47
Appel.289.22.doc
CORAM : A. S. GADKARI &
MILIND N. JADHAV, JJ.
RESERVED ON : 04th OCTOBER 2022
PRONOUNCED ON 17th OCTOBER 2022
JUDGMENT (PER : MILIIND N. JADHAV, J.)
. By this Appeal, filed under Section 21(4) of the National
Investigation Agency Act, 2008 (for short "NIA Act"), Appellant has
challenged the Judgment and Order dated 14.02.2022 passed by the
Special Judge, Greater Bombay (for short "Trial Court") in NIA Special
Case No.414 of 2020, rejecting the Appellant's Bail Application.
2. Appellant is arraigned as accused No. 15 in FIR No. RC-
01/2020/NIA/MUM registered by National Investigation Agency (for
short "NIA") under Sections 120B, 115, 121, 121A, 124A, 153A,
505(1)(B) and 34 of the Indian Penal Code, 1860 (for short "IPC")
and Sections 13,16,18,18A, 20, 38, 39 and 40 of Unlawful Activities
(Prevention) Act, 1967 (for short "UAP Act").
3. Facts which emerge for consideration of the present Appeal,
are as under:
(i) On 31.12.2017, Bhima Koregaon Shaurya Din Prerana
Abhiyan organised an event called 'Elgaar Parishad' in
Shaniwarwada, Pune. It was decided to celebrate
200th Anniversary of the historic battle of Bhima
Koregaon on 01.01.2018 by more than 200-250 social
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organisations under the banner of ' Bhima Koregaon
Shaurya Din Prerana Abhiyan' led by Hon'ble Justice
(Retd.) P.B. Sawant and Hon'ble Justice (Retd.)
B.G.Kolse Patil. On 01.01.2018, mobs bearing saffron
flags attacked persons travelling to and returning from
Shaniwarwada Pune; there was large scale violence and
one youth lost his life.
(ii) A Zero(0) FIR was registered on 02.01.2018 at Pimpri
Chinchwad Police Station, Pune by eye-witness Ms.
Anita Salve under various provisions of Indian Penal
Code, 1860, Arms Act,1959, Maharashtra Police Act,
1951 and Scheduled Castes and Scheduled Tribes
(Previsions of Atrocities) Act, 1989) (for short "SC & ST
Act") alleging involvement of Sambhaji Bhide, Milind
Ekbote and their followers for the attack and violence.
A state wide bandh was also called by several Dalit,
OBC, Maratha and Muslim organisations against the
attacks across Maharashtra State thereafter.
(iii) On 08.01.2018, first informant Mr. Tushar Damgude,
registered FIR No. 4 of 2018 under the provisions of
Sections 153-A, 505(1)(b), 117 read with 34 of IPC
stating that, the Elgar Parishad event organised at
Appel.289.22.doc
Shaniwarwada, Pune on 31.12.2017 was attended by
him at around 2:00 p.m., wherein there were a few
speakers, compere, singers and other performers who
performed on stage. The speakers gave provocative
speeches, their performances were provocative in
nature and had the effect of disrupting columnal
harmony. It is stated that the banned terrorist
organisation CPI (Maoist) (for short "CPI(M)") had an
organisational role to play in the said programme.
CPI(M) wanted to infiltrate, inculcate and permeate its
ideology amongst the masses, mostly impoverished
classes and misguide them towards violent
uncontitutional activities. According to complainant
Kabir Kala Manch's (for short "KKM") Sudhir Dhawale,
other members and activists had performed provocative
street plays in different areas of Maharashtra earlier,
made malice speeches and spread false history, made
disputable statements and objectionable slogans
inciting passion and hatred to disrupt communal
harmony, sung songs and participated in road dramas.
On 31.12.2017, these very activists performed skit /
stage plays at the 'Elgar Parsihad' event, as a direct
result of which there were incidents of violence, arson,
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stone pelting and death of an innocent person near
Bhima Koregaon, Pune on 01.01.2018.
(iv) Houses of Rona Wilson (Accused No. 2), Surendra
Gadling (Accused No. 3), Sudhir Dhawale (Accused No.
1), Harshali Potdar, Sagar Gorakhe (Accused No. 13),
Deepak Dhengale, Ramesh Gaichor (Accused No. 14)
and Appellant Jyoti Jagtap (Accused No. 15) were
searched by the police. Articles and material seized
during the search were sent to Forensic Science
Laboratory, Pune. The analysis of seized
electronics/digital articles confirmed that accused
Surendra Gadling, Rona Wilson, Shoma Sen (Accused
No. 4), Mahesh Raut (Accused No. 5), Comrade M. @
Milind Teltumbade (WA-1) (now deceased), Comrade
Prakash @ Navin @ Ritupan Goswami (WA-2)
(absconding), Comrade Manglu (WA-3) (absconding),
Comrade Deepu (WA-4) (absconding) were involved in
the crime. During investigation, the investigating officer
invoked provisions of Sections 13, 16, 17, 18, 18(B),
20, 38, 39, and 40 of the UAP Act.
(v) Accused Surendra Gadling, Rona Wilson, Shoma Sen,
Mahesh Raut and Sudhir Dhawale were arrested on
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06.06.2018. Residences of Shoma Sen and Mahesh
Raut were searched, and Police seized digital devices
and other articles. Articles and material seized showed
involvement of more accused, that is, Varavara Rao
(Accused No. 6), Arun Ferreira (Accused No. 8), Sudha
Bharadwaj (Accused No. 9), Vernon Gonsalves
(Accused No. 7), Anand Teltumbade (Accused No. 10),
Stan Swamy (Accued No. 16) and Gautam Navlakha
(Accused No. 11). Their names were added on
23.08.2018.
(vi) Searches were conducted on 28.08.2018 at the
residences/workplaces of Varavara Rao, Sudha
Bharadwaj, Arun Ferreira, Gautam Navlakha, Stan
Swamy and Vernon Gonsalves. Police arrested Varavara
Rao, Sudha Bharadwaj, Gautam Navlakha, Arun
Ferreira and Vernon Gonsalves and put them under
house arrest. On 15.11.2018, Pune Police filed charge
sheet under sections 153 (A), 505(1)(B), 117, 120 (B),
121, 121 (A), 124 (A) and 34 of IPC and sections 13,
16, 17, 18, 18(B), 20, 38, 39 and 40 of the UAP Act
against Sudhir Dhawale, Surendra Gadling, Shoma Sen,
Mahesh Raut, Rona and five absconding accused
Appel.289.22.doc
persons namely Kishan da @ Prashanto Bos (WA-5),
Milind Teltumbde, Prakash @ Rituparn Goswami,
Deepu and Manglu. Subsequently, on 21.02.2019,
Police filed supplementary charge sheet under sections
153 (A), 505(1)(B), 117, 120 (B), 121, 121 (A), 124
(A) & 34 of IPC and section 13, 16, 17, 18, 18(B), 20,
38, 39 and 40 of the UAP Act against Varavara Rao,
Arun Ferreira, Vernon Gonsalves and Sudha Bharadwaj
and one absconding accused namely Ganapathy @
Mupalla Laxman Rao (WA-6).
(vii) On 19.02.2019, Pune police filed supplementary
chargesheet against four more arrested persons before
the Sessions Court.
(viii)On 24.01.2020, the Under Secretary to the
Government, Ministry of Home Affairs, New Delhi,
directed the Respondent No. 1 - NIA to take up the
investigation of FIR No. 4/2018 of Vishrambaug Police
Station. NIA re-registered FIR RC-01/2020/NIA/Mum
u/s. Section 153A, 505(1)(b), 117, 34 of the IPC and
Section 13, 16, 18, 18B, 20 and 39 of the UAP Act on
24.01.2020.
(ix) Appellant was arrested on 08.09.2020.
Appel.289.22.doc
(x) Appellant applied for bail by filing Criminal Application
No.5 of 2021 in the NIA Special Court. Appellant
contended that prosecution case against her at the most
related to offences punishable under Sections 38 and
39 of the UAP Act and there was no incriminating
material found against her to link her with the banned
CPI(M), a terrorist organization and / or support the
terrorist organisation. It was contended that there is no
material to suggest that Appellant was involved in any
conspiracy to overthrow the government. Appellant
claimed that, it would take time for conclusion of trial,
and thus, prayed to release her on bail. Respondent-
NIA opposed the application. NIA claimed that there is
evidence against Appellant and all co-accused having a
link with members of the banned organisation CPI(M)
and they were all active members in its overt and
unconstitutional activities. NIA contended that
Appellant had received arms / weapons / explosives
training with the banned organisation CPI (Maoist) in
the past and therefore, Appellant should not be
released on bail.
