Bombay High Court
Surendra S/O Pundalik Gadling vs State Of Mah. Thr. Pso Etapalli Ps ... on 31 January, 2023
Bench: Vinay Joshi, Valmiki Sa Menezes
J-APEAL-294-2022.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.294 OF 2022
APPELLANT : Adv. Surendra S/o Pundalik Gadling,
Aged - 55 Years, Occ: Legal
Practitioner R/O. 79, Misal Lay Out,
Bhim Chowk, Jaripatka Police Station,
Nagpur, At Present Lodged at 4/41,
Anda Cell, Taloja Central Prison, New
Mumbai.
..VERSUS..
RESPONDENT : State of Maharashtra,
Through, P.S.O. Etapalli, P.S. Etapalli,
Tahsil- Aheri, Distt. Gadchiroli
-----------------------------------------------------------------------------------------
Shri Firdos T. Mirza, Advocate with Nihalsing B. Rathod, Advocate for Appellant.
Shri Neeraj B. Jawade, Special Public Prosecutor for Respondent/State.
--------------------------------------------------------------------------------------------------------
CORAM : VINAY JOSHI AND
VALMIKI SA MENEZES, JJ.
RESERVED ON : 5th JANUARY, 2023.
PRONOUNCED ON : 31st JANUARY, 2023.
JUDGMENT : (PER : VALMIKI SA MENEZES, J.)
. Heard. Admit.
2. By consent of the learned Counsel appearing for
the parties, this Criminal Appeal is taken up for final hearing.
J-APEAL-294-2022.odt
3. By this appeal, filed under Section 21(4) of the
National Investigation Agency Act, 2008 ("NIA Act"), the
Appellant has challenged judgment and order dated
28.03.2022, passed by the Sessions Court, Gadchiroli, in
Sessions Case No.99/2019 (State of Maharashtra, Through
P.S.O. Police Station, Etapalli, District : Gadchiroli ..V/s..
Surendra Pundlik Gadling and others), refusing regular bail
to the Appellant, who is accused No.1 in that Trial.
4. Sessions Case No.99 of 2019 was registered upon
filing final report dated 29.05.2019 under Section 173 of the
Code of Criminal Procedure, 1973 ("CrPC").
The facts, as seen from the charge-sheet filed by
the NIA, are as follows :
4.1 The First Information Report ("FIR") came to be
registered as Crime No.35 of 2016, with Police Station,
Etapalli, Tahasil Aheri, District Gadchiroli, under Sections
307, 341, 342, 435, 323, 504, 506, 143, 147, 148, 149 and
120(B) of the Indian Penal Code, 1860 ("IPC"), Sections 5
and 28 of the Indian Arms Act, 1959 ("IA Act"), Section 135
J-APEAL-294-2022.odt
of the Maharashtra Police Act, 1951 ("MP Act") and Sections
16, 18, 20 and 23 of the Unlawful Activities (Prevention)
Act, 1967 ("UAP Act").
4.2 It is alleged in the FIR, recorded at the behest of
one Rajvindarsing Harising Shergil, owner and driver of
Truck bearing No.MH-33/4348, that an incident occurred
on 23.12.2016 at around 11:30 a.m. to 15:00 p.m. at Surjagad
Pahadi within the jurisdiction of Etapalli Police Station. The
FIR dated 22.12.2016, discloses that the informant drove his
vehicle via. Alapalli-Etapalli road carrying iron ore. That
around 100 to 150 trucks belonging to various transport
companies named in the FIR, arrived at Surjagad hill, and
since by then it was night time, all truck drivers, including
the complainant were waiting to get permission receipts from
the office of Lyod Metal Company to load iron ore on their
trucks. The complainant further stated that his truck was
followed by other trucks and when they reached at a distance
about one kilometer from Surjagad hill, he saw few of trucks
standing by the side of the road. He stopped his vehicle
behind the queue of trucks and at about 11:30 p.m., he heard
J-APEAL-294-2022.odt
shouting in abusive language with words "Sale Madarchod,
Truck Ke Niche Utaro, Bhagna Nahi, Sale Chodunga Nahi".
The FIR further records that on hearing such abusive
language and on being directed to dismount from the trucks,
he saw the driver of the front truck walking back on foot.
The informant noticed that the men who were in-front of his
truck were holding sticks and axes. They threatened the
informant and other drivers asking them to get down from
the vehicles, upon which he, alongwith the cleaner of his
truck alighted from the vehicle, Some of the armed men in
olive green uniforms were asking all the drivers to alight from
the trucks and all of them were gathered at one place, which
was at a distance about 100 meters away from the main road,
in the forest.
4.3. The informant then states that all the drivers were
gathered and asked to sit down on the ground and warned
not to run lest they would be burnt. The informant noticed
some of the men breaking open the diesel tank of the front
truck and then setting it on fire. It was also alleged that some
of these men used axes and broke the window panes and cut
J-APEAL-294-2022.odt
the tyres of these trucks. These men were addressing each
other in Hindi by name "Ramko" and "Gonglue", while
around 10 to 12 other associates went to the main road and
kept a watch for the police when at that time one of them
replied 'ok Sainath Anna'. The men in green uniforms
requested one amongst them named "Narmadakka" to take
physical search of all the truck drivers, pursuant to which,
one of these men forcibly put his hand into the pocket of the
informant and took out his mobile handset. Likewise all the
mobile handsets of other truck drivers were also taken away.
4.4 It is further alleged that the "Naxals" in olive green
uniform prodded the drivers and cleaners at gun point
pushing them forward and abusing the drivers and cleaners
by uttering words "sale, can't you walk properly". The
"naxalites" forcibly took the drivers and cleaners to the
hilltop, made them sit on the ground in an area, which they
cordoned off, after which, the Chief of the armed assailants
made enquiries about the owners of the transport companies,
which information was provided by the informant and other
truck drivers. The names of the owners of the trucks and of
J-APEAL-294-2022.odt
the transport companies were noted down on a chit by the
assailants. Thereafter, the drivers were made to sit separately
from the cleaners.
4.5. It is then alleged that by that time some of the
trucks parked on the hilly areas were seen burning from a
distance and there was smoke emanating from the burning
trucks. The informant also heard the sound of exploding
tyres.
4.6. It is further alleged that the man was standing
behind the drivers, suddenly started beating the drivers with
a stick saying "does the road belong to your father?, you
people never allow us, motor cycle riders, any space and drive
your trucks over the motorcycle riders."