(xi) Learned Special Judge rejected the bail application by
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the impugned judgment and order dated 14.02.2022.
Hence, Appellant is before us in appeal.
Respondent No. 1 - NIA has filed affidavit in reply
dated 17.08.2022 and has placed a compilation of
relevant documents from the chargesheet running into
134 pages.
4. We have heard Mr. Mihir Desai, learned Senior Advocate
appearing for Appellant and Mr. Sandesh Patil, Special PP for
Respondent No.1 - NIA and Mr. S.S.Hulke, learned APP for State of
Maharashtra and with their able assistance perused entire record.
5. Mr. Mihir Desai, learned Senior Advocate appearing on
behalf of Appellant has made the following submissions:
5.1. That there are 4 specific grounds indicting involvement of
Appellant put forth by prosecution in the present case, viz; (a) that
Appellant was part of the organizing committee for 'Elgar Parishad'
and attended organisational meetings prior to the event date; (b) that
Appellant, on the date of event participated, performed and made
provocative slogans and thus was involved in the larger conspiracy to
unsettle the democratically established government and spread
communal disharmony; (c) that the provocative acts of Appellant on
the date of event led to violence as alleged in the FIR on the following
day; and (d) that Appellant had received arms training in 2011 and
Appel.289.22.doc
attended the camp conducted by co-accused and members of the
banned CPI(M), a terrorist organisation;
5.2. He submitted a consolidated argument in respect of the first
3 grounds relating to the 'Elgar Parishad' event. He submitted that it
was organized by more than 200 - 250 social organizations and in all
13 preliminary meetings were held for organizing the said event prior
to the date of event and out of them Appellant had participated in 4
meetings on 24.09.2017 (at Dadar), 02.10.2017 (at Pune),
12.11.2017 (at Aurangabad) and 23.11.2017 (at Aurangabad). That
the invitation card in respect of organizing and inviting people for the
said event was signed by more than 100 persons, out of which
Appellant was one of them and incidentally only 15 persons out of the
entire organisational team of the said event have been proceeded with
by filing FIR. That in so far as indictment of Appellant for making
provocative statements is concerned, prosecution has relied upon 3
statements viz. of Mr. Kishor Kamble dated 11.06.2018, Mr. Datta Pole
dated 12.06.2018 and Dr. Sangram Bamne @ Sangram Maurya dated
24.09.2020. However, perusal of all 3 statements reveal that none of
them specifically talk about or point a finger towards any provocative
act or statement made by Appellant during the said event. That the
report dated 01.01.2018 prepared by the Senior Police Inspector,
Vishrambaug Police Station and submitted to the Deputy
Commissioner of Police, Pune City merely states that participation of
Appel.289.22.doc
Appellant was restricted to shouting slogans and performance in the
skit/play with several other participants during the event and does not
directly attribute any role of provocative nature and act to Appellant.
That there is no statement recorded which directly indicts Appellant's
role as being provocative in nature and leading to violence on the
following day after the event. That the name of Appellant did not
figure in the FIR registered on 02.01.2018.
5.3. In respect of the allegation for indictment of Appellant on
the basis of her visit to the forest in the year 2011 when she was 24
years old, he submitted that prosecution has relied on two statements
dated 16.08.2020 and 17.08.2018 given by KW-3 under Section 161
and 164 of the Cr.P.C. That out of these two statements, statement
under Section 161 dated 16.08.2020 talks about Appellant carrying
arms whereas the second statement under Section 164 is absolutely
silent about Appellant's role / name. That prosecution has further
relied on 4 statements dated 02.11.2018, 23.12.2018, 24.08.2020 and
25.08.2020 given by KW-4 under Section 161 (first two statements)
and 164 (later two statements) of the Cr.P.C. Out of these 4
statements, two statements under Section 161 do not mention the
name of Appellant whereas the two statements under Section 164
mention the presence of Appellant in the forest during her visit in the
year 2011. He submitted that, taking the case of prosecution at the
highest, assuming that Appellant had visited the forest in the year
Appel.289.22.doc
2011, it was the exuberance of her youth days and nothing more
should be read into it to link her visit to the present allegations in the
FIR. That merely on the basis of these 3 statements mentioning the
presence of Appellant during her visit in the forest, she cannot be
linked to the banned CPI(M) terrorist organisation.
5.4. That prosecution registered FIR on 08.01.2018, whereas
they arrested Appellant on 08.09.2020 i.e. after a period of almost
more than 2 years and 9 months. That during this period Appellant
was always available and despite two raids for recovery and seizure of
incriminating material from the house of Appellant on 17.04.2018 and
12.09.2020, no incriminating material whatsoever was recovered,
whereas in so far as the other accused persons are concerned, during
the house raids in their respective houses, substantial incriminating
material was recovered.
5.5. That it is alleged by prosecution that KKM is the frontal
organization of CPI (M) without any basis. He admitted that CPI(M)
is notified as a terrorist organization in the first scheduled to the UAP
Act against entry No.34 since 22.06.2009. That in this respect
prosecution has relied upon two statements of KW-5 under Section
161 of Cr.P.C. dated 31.08.2020 wherein it is stated that KKM is the
front of CPI (M) and another statement under Section 164 Cr.P.C.
dated 03.09.2020 wherein it is stated that KKM participated in the
'Elgar Parishad' meeting. That, apart from these statements there is no
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other material to show nexus of KKM as the frontal organization of CPI
(M) and both these statements are wholly unsubstantiated allegations.
5.6. That prosecution has relied upon contents of one letter
dated 02.02.2018 addressed by Comrade Rona on the suject of success
of 'Elgar Parishad', however reading contents of the said letter does
not in any way involve or incriminate the Appellant.
5.7. That in all there are 16 accused in the Bhima Koregaon case
(Elgar Parishad) event and Appellant is accused No.15; that in so far
as other accused are concerned, they have been charged on the basis
of substantial recovery of incriminating material from their mobile
phones, e-mails, computers, laptops, printed material and books,
whereas in Appellant's case there is no such recovery whatsoever and
hence Appellant deserves to be enlarged on bail.
6. Mr. Desai in support of his aforesaid submissions has relied
upon the following decisions:
(i) National Investigating Agency Vs. Zahoor Ahmad Shah
Watali1;
(ii) Union of India Vs. K.A. Najeeb2;
(iii) Sudesh Kedia Vs. Union of India3;
(iv) Dhan Singh Vs. Union of India4;
(v) The State of Maharashtra Vs. Iqbal Ahmed5;
(vi) Iqbal Ahmed Kabir Ahmed Vs. State of Maharashtra6;
1 (2019) 5 SCC 1
2 2021 SCC Online SC 50
3 (2021) 4 SCC 704
4 2019 SCC Online Bom. 5721
5 Special Leave to Appeal (Cri.) No(s).9957/2021
6 2021 SCC Online Bom. 18051
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(vii) Thwaha Fasal Vs. Union of India7;
(viii) Indra Das Vs. State of Assam8;
(ix) The State of Maharashtra Vs. Konnath Muralidharan 9;
(x) Konnath Murlidharan Vs. State of Maharashtra10;
(xi) Sidhique Kappan Vs. State of Uttar Pradesh11;
(xii) Balwant Singh & Anr. Vs. State of Punjab12;
(xiii)Bhagwan Swarup Lal Bishan Lal & Ors. Vs. State of
Maharashtra13;
(xiv) Lennart Schussler & Anr. Vs. The Director of
Enforcement & Anr.14;
(xv) Extracts of Kehar Singh & Ors. Vs. State (Delhi
Administration)15;
(xvi) Extract of State Vs. Nalini & Ors.16;
(xvii)Amit Sahni (Saheen Bagh) Vs. Commissioner of
Police17 and
(xviii) Kartar Singh Vs. State of Punjab18.
6.1. We do not find it necessary to reproduce the submissions
made in respect of all the aforesaid judgments for avoiding repetition.
We have dealt with four judgments which we find absolutely essential.
The thrust of Mr. Desai's submissions while referring to the ratios of
the aforesaid judgments is to persuade us to consider the settled legal
7 2021 SCC Online SC 1000
8 (2011) 3 SCC 380
12 (1995) 3 SCC 214
13 (1964) 2 SCR 378
14 1970 (1) SCC 152
15 (1988) 3 SCC 609
16 (1999) 5 SCC 253
17 (2020) 10 SCC 439
18 (1994) 3 SCC 569
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position about issues to be considered for deciding application for bail
on the basis of following parameters:
(i) whether there is any prima facie or reasonable ground
to believe that accused committed the offence;
(ii) nature and gravity of charge;
(iii) severity of punishment in the event of conviction;
(iv) danger of accused absconding or fleeing, if released on
bail;
(v) character, behaviour, means, position and standing of
accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
tampered with;
(viii) danger, of course, of justice being thwarted by grant of
bail; and
(ix) when it comes to offences punishable under special
enactments, such as the 1967 Act, something more is
required to be kept in mind in view of the special
provisions contained in Section 43-D of the UAP Act,
inserted by Act 35 of 2008 w.e.f. 31.12.2008.
6.2. He submitted that while considering the prayer for bail in
relation to offences under UAP Act and special enactments, Court is
required to record its opinion that there are reasonable grounds for
believing that accused is "not guilty" of the alleged offences; that there
are reasonable grounds for believing that the allegations and
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accusations against such person are "prima facie true" and such
recording of satisfaction would mean that the material/evidence
recovered, seized and collated by the Investigating Agency in reference
to the accusation against accused in the FIR must prevail until
contradicted and/or disproved by other evidence and that such
material on the face of it shows complicity of accused in the
commission of the stated offence. He has drawn our attention to
paragraph Nos.23 and 24 of the judgment in the case of National
Investigating Agency Vs. Zahoor Ahmed Shah Watali (first supra)
which is the settled law and urged us to record a finding on the basis
of broad probabilities regarding involvement of Appellant in the crime
which according to him is far from remote. Paragraph Nos.23 and 24
of the said judgment, which we find relevant to reproduce read thus:-
"23. By virtue of the proviso to sub-section (5), it is the
duty of the Court to be satisfied that there are reasonable
grounds for believing that the accusation against the
accused is prima facie true or otherwise. Our attention was
invited to the decisions of this Court, which has had an
occasion to deal with similar special provisions in TADA
and MCOCA. The principle underlying those decisions may
have some bearing while considering the prayer for bail in
relation to offences under the 1967 Act as well. Notably,
under the special enactments such as TADA, MCOCA and
the Narcotic Drugs and Psychotropic Substances Act, 1985,
the Court is required to record its opinion that there are
reasonable grounds for believing that the accused is "not
guilty" of the alleged offence. There is degree of difference
between the satisfaction to be recorded by the Court that
there are reasonable grounds for believing that the accused
is "not guilty" of such offence and the satisfaction to be
recorded for the purposes of the 1967 Act that there are
reasonable grounds for believing that the accusation
against such person is "prima facie" true. By its very
nature, the expression "prima facie true" would mean that
the materials/evidence collated by the Investigating
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Agency in reference to the accusation against the
concerned accused in the first information report, must
prevail until contradicted and overcome or disproved by
other evidence, and on the face of it, shows the complicity
of such accused in the commission of the stated offence. It
must be good and sufficient on its face to establish a given
fact or the chain of facts constituting the stated offence,
unless rebutted or contradicted. In one sense, the degree of
satisfaction is lighter when the Court has to opine that the
accusation is "prima facie true", as compared to the
opinion of accused "not guilty" of such offence as required
under the other special enactments. In any case, the
degree of satisfaction to be recorded by the Court for
opining that there are reasonable grounds for believing
that the accusation against the accused is prima facie true,
is lighter than the degree of satisfaction to be recorded for
considering a discharge application or framing of charges
in relation to offences under the 1967 Act. Nevertheless,
we may take guidance from the exposition in the case of
Ranjitsing Brahmajeetsing Sharma (supra), wherein a
three-Judge Bench of this Court was called upon to
consider the scope of power of the Court to grant bail. In
paragraphs 36 to 38, the Court observed thus:
"36. Does this statute require that before a
person is released on bail, the court, albeit
prima facie, must come to the conclusion that
he is not guilty of such offence? Is it necessary
for the court to record such a finding? Would
there be any machinery available to the court
to ascertain that once the accused is enlarged
on bail, he would not commit any offence
whatsoever?
37. Such findings are required to be recorded
only for the purpose of arriving at an objective
finding on the basis of materials on record only
for grant of bail and for no other purpose.
38. We are furthermore of the opinion that the
restrictions on the power of the court to grant
bail should not be pushed too far. If the court,
having regard to the materials brought on
record, is satisfied that in all probability he
may not be ultimately convicted, an order
granting bail may be passed. The satisfaction
of the court as regards his likelihood of not
committing an offence while on bail must be
construed to mean an offence under the Act
and not any offence whatsoever be it a minor
or major offence. ... What would further be
necessary on the part of the court is to see the
culpability of the accused and his involvement
in the commission of an organised crime either
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directly or indirectly. The court at the time of
considering the application for grant of bail
shall consider the question from the angle as to
whether he was possessed of the requisite
mens rea...." And again in paragraphs 44 to
48, the Court observed:
"44. 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. Similarly, the
court will be required to record a finding as to
the possibility of his committing a crime after
grant of bail. However, such an offence in
futuro must be an offence under the Act and
not any other offence. Since it is difficult to
predict the future conduct of an accused, the
court must necessarily consider this aspect of
the matter having regard to the antecedents of
the accused, his propensities and the nature
and manner in which he is alleged to have
committed the offence.
45. It is, furthermore, trite that for the purpose
of considering an application for grant of bail,
although detailed reasons are not necessary to
be assigned, the order granting bail must
demonstrate application of mind at least in
serious cases as to why the applicant has been
granted or denied the privilege of bail.
46. The duty of the court at this stage is not to
weigh the evidence meticulously but to arrive
at a finding on the basis of broad probabilities.
However, while dealing with a special statute
like MCOCA having regard to the provisions
contained in sub-section (4) of Section 21 of
the Act, the court may have to probe into the
matter deeper so as to enable it to arrive at a
finding that the materials collected against the
accused during the investigation may not
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justify a judgment of conviction. The findings
recorded by the court while granting or
refusing bail undoubtedly would be tentative
in nature, which may not have any bearing on
the merit of the case and the trial court would,
thus, be free to decide the case on the basis of
evidence adduced at the trial, without in any
manner being prejudiced thereby.
47. In Kalyan Chandra Sarkar v. Rajesh Ranjan
this Court observed: (SCC pp. 537-38, para 18)
'18. We agree that a conclusive finding in
regard to the points urged by both the sides is
not expected of the court considering a bail
application. Still one should not forget, as
observed by this Court in the case Puran v.
Rambilas : (SCC p. 344, para 8) 'Giving
reasons is different from discussing merits or
demerits. At the stage of granting bail a
detailed examination of evidence and elaborate
documentation of the merits of the case has
not to be undertaken. ... That did not mean
that whilst granting bail some reasons for
prima facie concluding why bail was being
granted did not have to be indicated.' We
respectfully agree with the above dictum of
this Court. We also feel that such expression of
prima facie reasons for granting bail is a
requirement of law in cases where such orders
on bail application are appealable, more so
because of the fact that the appellate court has
every right to know the basis for granting the
bail. Therefore, we are not in agreement with
the argument addressed by the learned counsel
for the accused that the High Court was not
expected even to indicate a prima facie finding
on all points urged before it while granting
bail, more so in the background of the facts of
this case where on facts it is established that a
large number of witnesses who were examined
after the respondent was enlarged on bail had
turned hostile and there are complaints made
to the court as to the threats administered by
the respondent or his supporters to witnesses
in the case. In such circumstances, the Court
was duty-bound to apply its mind to the
allegations put forth by the investigating
agency and ought to have given at least a
prima facie finding in regard to these
allegations because they go to the very root of
the right of the accused to seek bail. The non-
consideration of these vital facts as to the
allegations of threat or inducement made to
the witnesses by the respondent during the
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period he was on bail has vitiated the
conclusions arrived at by the High Court while
granting bail to the respondent. The other
ground apart from the ground of incarceration
(2004) 7 SCC 528 (2001) 6 SCC 338 which
appealed to the High Court to grant bail was
the fact that a large number of witnesses are
yet to be examined and there is no likelihood
of the trial coming to an end in the near future.
As stated hereinabove, this ground on the facts
of this case is also not sufficient either
individually or coupled with the period of
incarceration to release the respondent on bail
because of the serious allegations of tampering
with the witnesses made against the
respondent.'