4.7. It is further alleged that those naxalites assaulted
them with sticks on their chest, hands, back and waist and
some of them were saying "Sainath Anna, shall we burn these
people". The assailants including one man in plain clothes
present at the spot, then attempted to set the drivers on fire
by pouring diesel on their bodies and were saying "Joganna,
J-APEAL-294-2022.odt
Bhashkar Anna, Savita, Tarkka, what is the benefit of burning
the drivers, the owners are different, we will cut them into
pieces and burn them". These assailants then asked one
"Kopa" to come out with his fellow associates. Around 40 to
50 armed naxalites, who were in green uniform came
forward. 60 to 70 other men in plain clothes came out from
the surrounding forest and they all gathered at one place. It is
stated that the naxalites were talking among themselves and
calling out to their comrades, using the above mentioned
names. The Chief of the "naxalites" asked his comrades not
to burn the drivers and out of fear, the drivers and cleaners
took an oath, as dictated to them by the naxalites. Thereafter,
the naxalites instructed them to report the matter to the
Police Station and allowed them to go.
4.8. It was further alleged in the FIR that, at the time of
the incident, armed naxalites, who were in olive green
uniform as well as those in plain clothes were shouting
slogans like "Communist Party Zindabad, Maoist
Organization Zindabad, Lal Salam Zindabad". The
informant noticed that around 39 vehicles including 35
J-APEAL-294-2022.odt
trucks, three Poclain machines and one motorcycle were
burnt, causing huge loss of property. The informant also
alleged that around 40 to 50 armed naxalites in green
uniform alongwith 60 to 70 other men, who were in plain
clothes equipped with arms, held them at gun point and
broke open diesel tanks of the vehicles and set on fire all the
vehicles, causing loss of property.
4.9. The informant then took medical treatment from a
private doctor on 27.12.2016 and reported the incident on
the same day at the Police Station Etapalli. On the basis of
the said report, offences came to be registered in Etapalli
Police Station against the active members of the Communist
Party of India (Maoist) namely Narmadkka, Sainath, Ramko,
Gongalu, Goganna, Bhaskar, Savita, Tarakka, Kopa and 40 to
50 other associates and 60 to 70 persons supporting them
vide Crime No.35 of 2016 registered on 27.12.2016 for the
offences punishable under under Sections 307, 341, 342,
435, 323, 504, 506, 143, 147, 148, 149 and 120(B) of the
Indian Penal Code, 1860, Sections 5 and 28 of the Indian
Arms Act, 1959, Section 135 of the Maharashtra Police Act,
J-APEAL-294-2022.odt
1951 and Sections 16, 18, 20 and 23 of the Unlawful
Activities (Prevention) Act, 1967.
4.10. During the course of the investigation, the Police
visited the spot and prepared a panchanama of the scene of
offence; the Police also seized incriminating articles and
arrested the accused namely Masa Mura Hichami, Lalu
Kehaka Gundru, Irpa Bira Usendi, Thuge Dalsu Hichami
and Dinesh Masu Pungati between 18.01.2017 and
17.02.2017.
4.11. From the charge-sheet, it also transpires that the
Appellant/Applicant was in custody of Vishrambag Police
Station at Pune, in connection with Crime No.4 of 2018, for
allegedly committing offences under the UAP Act and IPC,
and during the course of that investigation, the Pune Police
conducted a search of the house of the Applicant on
17.04.2018. During the search operation, various
incriminating documents and articles were seized from the
house of the Applicant at Pune, under a search panchanama.
The hard-disk of the computer belonging to the Applicant
J-APEAL-294-2022.odt
was also seized during the search. A forensic analysis of the
hard-disk, which was found during the search, revealed
material stored on it showing that the Applicant, alongwith
other co-accused in that case were members of the banned
organization C.P.I. (Maoist). The Investigating Officer in that
case also found from the recovery of the incriminating
material against the Applicant, that the Applicant/accused
provided aid to the naxalites, who were working at the
ground level and that the Applicant had entered into a
conspiracy with various co-accused and absconding accused
in that case, and was involved in the Surjagad incident
alleged in the FIR/charge-sheet in the present case.
4.12. It is further alleged in the charge-sheet that the
investigating machinery found that the Applicant had given
directions to other accused to set the vehicles on fire and
cause loss of property in the Surjagad incident. The material
recovered from the Applicant/accused, according to the
investigation, disclosed that Members of the Maharashtra
State Regional Committee of Maoist had appreciated the
work of the Applicant regarding the incident in question.
J-APEAL-294-2022.odt
4.13. The investigation also unearthed some literature
published in the "Maoist Information Bulletin-34" of the
month of July to December - 2016, which was seized from
the possession of the Applicant. The investigation also
revealed that the Applicant wrote a letter to co-accused in the
Pune case, Varavara Rao, about collection and distribution of
funds to the naxalites. That the accused provided secret
information about Government activities and maps of certain
areas, to the underground naxalites, in order to prompt them
into violent acts.
4.14. It is further the case in the charge-sheet that during
the course of investigation, a witness statement under Section
164 of CrPC, was recorded of one Makbul alias Harsh alias
Atul alias Sudarshan Satyadeo Ramteke, resident of Nagpur,
a naxalite who had surrendered before a Judicial Magistrate
First Class, Aheri, whereat he had stated that the Applicant
and other co-accused in the Vishrambag Pune case, had
directed the underground naxalites to oppose the operation
of Surjagad mines and that the Applicant instigated him
(Sudarshan Ramteke) and other naxalites to join the C.P.I.
J-APEAL-294-2022.odt
(Maoist) movement and to get involved in the activity of
stopping the work of Surjagad mines.
5. It is the case of the Appellant/accused that he was
arrested on 30.01.2019 by the Police Officials of Police
Station Etapalli alleging involvement in Crime No.35 of
2016 registered with Police Station, Etapalli, Tahasil Aheri,
District Gadchiroli, under Sections 307, 341, 342, 435, 323,
504, 506, 143, 147, 148, 149 and 120(B) of the IPC,
Sections 5 and 28 of the IA Act, Section 135 of the MP Act
and Sections 16, 18, 20 and 23 of the UAP Act.
The Appellant has stated in his application that he
is a criminal law practitioner with over 25 years of practice
and has defended several accused, who have been implicated
under UAP Act, TADA, POTA or on sedition charges. The
Applicant claims to be permanent resident of Nagpur
District, the sole bread earner of his family consisting of four
members and has responsibility of educating his two
children. He states that he has no criminal antecedents and
has been falsely implicated in the present case, being a target
J-APEAL-294-2022.odt
of police machinery. He states that his entire work is in
public domain and that he is a law abiding citizen and officer
of this Court.
6. The Applicant further states that out of the five
accused arrested in the present case, accused Nos.3 to 6 and
one Irpa Bira Usendi, who is since deceased, have been
granted regular bail by the Sessions Judge, Gadchiroli, vide
orders dated 18.01.2017, 19.01.2019 15.02.2017
18.02.02017 and 27.03.2017. He has avered that accused
No.2 was granted medical bail on 14.02.2021 by this Court.
That the Applicant is the only person, who is behind bars in
the present case. He states that there is no prima facie case
against him and the evidence brought on record by the
Respondent/State is neither reliable nor admissible.