48. In Jayendra Saraswathi Swamigal v. State
of T.N. this Court observed: (SCC pp. 21-22,
para 16) '16. ... The considerations which
normally weigh with the court in granting bail
in non-bailable offences have been explained
by this Court in State v. Capt. Jagjit Singh and
Gurcharan Singh v. State (Delhi Admn.) and
basically they are -- the nature and
seriousness of the offence; the character of the
evidence; circumstances which are peculiar to
the accused; a reasonable possibility of the
presence of the accused not being secured at
the trial; reasonable apprehension of witnesses
being tampered with; the larger interest of the
public or the State and other similar factors
which may be relevant in the facts and
circumstances of the case."
24. A priori, the exercise to be undertaken by the Court
at this stage - of giving reasons for grant or non-grant of
bail - is markedly different from discussing merits or
demerits of the evidence. The elaborate examination or
dissection of the evidence is not required to be done at this
stage. The Court is merely expected to record a finding on
the basis of broad (2005) 2 SCC 13 (1962) 3 SCR 622
(1978) 1 SCC 118 probabilities regarding the involvement
of the accused in the commission of the stated offence or
otherwise."
6.3. Next he has referred to the observations of the Supreme
Court made in paragraph No.20 in the case of Union of India Vs. K.N.
Appel.289.22.doc
Najeeb (second supra) to highlight and outline that the provision of
Section 43-D(5) of the UAP Act when considered for enlargement on
bail is comparatively less stringent than the provision of Section 37 of
the NDPS Act wherein the competent Court needs to be satisfied that
prima facie accused is not guilty and that he is unlikely to commit
another offence while on bail whereas there is no such pre-condition
under the UAP Act.
6.4. He has next referred to and relied upon paragraph Nos.17
and 18 in the case of Dhan Singh Vs. Union of India and other
companion matters (third supra) decided by a Co-ordinate Bench of
this Court, which has explained and highlighted the interpretation of
the words "prima facie" coupled with the word "true" and the exercise
which the Court needs to undertake in this context on the basis of
material on records, as also interpretation of the words "reasonable
ground" as appearing in Section 43-D(5) of UPA Act. We find it useful
to reproduce paragraph No.17 and 18 for reference which read thus:
"17. When the word "prima facie" is coupled with the
word "true", it implies that the court has to undertake an
exercise of cross- checking the truthfulness of the
allegations made in the avk 44/84 APPEALS-580-2016-
581-2016-622-2016-623-2016-J.doc complaint, on the
basis of the materials on record. If the court finds, on such
analysis, that the accusations are inherently improbable or
wholly unbelievable, it may be difficult to say that a case,
which is "prima facie true", has been made out. In doing
this exercise, the court has no liberty to come to a
conclusion, which may virtually amount to an acquittal of
the accused. Mere formation of opinion by the court, on
the basis of the material placed before it, is sufficient. In
the matter of Jayanta Kumar Ghosh (supra) the Hon'ble
Division Bench of Gauhati High Court interpreted
Appel.289.22.doc
provisions of Section 41D(5) of the NIA Act and
exhaustively dealt with meaning of words "prima facie,
true, and reasonable ground". Paragraphs 69, 74, 78 and
82 of the said judgment can be quoted with advantage.
"69 From the meaning, attributed to the
word "prima facie", by various dictionaries, as
indicated above, and the observations, made
by the Supreme Court, in its decisions, in The
Management of the Bangalore Woollen Cotton
and Silk Mills, (supra) what clearly follows is
that prima facie is a Latin word, which means,
At first sight or glance or on its face and in
common law it is referred to as "the first piece
of evidence of fact" i.e., considered true unless
revoked or contradicted."
"74 The term "true" would mean a
proposition that the accusation brought against
the accused person, on the face of the
materials collected during investigation, is not
false. The terms false again would mean a
proposition, the existence of which cannot be a
reality. While arriving at a finding whether
there are reasonable grounds for believing that
the accusation against the accused is prima
facie true or false, the court can only look into
the materials collected during investigation,
and on its bare perusal should come to a
finding that the accusation is inherently
improbable, however, while so arriving at a
finding the court does not have the liberty to
come to a conclusion which may virtually
amount to an acquittal of the accused."
"78 The expression, "reasonable ground",
means something more than prima facie
ground, which contemplates a substantially
probable case for believing that the accused is
guilty of the offence(s) alleged. Under Section
437 Cr.P.C. an accused is not to be released on
bail if there appear reasonable grounds for
believing that he has been guilty of an offence,
which is punishable with death or
imprisonment for life. Under Section 437
Cr.P.C., the burden is on the prosecution to
show existence of reasonable ground for
believing that the accused is guilty. Hence, the
presumption of innocence, which always runs
in favour of the accused, is displaced only on
the prosecution showing existence of
reasonable ground to believe that the accused
Appel.289.22.doc
is guilty. [See Union of India v. Tharmssharasi,
(1995) 4 SCC 190 and Union of India v. Shiv
Shankar Kesari, (2007) 7 SCC 798.]"
"82 In short, thus, while the Special Court,
constituted under the NIA Act, does not suffer
from the limitations, which the TADA courts
had by virtue of the provisions of Section
20(8), read with Sectioni 20(9) thereof, the
fact remains that the Special Court, not being a
court of Sessions or of the High Court, cannot
exercise the powers of the Court of Sessions or
High Court under Section 439 Cr.P.C. Hence,
while dealing with the scheduled offences,
covered by the proviso to sub-Section (5) of
Section 43-D, Special Court, constituted under
the NIA Act, would suffer not only from the
limitations imposed by clauses (i) and (ii) of
sub-Section (1) of Section 437, but also by the
proviso to sub-Section (5) of Section 43D of
the UA(P) Act, 1967, wherever the provisions,
contained in the proviso to Section 43D(5),
would be applicable."
18. In the matter of Bharat Mohan Rateshwar (supra)
and Ashringdaw Warisa @ Partha Warisa (supra) while
reiterating the similar position of the law in this regard, it
is reiterated that in a case, investigated by the agency, if
the Special Court forms an opinion that there are
reasonable grounds for believing that the accused has
committed an offence punishable with death or
imprisonment for life, the Special Court would have no
jurisdiction to grant bail."
6.5. In this context we also find it to refer to decision of the
Supreme Court in the case of Thwaha Fasal (seventh supra),
paragraph Nos. 22 and 23 of which
"22. After considering the law laid down by this Court in
various decisions including the decision in the case of
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra,
in paragraphs 24 and 25 it was held thus:-
24. A priori, the exercise to be undertaken by
the Court at this stage-of giving reasons for
grant or non-grant of bail-is markedly different
from discussing merits or demerits of the
evidence. The elaborate examination or
dissection of the evidence is not required to be
done at this stage. The Court is merely
Appel.289.22.doc
expected to record a finding on the basis of
broad probabilities 7 (2005) 5 SCC 294
regarding the involvement of the accused in
the commission of the stated offence or
otherwise.
25. From the analysis of the impugned
judgment, it appears to us that the High Court
has ventured into an area of examining the
merits and demerits of the evidence. For, it
noted that the evidence in the form of
statements of witnesses under Section 161 are
not admissible. Further, the documents pressed
into service by the investigating agency were
not admissible in evidence. It also noted that it
was unlikely that the document had been
recovered from the residence of Ghulam
Mohammad Bhatt till 16-8-2017 (para 61 of
the impugned judgment). Similarly, the
approach of the High Court in completely
discarding the statements of the protected
witnesses recorded Under Section 164 CrPC,
on the specious ground that the same was kept
in a sealed cover and was not even perused by
the Designated Court and also because
reference to such statements having been
recorded was not found in the charge-sheet
already filed against the respondent is, in our
opinion, in complete disregard of the duty of
the Court to record its opinion that the
accusation made against the accused
concerned is prima facie true or otherwise.
That opinion must be reached by the Court not
only in reference to the accusation in the FIR
but also in reference to the contents of the case
diary and including the charge-sheet (report
under Section 173 CrPC) and other material
gathered by the investigating agency during
investigation."
(emphasis added)
20. Therefore, while deciding a bail petition filed by an
accused against whom offences under Chapters IV and VI
of the 1967 Act have been alleged, the Court has to
consider whether there are reasonable grounds for
believing that the accusation against the accused is prima
facie true. If the Court is satisfied after examining the
material on record that there are no reasonable grounds
for believing that the accusation against the accused is
prima facie true, then the accused is entitled to bail. Thus,
the scope of inquiry is to decide whether prima facie
material is available against the accused of commission of
the offences alleged under Chapters IV and VI. The
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grounds for believing that the accusation against the
accused is prima facie true must be reasonable grounds.