7. The Applicant further states that after his arrest by
Vishrambag Police, Pune, he was remanded for a period of
12 days to police custody, during which time, he completely
cooperated with the entire investigation. He states that since
11.02.2019, he has been in magesterial custody till date.
J-APEAL-294-2022.odt
8. The Applicant avers that he has been falsely
implicated in this case only after he has got further detention
order set aside by the Bombay High Court, by its order dated
24.10.2018, passed in Criminal Writ Petition No.4148 of
2018, in Crime No.4 of 2018, registered with Vishrambagh
Police Station, Pune. He has stated that the Special Judge,
NIA, Greater Bombay had rejected his bail application on
21.09.2020, which he had challenged in a Criminal Appeal
No.220 of 2021 before the High Court of Bombay at its
Principal Bench, requesting to release him on temporary bail
to join his family to perform the last rites of his mother, who
had passed away on 15.08.2020 at Nagpur. After he had
performed the last rites of his mother, he surrender on
21.08.2021 and has been in custody sine then.
9. The Applicant further states that he had filed an
Application under Section 439 of CrPC before Sessions
Court, Gadchiroli, vide Bail Application No.294 of 2019 on
29.05.2019, which was rejected vide order dated 23.09.2019;
thereafter he filed a bail application before the High Court
bearing Criminal Bail Application (BA) No.109 of 2020,
J-APEAL-294-2022.odt
which came to be disposed vide order dated 11.08.2021,
holding the same as not maintainable in view of the
judgment of the Hon'ble Supreme Court in Bikramjit
Sing ..V/s.. State of Punjab, reported in 2020(10) SCC 616.
On being granted liberty, he availed the statutory remedy of
an appeal under Section 21(4) of the NIA Act against order
dated 23.09.2019, of the Sessions Court, Gadchiroli with an
application for condonation of delay in filing the appeal. This
Court was pleased, by its order dated 04.01.2022 to allow the
Appellant to withdraw his application/appeal with liberty to
file a bail application for fresh consideration before the
Sessions Court at Gadchiroli. He then filed a fresh bail
application in Sessions Case No.99 of 2019 (at Exhibit-134),
whilst being incarcerated at Taloja Central Prison, Navi
Mumbai.
The Sessions Court has now rejected his
application for bail vide the impugned order, which he has
challenged before us in the present appeal filed under Section
21(4) of the NIA Act.
J-APEAL-294-2022.odt
10. The appeal came to be opposed by the
Respondent/State, who filed their reply dated 27.04.2022.
During the course of hearing, the Applicant has also placed
before us, for easy reference, the final report filed against the
Appellant in Crime No.4 of 2018 filed by Vishrambag Police
Station, Pune, dated 15.11.2018, which is before the
designated NIA Court at Mumbai.
11. We have heard Shri Firdos T. Mirza, learned
Counsel for Appellant, Shri Neeraj B. Jawade, learned Special
Public Prosecutor appearing for the Respondent/State and
perused the FIR and final report alongwith the material
annexed to it.
12. It is argued by Shri Firdos Mirza, learned Counsel
appearing for Appellant/accused that the Sessions Court has
failed to examine the material placed before it and failed to
apply the principles laid down by the Hon'ble Supreme
Court in various judgments, which have considered
provisions of Section 43-D(5) of the UAP Act. That the
Court below has failed to exercise jurisdiction vested in it to
J-APEAL-294-2022.odt
grant bail in favour of the Appellant. Shri Mirza argues that
the Hon'ble Supreme Court in Union of India ..V/s.. K. A.
Najeeb, reported in (2021) 3 SCC page 713, has considered
the parameters, which apply to the grant of bail under
Section 439 of CrPC and statutory restrictions on the rights
of an accused to bail under Section 43-D(5) of the UAP Act.
He refers to the observations of the Hon'ble Supreme Court
in paragraphs 14 and 15 of Union of India ..V/s.. K. A.
Najeeb (supra), to argue that it can be legitimately expected
that since the Appellant has been in custody since
06.06.2018, for a period of four years, and the trial is at the
inception stage, keeping the balance between risk to society
by releasing the criminal pending trial and considering the
rights of the Appellant, it would be just and proper that the
Appellant be released on bail. Learned Counsel for the
Appellant then relies upon the judgment of Hon'ble
Supreme Court in Sagar Tatyaram Gorkhe and Anr. ..V/s..
The State of Maharashtra, reported in
MANU/SCOR/00060/2017, to contend that the Sessions
Court has not considered facts like the period of custody
J-APEAL-294-2022.odt
undergone, the likely period within which the Trial can be
expected to be completed and the number of witnesses
examined, a mandate laid down in the said case law.
13. Shri Mirza, further refers to the judgment of the
Hon'ble Supreme Court in Thwaha Fasal ..V/s.. Union of
India, reported in 2021 SCC OnLine SC 1000, wherein at
paragraphs 19 and 20 thereof, it has considered the manner
in which, the embargo under Section 43-D (5) of the UAP
Act, is to be applied. He submits that in that case, the
Hon'ble Supreme Court has held that after perusing the
charge-sheet, if the Court is of the opinion, there are
reasonable grounds for believing that the accusation against
the Applicant is prima facie true, that it should reject the bail
application of the accused. He submits that the Trial Court
has not considered all the material before it, before
concluding that accusations against the Appellant are prima
facie true.
He then refers to National Investigation
Agency ..V/s.. Zahoor Ahmad Shah Watali, reported in
J-APEAL-294-2022.odt
(2019) 5 SCC page 1, wherein the Supreme Court has laid
down the various considerations to form the opinion of the
Court, whilst considering a bail application, in terms of
Section 43-D (5) of the UAP Act. He further refers to the
observations of the Supreme Court in paragraphs 34 and 35
of that judgment to argue that the Court's view that the
accusations made against the accused person are prima facie
true, are required to be borne out from the reading of the
totality of the report made under Section 173 of the CrPC,
accompanying documents and the evidence presented to the
Court, which includes redacted statements of witnesses
recorded under Section 164 of CrPC.
14. Learned Counsel for Appellant then takes us to the
provisions of the UAP Act, more particularly to Sections 15,
16, 18, 20 and 23 and argues that for the provisions of
Section 15 to be made applicable to the facts set out in the
charge-sheet, there has to be a specific allegation against the
Appellant, that he was indulging in an act of terrorism; that
the material on record should demonstrate that the accused
was in some manner threatening the Unity, Integrity, Security
J-APEAL-294-2022.odt
or Sovereignty of India or was indulging in any of the
activities set out in Section 15 of the UAP Act. He submits
that there is no specific allegation made against the accused
that he has indulged in a terrorist act.
It is further submitted that a plain reading of the
FIR and statements of witnesses to the Surjagad incident
would demonstrate the act of burning of the trucks, would
fall within the definition of arson and by no means, would be
termed a terrorist act. It is his submission that in any event,
the material on record does not connect the
Appellant/accused with the particular incident of 23.12.2016.