However, the Court while examining the issue of prima
facie case as required by sub-section (5) of Section 43D is
not expected to hold a mini trial. The Court is not
supposed to examine the merits and demerits of the
evidence. If a charge sheet is already filed, the Court has to
examine the material forming a part of charge sheet for
deciding the issue whether there are reasonable grounds
for believing that the accusation against such a person is
prima facie true. While doing so, the Court has to take the
material in the charge sheet as it is."
6.6. He therefore submitted that considering the aforementioned
settled law, this Court is merely expected to record its finding on the
basis of broad probabilities regarding involvement of Appellant and
record its opinion. That in the present case there is no material
brought on record by prosecution to indict Appellant and show her
having any nexus with the banned CPI(M) as also her role and
involvement in the 'Elgar Parishad' event held on 31.12.2017 which
led to public violence on the following day. In respect of her role in
the alleged conspiracy is concerned he has drawn our attention to the
broad principles governing the law of conspiracy enunciated by the
Supreme Court in the case of State Vs. Nalini (sixteenth supra) and
submitted that in so far as Appellant is concerned, the evidence
collated and recovered by prosecution does not make out a case for
conspiracy against Appellant. That there is no nexus of Appellant or
meeting of minds of Appellant with any of the other co-accused which
can be proved through the material recovered and seized by
prosecution. That the ingredients stipulated by the Supreme Court are
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clearly missing in so far as Appellant is concerned. That mere
participation and shouting slogans in the 'Elgar Parishad' event by
itself does not amount to conspiracy and she does not get linked to
any terrorist act. That mere participation in the event where there
were other participants who had also shouted the same slogans and
participated in the skit/play would not amount to any incriminating
act done by her to destabilize the country as prima facie there is no
material evidence produced by prosecution to allege that Appellant is
a part of a larger conspiracy of any terrorist / organisation act and
therefore her indictment under the stringent provisions of Sections 16
and 18 of the UAP Act is completely unwarranted. That at the highest
Appellant can be charged under the provisions of Sections 38 and 39
of the said Act. That application of the provisions of Section 15 of the
said Act is a grave and serious offence and it will have to be shown on
the basis of incriminating material and evidence that Appellant was
linked to the act of terror or conspiracy. That participation in the
'Elgar Parishad' event of 31.12.2017 cannot be deemed to be an act of
terror. That in fact, the participants in 'Elgar Parishad' event had
pledged their support to the Constitution of India at the end of the
program. That Appellant has been incarcerated in jail for more than 2
years after her arrest. That according to prosecution there are more
than 250 witnesses in the present case and therefore it will be a
lengthy trial and hence in view thereof the Appellant deserves to be
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enlarged on bail.
7. PER-CONTRA, Mr. Sandesh Patil, learned Advocate
appearing for Respondent No.1 - NIA has opposed the appeal and
made the following submissions:-
7.1. That Appellant is an active member of CPI (Maoist), a
banned terrorist organization under Entry/Serial No.34 in the first
scheduled to the UAP Act. That Appellant is an active member of KKM
and on the date of the event i.e. 31.12.2017, Appellant was specifically
involved in raising provocative slogans through the performances by
KKM members which led to disturbing communal harmony.
7.2. That they performed skit/stage play in the 'Elgar Parishad'
event, as a result of which there were incidents of violence, arson,
stone pelting and death of an innocent person, near Bhima Koregaon,
Pune on 01.01.2018.
7.3. that the prosecution has recovered and seized incriminating
documents from Appellant in the present crime and on its basis it is
proven that Appellant is a member of the banned CPI (M) which made
inroads into 'Elgar Parishad' movement with the ulterior motive to
destabilize the secular fabric of the country; that one of the important
documents seized from accused is a document titled 'Special Social
Sections and Nationalities-Our Tactics', wherein it is mentioned that,
"Women, dalits, adivasis and religious minorities are the most
important of the social sections to be taken cognisance of by the party
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of the proletariat leading the revolution in the concrete conditions
prevailing in India. All these sections have special problems of their
own and specific types of extra-economic oppression apart from the
class-oppression. We have to pay due attention to solve their special
problem and to chalk out special tasks to mobilise them effectively into
the revolutionary movement. Towards this end, we have to not only
bring these sections into class organizations along with other
oppressed masses, but also evolve the necessary forms of organizations
and form of struggle for the widest mobilization of these sections on
their special problems both on a short term and long-term basis.
Broader joint fronts too should be formed wherever and whenever
necessary to address the specific grievances." That it is evident from
this seizure that, CPI (M) made inroads into the "Elgar Parishad" event
according to a well deliberated tactical measure. That other arrested
accused viz; Sudhir Dhawale & others including Appellant formed a
broader joint united front on similar lines which is evident from one
other letter recovered from one Narmadakka, CCM of CPI (Maoist),
who stands chargesheeted and is accused in another case.
7.4. Next Mr. Patil referred to a compilation of the relevant
documents against Appellant forming part of chargesheet filed by
prosecution in the present case. Considering that the chargesheet runs
into several thousand pages, in so far as the present Appeal is
concerned, he collated the relevant pages/incriminating material to
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highlight and outline the role of Appellant. He has drawn our
attention to the letter dated July 2017 written in telugu language and
its ture translation which forms part of the chargesheet. This letter is
that page No.106 of the compilation. It has been addressed by one
Sridhar to Com. Sunil and in the contents thereof, accused No.1
Suhdir Dhawale and his role as leader in Maharashtra is prominently
named.
7.5. Next he has referred to paragraph No.17.22 of the
chargesheet on page 113 of the Memorandum of Appeal wherein it is
stated as under:
"17.22. During the investigation, it is revealed that, Kabir
Kala Manch (KKM) is a frontal organization of CPI (Maoist).
KKM was formed somewhere in 2002 and indulged in street
plays, cultural activities, poetry reading etc. The accused in
instant crime namely Sagar Gorkhe & Ramesh Gaichor has been
associated with KKM since 2003. In 2005, CPI (Maoist)
systematically entered in KKM in such a way that the operation
goes unnoticed. Further, members of KKM are systematically
furthering the ideology of CPI (Maoist) since 2005 which has
also been revealed in ATS PS Mumbai CR No.19/2011 registered
under Sections 387, 419, 465, 468, 120B of IPC, Section 10, 13,
17, 18, 18A, 18B, 20, 21, 38, 39 and 40 of the UAP Act."
7.6. Next, to substantiate the multiple charges that Appellant was
actively involved in organising the "Elgar Parishad" event; that
Appellant was actively involved with other co-accused and members of
KKM; that KKM is the frontal organization of the banned terrorist
organization CPI (M); that Appellant had received arms/weapons
training in the forest camp of CPI(M) in the past, he has referred to
the following incriminating material:-
Appel.289.22.doc
(i) Statement given by KW-3 under Section 164 Cr.P.C.
dated 17.08.2020;
(ii) Statement given by KW-4 recorded under Section 161
Cr.P.C. dated 24.08.2020;
(iii) House search panchnama of the raid conducted in the
house of Appellant on 12.09.2020;
(iv) Statement of Kishor Madhukar Kamble recorded under
Section 164 dated 11.06.2018;
(v) Statement of Datta Pol recorded under Section 164
dated 12.06.2018;
(vi) Statement of Ulka Mahajan recorded under Section 164
dated 29.09.2020;
(vii) Statement of Dr. Sangram Bamne recorded under
Section 164 dated 24.09.2020;
(viii)Pamphlet of Elgar Parishad Meeting dated 01.01.2018;
(ix) Report of meeting held at Dadar, Mumbai on
24.09.2017; and
(x) Judgment dated 19.09.2022 passed in Criminal Appeal
No. 351/2022 in the case of Hany Babu (Accused No.
12) Vs. National Investigation Agency and Anr. in
respect of the same Special Case No. 414 of 2022.
7.7. Mr. Patil has taken us through the contents of the aforesaid
material and contended that the role of Appellant cannot be
segregated separately as argued by Appellant. He submitted that the
material recovered and seized from Appellant as well as other co-
accused in the present case clearly lead to a larger conspiracy and
design wherein Appellant is actively involved in the activities of KKM
since long. That KKM is the frontal organization of banned CPI(M), a
terrorist organization under the UAP Act. He submitted that Appellant
has a direct nexus with wanted accused and members of CPI(M) who
Appel.289.22.doc
are co-accused in the present crime. The offences invoked against
Appellant carry maximum life or death penalty punishment. He
submitted that the provisions of Section 43-D(5) of UAP Act would
require this Court to proceed on the basis of the material collected
during investigation. He submitted that investigation in the present
case has revealed that Elgar Parishad event was used to establish
underground contacts with the banned terrorist organization CPI(M)
through its activists, Appellant being one of them. He submitted that
Appellant played a major role in organizing the 'Elgar Parishad' event
which is evident from the material seized and thus is involved in
directly propagating activities of CPI(M). Hence, he has submitted
that there is no infirmity in the order passed by the learned Special
Judge in rejecting the bail application of Appellant and the present
Appeal be dismissed.