15. It is further the Appellant's argument that the
Communist Party of India (Maoist), which is a banned
organization under the Schedule of the UAP Act, has not
been made an accused in the charge-sheet. It is argued that
for the purpose of invoking a punishment under Section 20
of the UAP Act, it would be incumbent upon the
Respondent to implead the organization that the prosecution
alleges the accused is a member of it, the Communist Party of
J-APEAL-294-2022.odt
India (Maoist).
16. It is further argued by the learned Counsel for the
Appellant that the order of sanction dated 28.05.2019,
granted in terms of Rules 3 and 4 of the UAP Rules, 2008, is
beyond the time frame of seven working days specified
therein, and further that the provisions of Rule 4 are
mandatory in nature; that since the decision to grant sanction
for prosecution of the Appellant was not adhered to, within
the time frame of seven working days, it vitiates the
prosecution of the charge-sheet before the Sessions Court.
Learned Counsel for the Appellant relies upon a judgment of
the High Court of Kerala in Roopesh ..V/s.. State of Kerala
and Ors., reported in MANU/KE/0889/2022, which has
considered the provisions of Rule 4 of the UAP Rules, and
held the time frames stipulated thereunder to be mandatory.
Learned Counsel for the Appellant then fairly submits that a
question of sanction has also been tested by the Nagpur
Bench of this Court in a judgment dated 14.10.2022 in
Criminal Appeal No.136 of 2017 (Mahesh Kariman Tirki
and Ors. ..V/s.. State of Maharashtra) with Criminal Appeal
J-APEAL-294-2022.odt
No.137 of 2017 (G. N. Saibaba ..V/s.. State of Maharashtra),
which has taken a view that the time limits in the provisions
of Rule 4 are directory.
17. Learned Counsel then refers to the order of
sanction granted by the designated Authority which is the
Director of Prosecution, and submits that a bare reading of
the order would disclose that it does not refer to any
instances of an act, which is alleged to have been committed
by the Appellant, which could be prima facie considered to
be an act falling within any of the provisions of the UAP Act.
He further submits that prima facie considerations of the
material in the charge-sheet are totally absent in the sanction
order. He argues that in the absence of the accused being
named in any of the statements of the witnesses to the
incident of 22.12.2018, there could have been no sanction
granted to prosecuting the Appellant.
18. Learned Counsel for the Appellant then takes us
through the material appended to the charge-sheet, more
specifically to the letters, which were found on the hard-disk
J-APEAL-294-2022.odt
seized from the house of the Appellant under the house
search panchanama dated 17.04.2017 by the Police of
Vishrambag Police Station at Pune, and contends that these
letters were alleged to have been received by, or sent by the
Appellant ought to have had an email header on them. It is
his submission that in the absence of the email address of the
sender and the timing at which, the same was sent or
received, all the letters relied upon by the prosecution to
contend the involvement of the Appellant in the
organization of the alleged crime or to connect him to the
banned organization C.P.I. (Maoist) would be improper, as
the genuineness of the said letters are in great doubt.
He Submits that the entire process followed in the
seizure panchanama, which was conducted at the residence of
the Appellant at Pune, and the process of attachment of the
hard-disk and other printed material is flawed and is not in
accordance with the procedures provided under Section 16 of
the Information Technology Act, 2000 ("IT Act"), as one
could not consider that the electronic record comprising the
letters to be a secure electronic record, within the meaning of
J-APEAL-294-2022.odt
Section 14 of the IT Act; he further contends that the entire
procedure followed for attachment of the hard-disk during
the seizure was contrary to the Security Procedure Rules
under the IT Act. He takes us through the report of the
Forensic Science Laboratory dated 14.11.2018 and contends
that the hash value of the hard-disk was taken for the first
time at the Directorate of Forensic Science Laboratories at
Kalina, Santacruz (East) Mumbai, and prior to that there was
no hash value recorded by the cyber crime experts, who
accompanied the raiding team, that conducted the seizure of
the hard-disk.
19. It is further the contention of the learned Counsel
for the Appellant that the procedure contemplated under the
Information Technology Rules, 2021 ("IT Rules") requires a
hash value to be taken of the content of the hard-disk by the
cyber crime expert before cloning or creating a mirror image
of the data contained therein, applying the digital signature
of the cyber crime expert to the hard-disk, which procedure
has not been demonstrated on the examination report dated
14.11.2018, nor is there any statement in the seizure
J-APEAL-294-2022.odt
panchanama recording the hash value of the data on the
hard-disk, at the time of its seizure. He therefore contends
that there being neither a certificate under Section 65B of the
Evidence Act, 1872, to support the report nor any material to
show the procedure followed, whilst seizing the hard-disk,
the entire material cannot be considered a secure electronic
record of the data in the said hard-disk, and would have to be
discarded being inadmissible. He submits that except for this
record, which is suspect, there is no material in the charge-
sheet to implicate the Appellant.
20. It is further the contention of Shri Mirza that
under the provisions of Section 45A of the Act, the opinion
of the expert, who examines the electronic evidence would be
relevant only if such evidence was collected after following
the procedure under the IT Act, and Rules framed therein;
he further submits that its a requirement of law that for the
purpose of the Act, it is only Officers of those institutions,
which are notified by the Government of India, in terms of
the provisions Section 79A of the IT Act, who could give an
expert opinion on the examination of the electronic evidence.
J-APEAL-294-2022.odt
He argues that the Directorate Forensic Science Laboratories
of the Government of Maharashtra at Kalina, Santacruz
(East) Mumbai, is not a notified laboratory for the purpose of
Section 79A of the IT Act, and therefore, no presumptions
can be attached to the forensic report dated 14.11.2018.
He is then argued that the rule prohibiting double
jeopardy would apply to the present case as the Appellant
would be facing two separate trials based upon the same
material collected in the two investigations.
21. It is further argued by the Appellant that in terms
of the judgments of the Hon'ble Supreme Court in Union of
India ..V/s.. K. A. Najeeb (supra), and Sagar Tatyaram
Gorkhe and Anr. ..Vs.. The State of Maharashtra, (supra),
the Sessions Court has committed an error by not
considering, the fact that the Appellant has spent significant
time in jail, pending investigation and filing of the charge-
sheet. It is contended that on all these grounds and also
considering the fact that the Appellant is an Advocate with
considerable repute, having a fixed place of habitation and
J-APEAL-294-2022.odt
roots, there would be no room for the Respondent/State
suspecting that he would jump bail or not keep the terms of
bail.
22. Shri Neeraj B. Jawade, learned Special Public
Prosecutor appearing for the Respondent/State has
vehemently opposed the appeal, supporting the impugned
order of rejection of bail to the Appellant mainly on the
submission that from a perusal of the material on record,
there is enough evidence at this prima facie stage not only to
connect the Appellant to the banned organization C.P.I.
(Maoist), but to the organization of various programmes and
acts of this banned organization, which would amount to an
act of terrorism or an act of waging war against the State. He
further contends that the material on record, in terms of the
observations made by the Hon'ble Supreme Court in
National Investigation Agency ..V/s.. Zahoor Ahmad Shah
Watali (supra) and Thwaha Fasal ..V/s.. Union of India
(supra), are enough to record a finding, on the basis of broad
probabilities, recording the involvement of the accused in the
commission of the offences.
J-APEAL-294-2022.odt
He further contends that the scope of enquiry at
the stage of granting bail by the Sessions Court is to decide
whether prima facie material is available against the accused
of commission of the offences alleged in the charge-sheet and
whether that material prima facie establishes the association
of the accused with a terrorist organization C.P.I. (Maoist)
and such grounds exist for believing that the accusation
against the accused is prima facie true. Learned Special Pubic
Prosecutor has referred to a Division Bench Judgment of this
Court dated 19.09.2022 in Criminal Appeal No.351 of
2022, Hany Babu ..V/s.. National Investigation Agency and
Anr., which considered the restrictusion imposed under
Section 43-D(5), whilst considering an application for bail
under the UAP Act. It is contended by the learned Special
Public Prosecutor that the Sessions Court has correctly
assessed the material before it by applying the principles laid
down in the case of grant of bail and in terms of restrictions
under the special provisions of Section 43-D (5) of the UAP
Act, and its conclusions that there are reasonable grounds for
believing that the accusation against the Appellant is prima
J-APEAL-294-2022.odt
facie true, cannot be faulted.
23. It is then submitted by the Respondent that the
grounds taken by the Appellant to charge him of the offences
alleged in the present charge-sheet would amount to a case of
double jeopardies, since the Appellant has been charged of
the very same offences in the charge-sheet filed before the
designated NIA Court in (Bhima Koregaon violation case).
The learned Special Public Prosecutor submits that the
charge-sheet in that case, no doubt has material produced
with it which overlaps with the material produced in the
charge-sheet before us, but the incident on the basis of which,
the charge-sheet is filed before the Special NIA Court at
Mumbai was of 08.01.2018. He contends that the present
charge-sheet was on the basis of the incident of burning of
trucks at Surjagad hills on 23.12.2016, but material collected
during the investigation of Bhima Koregaon case based upon
the incident of 08.01.2018 at Pune, and the searches
conducted at the house of the Appellant during the
investigation of that case revealed connection of the
Appellant, at the organizational level of the banned
J-APEAL-294-2022.odt
organization C.P.I. (Maoist) to both the incidents. It is on
this basis that he contends that there is no room for taking a
defence of double jeopardy, as the involvement of the
Appellant in each incident is separate and distinct even
though there may be overlaps, in terms of the evidence
collected in each investigation.
24. It is further argued by the learned Special. Public
Prosecutor that the Appellant has never raised any objection
or made any accusation at any point of time, either during
the search operations at his residence or during any of the
proceedings before the Special NIA Court at Mumbai or
before the Sessions Court in the present case, that the hard-
disk attached during the seizure was tampered with or that he
had an objection to conducting the raid in his house. He
takes us through the provisions of Section 2(ze) of the IT
Act, which defines what is "secure system" and contends that
no material was transferred from the hard-disk during the
seizure, as can be seen from the seizure panchanama and
from the report of the forensic lab. He takes us through the
seizure panchanama and the report to contend that what was
J-APEAL-294-2022.odt
seized was the entire hard-disk, which was sealed and then
sent to the forensic lab, where the cyber expert has, at the
time of accessing the hard-disk applied his digital signature
and followed the same process after creating a clone or mirror
image of the data on the hard-disk, inline with the procedure
laid down in the IT Rules and in terms of the IT Act. He
further contends that in any event, all these would be the
matters of leading evidence in the trial and the experts would
have to prove the documents and be cross-examined; that it
would be improper for the Sessions Court to go into all these
mattes at the stage of considering the grant of bail, more so
considering the restrictions imposed under Section 43-D (5)
of the UAP Act.
25. Learned Special Public Prosecutor then takes us
through the published material attached by the raiding party
during the search of the house of the Appellant at Pune and
refers to a "Maoist Information Bulletin-34" of July to
December-2016, which was found at the house of the
Appellant. The Bulletin specifically refers to the incident of
23.12.2016 at Surjagad, Gadchiroli. He submits that a
J-APEAL-294-2022.odt
reading of this bulletin leaves no manner of doubt that the
Appellant was in possession of material, which incriminates
him in Surjagad incident of burning of trucks and waging an
armed struggle against the elected Government, which
amounts to an act of terrorism under the UAP Act.
He then takes us to copies of the various letters
found on the hard-disk attached from the premisses of the
Appellant, wherein there is a vast amount of correspondence
between one comrade Surendra (meaning the Appellant
Surendra Gadling), and other members of the organization,
which include comrades i.e. Varvara (meaning Varvara Rao),
Prakash (meaning Namballa Keshvrao), Milind (meaning
Milind Babarao Teltumbade). It is his argument that a
reading of the contents of those letters, would confirm the
involvement of the Appellant at the organizational level of
the banned group C.P.I. (Maoist); it would also leave no
doubt as to the involvement of the Appellant in mobilizing
funds through hawala channels, organizing the cadre in the
forest of Gadchiroli to carry out the attack on the trucks, and
in handling the negative public opinion that had developed
J-APEAL-294-2022.odt
after the incident. He further argues that the contents of
these letters also refer to the praise showered upon the
Appellant by other members of the banned organization for
carrying out of the incident and to the references made
therein of the different members of the organization for
whom, the Appellant provided support in the form of legal
counsel in various cases instituted against them. It is further
argued that the letters also connect the accused to the Bhima
Koregaon incident at Pune as there are several references to
the organization of that incident and to the involvement of
the Appellant in the follow up action in that incident, in
relation to the organization.
26. We now proceed to weigh the rival contentions of
the Appellant and the Respondent/State in the light of the
law laid down by the Supreme Court and keeping in mind
the various law provisions applicable to this case. At the
outset, we must record that this being an appeal under the
provisions of Section 21(4) of the NIA Act, the scope of our
consideration of the impugned order rejecting bail to the
Appellant would be limited to examine whether the Sessions
J-APEAL-294-2022.odt
Court has considered the material on record in the light of
various pronouncements of the Hon'ble Supreme Court,
whilst considering the grant of bail in a matter under the
UAP Act, and in terms of the restrictions and fetters placed
on the designated Court under Section 43-D (5) of the UAP
Act.