8. At this stage it would be apposite at this stage to refer to the
provision of Section 43-D(5) of the UAP Act, which is the relevant
provision for the decision of the present case. It reads thus:-
"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
Appel.289.22.doc
own bond unless the Public Prosecutor has been given an
opportunity of being heard on the application for such
release:
Provided that such accused person shall not be released on
bail or on his own bond if the Court, on a perusal of the
case diary or the report made under Section 173 of the
Code, is of the opinion that there are reasonable grounds
for believing that the accusation against such person is
prima facie true.
(6) The restrictions on granting of bail specified in sub-section
(5) is in addition to the restrictions under the Code or any
other law for the time being in force on granting of bail.
(7) ....."
(emphasis supplied)
8.1. As alluded to herein above, the Supreme Court in the case of
Watali (first supra) has held that at this stage, as is the Appellant's
case, it is not the duty of the Court to weigh the evidence meticulously
but to arrive at a finding based on broad probabilities. We have
carefully perused the material available on record. Hence in order to
record our findings based on broad probabilities regarding
involvement of Appellant in the present crime, we would now propose
to consider the material relied upon by the prosecution against
Appellant. Prima facie, after going through the material on record, we
find that there are reasonable grounds for believing that the
allegations / accusations against Appellant are true. However we
hasten to clarify and elaborate our reasons for the same, based on
broad probabilities. Our observations have been made in the context
of the provisions of Section 43-D(5) of the UAP Act.
Appel.289.22.doc
9. We now propose to deal with the material pressed by
Respondent No. 1 - NIA before us against the Appellant and her role
in the present crime on the basis of the documents referred to in
paragraph 7.4 herein above.
9.1. Statement recorded on 17.08.2020 of KW-3 by NIA under
Section 164 Cr.P.C. (appearing on page 213 of the Memo of Appeal)
states that between 2010 and 2015, Appellant was actively involved in
working with CPI(M), the banned terrorist organization. Witness has
stated that in the year 2011 after arrest of Angela i.e. wife of CCM
Milind Teltumbde, the naxalites working under the banner of KKM in
Pune urban region felt leaderless and hence for seeking guidance, all
naxalite members working under the banner of KKM visited Korchi
Area Committee Jungle to meet Milind Teltumbde. Witness has stated
that these naxalite members comprised of Sachin Mali, Sheetal Sathye,
Sagar Gorkhe (Accused No. 13), Ramesh Gaichor (Accused No. 14),
Jyoti Jagtap (Appellant) and Others. That after receiving directions
and orders from CCM Milind Teltumbde, they returned. This
statement establishes the presence of Appellant in the meeting with
the naxalites in 2011. It is pertinent to note that KW-3 has stated that
in the year 2012, another meeting was held in Korchi Area Committee
Jungle which was attended by Sagar Gorkhe, Ramesh Gaichor and
Rupali Jadhav since Sachin Mali and Sheetal Sathe had left the party
Appel.289.22.doc
and in this meeting directions were sought for running the party in
western Maharashtra by them. However this meeting was not
attended by Appellant. The reason to mention about this meeting is
because of the fact that Appellant is an active member of KKM in Pune
and Western Maharashtra and close to co-accused Ramesh Gaichor
and Sagar Gorkhe.
9.2. Statement recorded on 24.08.2020 of KW-4 by NIA under
Section 164 Cr.P.C. (appearing on page 223 of the Memo of Appeal)
states that Appellant along with urban naxal members namely Smt.
Manju Vijay, Arun Ferreira for Mumbai area, Angela wife of Milind
Teltumbde from Pune area, members of KKM namely Ramesh Gaichor,
Sagar Gorkhe, Jyoti Jagtap (Appellant), Sheetal Sathe, Sachin Mali,
Rupali jadhav, Harshali Potdar, Surendra Gadling, Jagdish Meshram,
Vernon Gonsalves, Gautam Navlakha, Varavara Rao, Prof. Shoma Sen,
Rona Wilson, Prof. Sai Baba, Sudha Bharadwaj, Vira Satidar, Sudhir
Dhawale, Mahesh Raut in 2010-11 and 2012 had come to meet Milind
Teltumbde for discussing urban work of CPI(M) in the Jungle area
and they all underwent arms/weapons and explosives training and
awareness programme on various topics related to Maoist movement.
Further statement recorded on 25.08.2020 of KW-4 states that
between 2008 and 2018 CCM Milind Teltumbde was looking after the
Jungle and urban area work of CPI(M). That in 2011-12, Maoist
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members looking after the urban area from Pune namely Ramesh
Gaichor, Sagar Gorkhe, Rupali Jadhav, Jyoti Jagtap (Appellant),
Sachin Mali, Sheetal Sathe visited Gadchiroli in the Korchi
Khobramendha Jungle for attending a meeting (Parisamwad) and met
Milind Teltumbde. At that time these persons stayed in the jungle for
5-6 months and underwent weapons and explosives training. This
statement once again establishes the active presence of Appellant with
the naxalite movement and its core members. Hence the submission
made by Mr. Desai that, assuming whilst denying, at the highest even
if Appellant may have visited the Jungle / Forest area in 2011-12, it
should be attributable to her youthful exuberance cannot be
countenanced.
9.3. House search panchnama dated 12.09.2020 of Room No.
56/2/1, Lane No. 31, Dagdi Chawl, NIBM Road, Kondwa, Pune,
residence of Appellant (appearing on page No. 178 of the Memo of
Appeal) refers to seizure of various documents, prominent amongst
which is a zerox copy of Shaniwarwada Elgar Parishad account and
another hand written letter addressed to one Sudhir dated 26.05.2019
which mentions the name "Gadling" in the said letter. The eight pages
of Shaniwarwada Elgar Parishad account have been tendered across
the bar by Mr. Patil. They form part of charge-sheet. The same is
taken on record and marked "X" for identification. Perusal of the said
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account statement clearly reveals that Appellant was looking after the
entire account of income and expenditure of the Elgar Parishad event
from 02.10.2016. It is a detailed account of the entire income
received, funds received and expenditure incurred, maintained by
Appellant. The summary of account in the statement states that
against the total income of Rs. 3,83,790/-, there was an expenditure of
3,50,170/- for the Shaniwarwada event. This accounting document
negates the argument of Appellant that she was merely a member of
KKM who had gone to the event to perform and shout slogans just like
others at the event when it is now revealed that her role in organizing
the Elgar Parishad event was much more and she was actively
involved in the same since she maintained the entire income and
expenditure account of the event.
9.4. Statement recorded on 11.06.2018 of Mr. Kishor Manohar
Kamble by NIA under Section 164 Cr.P.C. (appearing on page 242 of
the Memo of Appeal) states that Appellant along with other members
of KKM attended the meeting in the first week of October 2017 at
Panmala, Buddhavihar for organizational purpose of Elgar Parishad
event and within one month thereof, Appellant herself gave a phone
call and met him personally, coordinated with him and persuaded him
to attend the Elgar Parishad event. The said statement further states
that Jyoti Jagtap (Appellant) had participated in various other
Appel.289.22.doc
meetings in respect of organization of Elgar Parishad event actively.
9.5. Statement recorded on 12.06.2018 of Mr. Datta Pol by NIA
under Section 164 Cr.P.C. (appearing on page 246 of the Memo of
Appeal) states that Jyoti Jagtap (Appellant) along with Sagar Gorkhe
and Ramesh Gaichor was involved in organizing the Elgar Parishad
event, attended preparatory meetings; that he deposited Rs. 10,000/-
with Ramesh Gaichor for the purpose of mandap, speaker and lights
for the event.
9.6. Statement recorded on 29.09.2020 of Ms. Ulka Mahajan by
NIA under Section 164 Cr.P.C. (appearing on page 251 of the Memo of
Appeal) states that Jyoti Jagtap (Appellant) was actively involved in
coordinating with her and invited her to attend the Elgar Parishad
event.