27. For ready reference and consideration, we quote
various provisions of the UAP Act, which we would deal
with, whilst deciding this appeal. Section 2(1)(ec) defines a
person :
"2. Definitions.- In this Act, unless the context
otherwise requires,-
(ec) "person" includes-
(i) an individual,
(ii) a company,
(iii) a firm,
(iv) an organization or an association of persons or a
body of individuals, whether incorporated or not,"
Section 2(1)(k) defines a "terrorist act"
(k) "terrorist act" has the meaning assigned to it in
section 15, and the expressions "terrorism" and "terrorist"
shall be constructed accordingly;
Section 2(1)(m) states that "terrorist organization"
means an organisation listed in the (First Schedule) or an
organisation operating under the same name as an
organisation so listed;"
J-APEAL-294-2022.odt
28. Section 15 of the UAP Act sets out, what
constitutes the offence of a terrorist act, for which the
punishment prescribed under Section 16, in case the act
results in death of any person would be imprisonment for life
or the death penalty; in other cases, Section 16 prescribes an
a term imprisonment which shall not be less than five years,
but which may extend to imprisonment for life. Section 18 of
the UAP Act prescribes, an imprisonment for a term which
may extend to life for the act of conspiring or abetting or
advising or inciting or facilitating the commission of a
terrorist act or an act preparatory to commission of a terrorist
act.
Section 20 prescribes, the punishment for being a
member of a terrorist organization, which may extend to
imprisonment for life, while Section 23 prescribes enhanced
penalties, where a person with an intent to aid any terrorist or
terrorist organization contravenes the provisions of
Explosives Act, Flammable Substances Act, Arms Act or is in
possession of any explosive, and prescribes a prison term,
which may extend to imprisonment for life.
J-APEAL-294-2022.odt
29. Section 43-D provides for modified application of
the provisions of Section 167 of the Code of Criminal
Procedure, 1973 and it reads as under :
"43-D. Modified application of certain provisions
of the Code.-
(1) Notwithstanding anything contained in the Code or
any other law, every offence punishable under this Act
shall be deemed to be a cognizable offence within the
meaning of clause (c) of section 2 of the Code, and
"cognizable case" as defined in that clause shall be
construed accordingly.
(2) Section 167 of the Code shall apply in relation to
a case involving an offence punishable under this Act
subject to the modification that in sub-section (2),--
(a) the references to "fifteen days", "ninety
days" and "sixty days", wherever they occur, shall be
construed as references to "thirty days", "ninety days" and
"ninety days" respectively; and
(b) after the proviso, the following provisos shall be
inserted, namely:--
"Provided further that if it is not possible to complete the
investigation within the said period of ninety days, the
Court may if it is satisfied with the report of the Public
Prosecutor indicating the progress of the investigation
and the specific reasons for the detention of the accused
beyond the said period of ninety days, extend the said
period up to one hundred and eighty days:
Provided also that if the police officer making the
investigation under this Act, requests, for the purposes of
investigation, for police custody from judicial custody of
any person in judicial custody, he shall file an affidavit
stating the reasons for doing so and shall also explain the
J-APEAL-294-2022.odt
delay, if any, for requesting such police custody.".
(3) Section 268 of the Code shall apply in relation to
a case involving an offence punishable under this Act
subject to the modification that--
(a) the reference in sub-section (1) thereof-
(i) to "the State Government" shall be
construed as a reference to "the Central
Government or the State Government",
(ii) to "order of the State Government"
shall be construed as a reference to "order of the
Central Government or the State Government, as
the case may be"; and
(b) the reference in sub-section (2) thereof, to
"the State Government" shall be construed as a
reference to "the Central Government or the State
Government, as the case may be".
(4) Nothing in section 438 of the Code shall apply in
relation to any case involving the arrest of any person
accused of having committed an offence punishable
under this Act.
(5) Notwithstanding anything contained in the Code,
no person accused of an offence punishable under
Chapters IV and VI of this Act shall, if in custody, be
released on bail or on his own bond unless the Public
Prosecutor has been given an opportunity of being heard
on the application for such release:
Provided that such accused person shall not be
released on bail or on his own bond if the Court, on a
perusal of the case diary or the report made under section
173 of the Code is of the opinion that there are
reasonable grounds for believing that the accusation
against such person is prima facie true.
(6) The restrictions on granting of bail specified in
sub-section (5) is in addition to the restrictions under the
J-APEAL-294-2022.odt
Code or any other law for the time being in force on
granting of bail.
(7) Notwithstanding anything contained in sub-
sections (5) and (6), no bail shall be granted to a person
accused of an offence punishable under this Act, if he is
not an Indian citizen and has entered the country
unauthorisedly or illegally except in very exceptional
circumstances and for reasons to be recorded in writing."
30. The Hon'ble Supreme Court has considered all the
above provisions in various judgments, which are set out and
quoted below :
a) Sagar Tatyaram Gorkhe and Anr. (supra) was the
case where the Hon'ble Supreme Court was considering an
appeal against rejection of an application for bail on behalf of
three accused out of a total of 15 accused, where 4 of the
remaining accused were absconding and 8 accused had been
released on bail. The Appellants in that case were in custody
for a period of close to four years and a direction had been
given by the Apex Court to complete the trial within six
months under its previous order dated 12.07.2016. Despite
that, only one witness had been examined. In those facts, the
Hon'ble Supreme Court has observed in para 4 of the
J-APEAL-294-2022.odt
judgment as under :
"4. The charges against the accused are,
undoubtedly, serious. However, as observed in the earlier
order of this Court dated 4th May, 2016 such charges will
have to be balanced with certain other facts like the
period of custody suffered and the likely period within
which the trial can be expected to be completed. In our
previous order dated 12th July, 2016 passed in the
present matter the statement made on behalf of the State
that the trial would be completed within a period of six
months has been recorded. We are informed today that
till date only one witness has been examined and that too
his examination is also not over. The prosecution
proposes to examine 147 witnesses. The accused
appellants have been in custody close to four years."
31. In National Investigation Agency ..V/s.. Zahoor
Ahmad Shah Watali (supra), the Hon'ble Supreme Court was
considering the scope of the restrictions under Section 43-D of
the UAP Act, inserted by the Act 30.05.2008 with effect from
31.12.2008 and what is required to be kept in mind whilst
considering an application for bail under that Act. It has held as
follows :
"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 probabilities regarding the
involvement of the accused in the commission of the
J-APEAL-294-2022.odt
stated offence or otherwise.
30. In our opinion, the High Court, having noticed
that the Designated Court had not looked at the stated
statements presented in a sealed cover, coupled with the
fact that the application under Section 44 filed by the
investigating agency was pending before the Designated
Court, and before finally answering the prayer for grant
of bail, should have directed the Designated Court to
first decide the said application and if allowed, consider
the redacted statements, to form its opinion as to
whether there are reasonable grounds for believing that
the accusation made against the respondent is prima
facie true or otherwise. For, in terms of Section 43D, it is
the bounden duty of the Court to peruse the case diary
and/or the report made under Section 173 of the Code
and all other relevant material/evidence produced by the
investigating agency, for recording its opinion.