9.7. Statement recorded on 24.09.2020 of Dr. Sangram Bamne
by NIA under Section 164 Cr.P.C. (appearing on page 255 of the
Memo of Appeal) states that he had attended the long march
programme by KKM members including Ramesh Gaichor, Sagar
Gorkhe and Jyoti Jagtap (Appellant). He has stated that on
12.11.2017, a State level meeting was held at Aurangabad under his
presidentship and 50 to 60 representatives of various districts
including Sudhir Dhawale and KKM members Sagar Gorkhe, Ramesh
Gaichor and Jyoti Jagtap were present in the said meeting wherein
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discussion on fund collection and distribution, review of district level
meeting, long march, publication of book namely 'Bheema Koregaon
Shauryadin' etc was made. He has further stated that the programme
started at 03:00 p.m. and ended at 10:30 p.m.. That the song and
performance by Sagar Gorkhe, Ramesh Gaichor, Jyoti Jagtap
(Appellant), Rupali Jadhav and other KKM members was aggressive in
nature and they also performed a street play at the Elgar Parishad
event. Thereafter final speech was delivered by Prakash Ambedkar
wherein he appealed to donate for Elgar Parishad programme and
members of Pune District Committee collected the funds donated by
public present in the said programme in cash by moving a jholi (large
cloth) and Rs. 2-2.50 lacs was collected.
9.8. We have carefully gone through the transcript of the stage
play enacted by KKM members. The entire transcript is placed at Page
Nos. 160 to 165 and is part of chargesheet. On reading the same, we
are afraid to state that the role played by KKM and its activists on the
date of event was not only aggressive, but also highly provocative and
clearly designed to incite hatred and ignite passion. There are a
number of innuendos in the text / words / performance of KKM which
are pointed directly against the democratically elected government, for
seeking to overthrow the government, ridicule the government,
excerpts of which need to be mentioned here in order to highlight the
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role of Appellant. These pertain to songs / phrases / questions asked
and answers given and performance ridiculing phrases like; "Acche
din", "Gomutra", "Shakahar", "the Prime-Minister referred to as an
"infant", "the P.M.'s travelogy", "RSS dress/outfit", "Policies like
Demonetization", "Sanatan Dharma", "Ram Mandir", "that Shivaji
Maharaj being vehemently opposed to Muslims", "that Tipu Sultan
being against Hindus and he committed murders of Hindus and
brought down temples", "that Constitution is not the highest
document, but according to Golwalkar Guruji it is Manusmruti",
"Behaviour and atrocities of Peshwas towards Dalits", "Treatment and
nomenclature of Dalit women by Peshwas", "Atrocities on Dalits in
today's India". KKM admittedly performed and incited hatred and
passion by performing on the above agenda in the Elgar Parishad
event. There is thus definitely a larger conspiracy within the Elgar
Parishad conspiracy by KKM and CPI(M).
9.9. Mr. Patil has also referred to one document found in the
hard-disk marked as Ex-7 of CyP170/2018 of Ramesh Gaichor
(Accused No. 14) at page Nos. 315 to 334 which contains the report of
meeting held on 24.09.2017 at Dadar, Mumbai for the purpose of
organizing the Elgar Parishad event. In this document, Jyoti Jagtap
(Appellant)'s name prominently figures as the representative in the
committee for western Maharashtra region along with 12 others.
Appel.289.22.doc
Another document recovered from the hard-disk Ex-7 of CyP170/2018
from Ramesh Gaichor relied upon by prosecution is the pamphlet of
invitation for the Bhima Koregaon Shauryadin i.e. Elgar Parishad
event. The invite clearly mentions the name of Jyoti Jagtap
(Appellant) as one of the invitee as also the contact person along with
the names of Sagar Gorkhe, Ramesh Gaichor who are active members
of KKM as also three other persons. Hence her participation in the
event was not merely restricted to her performance but was part of a
larger conspiracy of CPI(M).
9.10. Admittedly, all the aforesaid documents form part of
chargesheet and no objection is raised by the Appellant.
9.11. In respect of the larger conspiracy and design of CPI(M) to
infiltrate and carry out its objectives through KKM and activists like
the Appellant, we also deem it fit to reproduce certain relevant
paragraphs from the Judgment dated 19.09.2022 in the case of Hany
Babu (Accused No. 12) (supra) passed by a coordinate bench of this
Court while rejecting the bail application of Accused No. 12 in the
same crime.
9.12. Contents of paragraph Nos. 7.1 to 7.10 and 8 are directly
and immediately relevant to unearth the larger conspiracy and read
thus:-
"7.1 CPI (Maoist) is a merger of the Communist Party of
Appel.289.22.doc
India (Marxist-Leninist), the People's War (People's War
Group), and the Maoist Communist Centre of India (MCC).
CPI (Maoist) was notified as a terrorist organisation on 22
June 2009 under UAP Act.
7.2. The objectives and goals of CPI (Maoist) are to
engage in revolution supported by a commitment to
protracted armed struggle. The eventual objective is to
establish a 'people's government' by undermining and
seizing power from the State. The Communist Party of
India (Marxist-Leninist)- People's War with its formation
and front organisations are banned under the UAP Act and
are designated as terrorist organisations.
7.3 CPI (Maoist) works systematically. It has a party
constitution and hierarchical system with the decisions
taken by a Politburo. The Central Committee receives
commands from the Politburo, which are sent to the
members as per the hierarchy. The Central Military
Commission is the main armed body of the CPI (Maoist). It
has regional bureaus such as State Committees, Zonal
Committees, District Committees and armed squads. The
task of these organisations is to attack Government forces.
The Central Technical Committee (CTC) is responsible for
assembling and creating weapons from explosives looted
by attacking the Government armed forces. The CPI
(Maoist) has formulated some primary documents in its
Unit Congress. These are: 'Constitution of the Party'; 'Party
Program'; 'Strategy and Tactics of the India Revolution';
'Holding High the Bright Red Banner of M.L.M.'; and
'Political Resolution'. As per the core documents, the main
task is to seize political power to annihilate the armed
forces of the State through war, mobilising the people on a
large scale, both militarily and politically; the CPI (Maoist)
Politburo, Central Committee and People's Army (PLGA),
and United Front (a frontal organisation) will coordinate
the armed struggle, which will be the main form of
struggle.
7.4 According to the CPI (Maoist), a unified front and
armed struggle are the primary weapons for defeating 'the
enemy' and storming and shattering the 'enemy's position
(the enemy being the Indian State). The CPI (Maoist) is
working to assimilate the unemployed youth living in
impoverished rural and urban areas, teachers, intellectuals
and employees in other fields into the party organisation.
The revolutionary front of CPI (Maoist) is the primary
entity undertaking revolutionary movements and
countering campaigns carried out by the security forces of
the State. Under the pretext of democratic rights
organisations, under the directions of CPI (Maoist),
adverse reports are published directly affecting the anti-
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Naxal operations carried out by the State security forces.
7.5 The CPI (Maoist) has planned a detailed strategy and
programmes to unite the struggles of various oppressed
nationalities into a common fighting united front against
the Indian State. The documents seized from the accused
refer to urban movement and military task and the urban
movement being complementary to rural armed struggle.
The movement involves sending cadres to the countryside,
infiltrating enemy ranks, organisations in critical
industries, sabotaging actions in coordination with rural
armed struggle and generating intellectual support.
7.6 the CPI (Maoist) has established executive
committees to work according to the revolutionary
objective. The mass organisation has been divided into
three sectors- Underground Revolutionary Mass
Organizations, 'Open and Semi-open Revolutionary Mass
Organizations' and 'Mass Organizations not directly linked
to any party'- under such cover-up as Elgar Parishad at
Pune. Mass Organisations not directly linked to the party
are subdivided into three categories- 'Fractional Work',
'Party Formed Cover Organization', and 'Legal Democratic
Organization'. Some methods include creating activist
groups at the factories, mines, industrial estates, offices,
branches, or any other level that is a unit for organising.
Activist groups are to be formed in slums, chawls, streets,
societies that are residential areas and also educational
institutions. Party Cells will include organising masses,
politicising, educating and recruiting them into the party.
Party Fractions are non-party organisations that ensure
that members within the organisations pursue uniform
tactics.
7.7 The literature of CPI (Maoist) refers to the military
task of the urban movement as secondary and
complementary to the military strategy of the revolution.
The urban organisations are to perform tasks
complementary to the rural armed struggle. The military
tasks performed in the urban areas are about the defence
of the urban movement, helped by the urban organisation
to the rural armed struggle and direct military operations
conducted under a central direction. Elaborate means of
personal communication using couriers and precautions to
be taken during communications and meetings are
evolved.
7.8 The CPI (Maoist) operates in secret, and important
communications are made through couriers and the
appointment channel. One of the CPI (Maoist) agendas is
to keep the cadre's morale high. Systematic support is
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offered from the frontal organisations to Naxals and their
families. The Revolutionary Democratic Front (RDF), a
banned organisation, is active in this endeavour. RDF
organises conferences and fact-finding missions. The
accused are also active members of other frontal
organisations, namely, Anuradha Ghandy Memorial
Committee, Kabir Kala Manch, Presecuted Prisoners
Solidarity Committee, Committee for release of political
prisoners. Committee for Protection of Democratic Rights,
Peoples Union for Democratic Rights, Coordination of
Democratic Rights Organization, Democratic Students
Union, Visthapan Virodhi Jan Vikas Aandolan,
Revolutionary Writers Association, Committee for defence
and release of G.N. Saibaba.
7.9 CPI (Maoist) does not believe in peace talks but only
in protracted armed struggles. CPI (Maoist) has attacked
and killed various government officials and looted
weapons and explosives. CPI (Maoist) raises funds for
unlawful activities by levying taxes on Tendu leaves,
Bambu and road contractors. To keep their identity secret,
they use different alias names. CPI(Maoist), frontal
organisation members procure gelatin from illegal mining
contractors, use Soda-Sulphur combination as explosive,
and use Calcium-Ammonium Nitrate for carrying out
attacks on the forces of the State. The accused are involved
in procuring weapons and ammunition from Maoist in
Nepal situated abroad through the 'Manipur Maoist'
channel.
7.10 The policy of CPI (Maoist) is to exploit the
discontent amongst the weaker sections to propagate
hardcore Maoist philosophy of violence to drive them on
the path of violence. As a part of pursuing this policy,
street plays leading to incidents such as one in Bhima-
Koregaon resulting in arson, violence and the death of one
person are deliberately undertaken.
8. This, according to NIA, broadly is the outline of the
aims and objects of CPI (Maoist) and the conspiracy and
that the Appellant is part of the same According to NIA,
these objectives are being implemented by the Appellant,
and his role must be seen in the context of this larger
canvas and not in isolation."
9.13. In the above context, we are also inclined to refer to certain
documents which have been recovered from Accused No. 12 in the
present crime. These documents would show and highlight the
Appel.289.22.doc
desired objective of CPI(M) which has been referred to in the aforesaid
judgment. We find it necessary and important to refer to these
documents since they highlight the role of the CPI(M) in attempting to
destabilize our country by carrying out killings methodically and
engage in armed conflict. We reproduce paragraph Nos. 30, 31, 38
and 41 from the above judgment (Hany Babu) which we find most
relevant to rely upon, to highlight the role of the co-accused in the
present crime.
"30. Next document seized from the Appellant is a file 2
inch by Ramananna-H.pdf. It is about integrated weapon
training. It refers to 50.8 M.M. Mortar and how the same
is being handled. It will have to be dealt with by two
persons, and one jawan cannot do it. There is a detailed
analysis of the functioning of these weapons, such as
progressive weapon training. There is a statement of
ammunition. It also refers to identifying the use of high
explosives, how to identify the bombs, the procedure of
misfire, para illuminating bombs, and how to deal with 2-
inch mortar, smoke, illuminating and signal bombs.
31. Another document recovered from the Appellant is
A.C-G-B.pdf, a guidebook for the Area Committee
Members. It deals with the area committees' consolidation
of the party network. It deals with the flag protocol and
important dates of the revolution. It says that 26 January
and 15 August days are to be treated as Black days. One
of the documents seized from the Appellant is regarding
internet security and how to secure communications. AJ
SS-1- Indian Army-English.pdf is issued by the Central
Committee (Provisional) CPI (Maoist) Party under the
Awam-E-Jung Study Series -1, a review and study of the
Indian Army. BJ-SAC- RE.pdf is about Bihar-Jharkhand
Special Area Committee and its functioning and work.
38. File Lr2 SIC-Oct-2016.pdf. seized from the Appellant
is a communication issued by Varavara (Accused) to
comrades wherein it states the information given in
confidentiality about the topics raised by comrade Rona
(Rona Wilson) (Accused No.2), comrade Sudhir (Accused)
and comrade Varavar (Accused) in a meeting held on 26
September in New Delhi and states that in that context
that the information was being given. It refers to political
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parties, fascist movements and attacks on the party. It is
necessary to restore the comrades' confidence and remove
fear psychosis that a significant event targeting prominent
personalities has been felt necessary. It refers to elections
in Uttar Pradesh and Punjab where political figures keep
coming. It also refers to arms struggle in the forest areas
to improve the comrades' confidence. Then it refers to
meetings held by senior political leaders such as Shri
Narendra Modi, Shri Amit Shah and Shri Rajnath Singh
and laying a booby trap in respect of the same. It also
refers to coverage by international media which would
increase the comrades' confidence.
44. HDD Laptop Cyp 168/18 Ex. 17/1 Ltr_2_RW Cyp
168/18 Ex. 17/1\Rback up\453 is communication
between R (Rona Wilson) (Accused No.2) and comrade
Prakash (Ritupan Goswami) (WA-2), which refers to a
letter of Prakash (Ritupan Goswami) (WA-2), and it says
that Arun (Arun Ferreira) (Accused No.8) and Vernon
(Vernon Gonsalves) (Accused-7) and others are concerned
with the struggle that is taking shape on the urban front.
It refers to issues raised by comrade Saibaba. Then it
refers to HB (Appellant) being given all the
responsibilities to coordinate programmes and protests to
raise public opinion and organise a programme under the
banner committee for the defence and release of G.N.
Saibaba. Rona Wilson (Accused No.2) has mentioned in
this letter that she has spoken that by now, Prakash
(Ritupan Goswami) (WA-2) has received details of the
meeting and requirement of 8 Crores for annual supply of
M4 with 400000 rounds. The learned ASG informs that
M4 is a weapon. It is also stated therein that defeating
Hindu fascism is a core agenda and a major concern for
the party. It refers that comrades and other senior
Comrades have proposed to take concrete steps to end the
"Modi -Raj". It is stated that "we" are thinking along the
lines of another "Rajiv Gandhi-type incident", and
targeting "his" road shows could be an effective strategy."
10. Thus, it is seen from the totality of the entire material
presented before us that Appellant's role cannot be segregated or
separated and it will have to be seen in the light of the charge of
conspiracy of the entire case put forth by the NIA. The documents
referred to herein above clearly highlights the active role of Appellant
in so far as organizing the Elgar Parishad event but more importantly
Appel.289.22.doc
it is the association of Appellant with the prominent members of
CPI(M) which is a designated terrorist organization which cannot be
lost sight of. It is seen that Appellant was in active touch with all
other co-accused working for different mask organizations to further
the objectives of CPI(M). The Elgar Parishad event is thus a smaller
conspiracy within the larger design and conspiracy of CPI(M) to
further its agenda. From one of the letters it is seen that there is a
congratulatory message given for the success of the Elgar Parishad
event and a direction is issued to exploit the death of the youth in the
violence on the following day. It is also seen that CPI(M) has chalked
out a detailed strategy for furtherance of its objective to overthrow the
democratically elected government of our country and the Appellant
and other co-accused are prima facie actively strategising the same.
The entire material produced before us by NIA clearly shows that the
Elgar Parishad event was used and organized to establish underground
contact with the banned terrorist organization CPI(M) through its
activist which include the Appellant. It is seen that pursuant to the
said programme, there was large scale violence resulting in unrest and
death of one person.
11. In view of having considered the totality of the entire
material on record as alluded to herein above, we are of the
considered opinion that there are reasonable grounds for believing the
Appel.289.22.doc
allegations / accusation of the NIA against Appellant having conspired,
attempted, advocated and abated the commission of a terrorist act as
prima facie true.
12. From the seriousness of the conspiracy and the threat that it
poses, we are of the considered view that submissions made on behalf
of the Appellant cannot be accepted. We do not find any infirmity or
error in the order passed by the learned Special Judge rejecting the
bail application of Appellant. Considering the materiel on record and
in view of the above discussion and findings, the Appeal stands
dismissed.
[ MILIND N. JADHAV, J. ] [A. S. GADKARI, J.]
Digitally signed
by RAVINDRA
RAVINDRA MOHAN
MOHAN AMBERKAR
AMBERKAR Date:
2022.10.17
17:13:10 +0530