31. We could have relegated the parties before the
High Court but the counsel appearing for the
respondent, on instructions, stated that the respondent
would prefer to await the decision of the Designated
Court and, depending on the outcome of the application
under Section 44 of the Act, would contest the
proceedings before this Court itself. Accordingly, at the
request of the respondent, we kept the present appeal
pending. Since the Designated Court has finally
disposed of the application preferred by the investigating
agency vide order dated 11-1-2019, the correctness
whereof has not been challenged by the respondent, the
redacted statements of the protected witness concerned
have been taken on record.
32. Accordingly, we have analysed the matter not
only in light of the accusations in the FIR and the
charge-sheet or the police report made under Section
173, but also the documentary evidence and statements
of the prospective witnesses recorded under Section 161
J-APEAL-294-2022.odt
and 164, including the redacted statements of the
protected witnesses, for considering the prayer for
bail......
33. As regards the redacted statements, objection of
the respondent was that the certificate given by the
competent authority is not in conformity with the
certificate required to be given in terms of Section
164(4) CrPC. This objection has been justly countered
by the learned Attorney General with the argument that
the objection borders on the issue of admissibility of the
said statements. We find force in the submission that the
issue regarding admissibility of the statements and
efficacy of the certificates given by the competent
authority, appended to the redacted statements would be
a matter for trial and subject to the evidence in reference
to Section 463 CrPC and cannot be overlooked at this
stage. Viewed thus, the exposition in Ramchandra
Keshav Adke v. Govind Joti Chavare20, in para 25 of the
reported judgment will be of no avail to the respondent.
34. After having analysed the documents and the
statements forming part of the charge-sheet as well as the
redacted statements now taken on record, we disagree
with the conclusion recorded by the High Court. In our
opinion, taking into account the totality of the report
made under Section 173 of the Code and the
accompanying documents and the evidence/material
already presented to the Court, including the redacted
statements of the protected witnesses recorded under
Section 164 of the Code, there are reasonable grounds to
believe that the accusations made against the respondent
are prima facie true. Be it noted, further investigation is
in progress.
38. The charge against respondent is not limited to
Section 17 of the 1967 Act regarding raising funds for
terrorist acts but also in reference to Sections
13,16,18,20,38,39 and 40 of the 1967 Act. Section 13 is
J-APEAL-294-2022.odt
in Chapter II of the 1967 Act. The special provisions
regarding bail under Section 43D(5), however, are
attracted in respect of the offences punishable under
Chapters IV and VI, such as Sections 16,17,18,20,38,39
and 40 of the 1967 Act. Section 39 and 40 form part of
Chapter VI, whereas other sections (except Section 13)
form part of Chapter IV to which the subject bail
provisions are applicable, mandating the recording of
satisfaction by the Court that there are reasonable
grounds for believing that the accusation against such
person is prima facie true.
39. Reverting to the documents on which emphasis
has been placed, Document No. D-32 is the Seizure
Memo of properties seized from the premises of Ghulam
Mohammad Bhatt (W-29), the then Munshi/Accountant
of the respondent (Accused No.10). Document D-
132(a) is the green page document, seized during the
search of the residence of said Ghulam Mohammad
Bhatt, containing information about foreign
contributions and expenditures of the respondent
(Accused No.10) during 2015/2016. Whether this
document is admissible in evidence would be a matter
for trial. Be that as it may, besides the said document, the
statement of Ghulam Mohammad Bhatt (W-29) has
been recorded on 30-8-2017, and 1-11-2017. Whether
the credibility of the said witness should be accepted
cannot be put in issue at this stage. The statement does
make reference to the diaries recovered from his
residence showing transfer of substantial cash amounts
to different parties, which he has explained by stating
that cash transactions were looked after by the
respondent (Accused No.10) himself. He had admitted
the recovery of the green-coloured document from his
residence, bearing signature of the respondent (Accused
No.10) and mentioning about the cash amounts received
and disbursed during the relevant period between 2015
and 2016. The accusation against the respondent
(Accused No.10) is that accused A-3 to A-10 are part of
J-APEAL-294-2022.odt
the All Parties Hurriyat Conference which calls itself a
political front, whereas their agenda is to create an
atmosphere conducive to the goal of cessation of J & K
from the Union of India. The role attributed to the
respondent (Accused No.10) is that of being part of the
larger conspiracy and to act as a fund raiser and finance
conduit. Ample material has been collected to show the
linkages between the Hurriyat leaders of the J & K and
terrorists/terrorist organizations and their continuous
activities to wage war against Government of India."
32. The gist of the reasoning adopted by the Hon'ble
Supreme Court in National Investigation Agency ..V/s..
Zahoor Ahmad Shah Watali (supra) is, that the exercise to be
undertaken by a Court considering the merits or demerits in
a bail application, is different from the exercise of assessing
the merits or demerits of evidence. The Supreme Court goes
on to hold that at the stage of deciding the bail application
under the UAP Act, an elaborate examination or dissection of
evidence ought not to be done at that stage, and the Court is
only expected to record its findings on the basis of broad
probabilities regarding the involvement of the accused in the
commission of the alleged offence.
Applying the above parameters to the assessment
of the material before it in the case of National Investigation
J-APEAL-294-2022.odt
Agency ..V/s.. Zahoor Ahmad Shah Watali (supra), the
Supreme Court deemed it proper to reverse the order of the
High Court granting bail and maintain the order of the
designated Court, rejecting the application for grant of bail.
33. Thereafter in Thwaha Fasal ..V/s.. Union of India
(supra), after considering the law laid down by the Supreme
Court in Ranjitsing Brahmajeetsing Sharma ..V/s.. State of
Maharashtra & Anr, (2005) 5 SCC 294, Union of India
..V/s.. K. A. Najeeb, reported in (2021) 3 SCC page 713 and
National Investigation Agency ..V/s.. Zahoor Ahmad Shah
Watali, reported in (2019) 5 SCC page 1, the Apex Court has
held that the scope of enquiry whilst deciding a bail
application in view of the provisions of 1967 Act is, whether
prima facie material is available against the accused of
commission of the offences alleged under Chapters IV and
VI of the 1967 Act. The relevant portions of the judgment
are quoted as under :
"12. The offence punishable under Section 20 is
attracted when the accused is a member of a terrorist
gang or a terrorist organisation which is involved in
terrorist act. Section 20 is not attracted unless the
J-APEAL-294-2022.odt
terrorist gang or terrorist organisation of which the
accused is a member is involved in terrorist act as
defined by Section 15. Section 20 provides for a
punishment of imprisonment for a term which may
extend to imprisonment for life and fine.
13. On plain reading of Section 38, the offence
punishable therein will be attracted if the accused
associates himself or professes to associate himself with a
terrorist organisation included in First Schedule with
intention to further its activities. In such a case, he
commits an offence relating to membership of a terrorist
organisation covered by Section 38. The person
committing an offence under Section 38 may be a
member of a terrorist organization or he may not be a
member. If the accused is a member of terrorist
organisation which indulges in terrorist act covered by
Section 15, stringent offence under Section 20 may be
attracted. If the accused is associated with a terrorist
organisation, the offence punishable under Section 38
relating to membership of a terrorist organisation is
attracted only if he associates with terrorist organisation
or professes to be associated with a terrorist organisation
with intention to further its activities. The association
must be with intention to further the activities of a
terrorist organisation. The activity has to be in
connection with terrorist act as defined in Section 15.
Clause (b) of proviso to sub-section (1) of Section 38
provides that if a person charged with the offence under
sub-section (1) of Section 38 proves that he has not
taken part in the activities of the organisation during the
period in which the name of the organisation is included
in the First Schedule, the offence relating to the
membership of a terrorist organisation under sub-section
(1) of Section 38 will not be attracted. The aforesaid
clause (b) can be a defence of the accused. However,
while considering the prayer for grant of bail, we are not
concerned with the defence of the accused.
J-APEAL-294-2022.odt
20. The stringent conditions for grant of bail in sub-
section (5) of Section 43D will apply only to the
offences punishable only under Chapters IV and VI of
the 1967 Act. The offence punishable under Section 13
being a part of Chapter III will not be covered by sub-
section (5) of Section 43D and therefore, it will be
governed by the normal provisions for grant of bail
under the Criminal Procedure Code, 1973. The proviso
imposes embargo on grant of bail to the accused against
whom any of the offences under Chapter IV and VI have
been alleged. The embargo will apply when after
perusing charge sheet, the Court is of the opinion that
there are reasonable grounds for believing that the
accusation against such person is prima facie true. Thus,
if after perusing the charge sheet, if the Court is unable
to draw such a prima facie conclusion, the embargo
created by the proviso will not apply.
23. 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 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
J-APEAL-294-2022.odt
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."
34. Thwaha Fasal ..V/s.. Union of India (supra), also
deals with considerations for the application of the provisions
of Section 43-D(5) of the UAP Act, in the absence of
sanction for prosecution of the accused under sub-section (1)
or Section 45 of the 1967 Act. The Supreme Court has
considered the fact that whilst offences were registered under
Sections 20, 38 and 39 of the 1967 Act, against the accused,
the NIA did not seek sanction for prosecuting of any of the
accused for the offences punishable under Section 20, and
such sanction was sought for only offences punishable under
Sections 38 and 39 of the 1967 Act. The considerations on
the question of the effect of grant of sanction are found in
para 25 of Thwaha Fasal ..V/s.. Union of India (supra), which
are quoted as under :
"25. The order of sanction dated 18th April 2020 is a
part of the charge sheet which is placed on record of
these appeals. Paragraphs 2 and 3 of the order of
sanction show that though the offence was registered
under Sections 20, 38 and 39 of the 1967 Act, by a letter
dated 13th April 2020, NIA did not seek sanction for
J-APEAL-294-2022.odt
prosecuting any of the three accused for the offence
punishable under Section 20. Sanction was sought to
prosecute the accused nos.1 and 2 for the offences
punishable under Sections 38 and 39. In addition, a
sanction was sought to prosecute the accused no.2 under
Section 13. Paragraph 4 of the order refers to the
authority appointed by the Central Government under
sub-section (2) of Section 45 consisting of a retired
Judge of a High Court and a retired Law Secretary, as
well as the report submitted by the said authority.
Paragraph 6 of the said order records prima facie
satisfaction of the Central Government that a case is
made out against the accused under the provisions of the
Act of 1967, as mentioned in letter dated 13 th April
2020. Thus, as of today, sanction under sub-section (1)
of Section 45 has not been accorded for prosecuting the
accused for the offence punishable under Section 20 of
the Act of 1967 and, therefore, as of today, the Special
Court under NIA Act cannot take cognizance of the
offence punishable under Section 20. Therefore, for
deciding the issue of prima facie case contemplated by
sub-section (5) of Section 43D, the case against the both
accused only under Sections 38 and 39 is required to be
considered. In view of the absence of sanction and the
fact that NIA did not even seek sanction for the offence
punishable under Section 20, a prima facie case of the
accused being involved in the said offence is not made
out at this stage. As stated earlier, sub-section (5) of
Section 43D will not apply to Section 13, as Section 13
has been incorporated in Chapter III of the 1967 Act."
35. Whilst dealing with the subject of grant of
sanction, we take note of the fact that in the present case, the
Government of Maharashtra has granted sanction by its order
dated 28.05.2019 for prosecution of the present Appellant
J-APEAL-294-2022.odt
alongwith other accused for offences punishable under
Sections 16, 18, 20 and 23. Considering this situation, the
facts of the case before us are markedly different from the
facts in the case of Thwaha Fasal ..V/s.. Union of India
(supra), before the Supreme Court, which proceeded on the
basis that there was no sanction accorded against those
accused for the offence punishable under Section 20 of the
1967 Act.
36. We now refer to the judgment in Union of
India ..V/s.. K. A. Najeeb (supra), wherein the Hon'ble
Supreme Court was considering whether the presence of
statutory restrictions under Section 43-D(5) of the UAP Act
per se does not oust the ability of Constitutional Courts to
grant bail on the grounds of violation of Part III of the
Constitution of India. Whilst considering the balance
between the Fundamental Rights of a citizen under Part III of
the Constitution and the statutory restrictions under Section
43-D(5) of the UAP Act, the Supreme Court has held at
paragraphs 17, 18 and 19 as under :
J-APEAL-294-2022.odt
"17. 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 constitutional courts to grant bail
on grounds of violation of Part III of the Constitution.
Indeed, both the restrictions under a statue as well as the
powers exercisable under constitutional jurisdiction can
be well harmonised. Whereas at commencement of
proceedings, the 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 incarceration already undergone
has exceeded a substantial part of the prescribed sentence.
Such an approach would safeguard against the possibility
of provisions like Section 43-D (5) of the UAPA being
used as the sole metric for denial of bail or for wholesale
breach of constitutional right to speedy trial.
18. Adverting to the case at hand, we are conscious of
the fact that the charges levelled against the respondent
are grave and a serious threat to societal harmony. Had it
been a case at the threshold, we would have outrightly
turned down the respondent's prayer. However, keeping
in mind the length of the period spent by him in custody
and the unlikelihood of the trial being completed
anytime soon, the High Court appears to have been left
with no other option except to grant bail. An attempt has
been made to strike a balance between the appellant's
right to lead evidence of its choice and establish the
charges beyond any doubt and simultaneously the
respondent's rights guaranteed under Part III of our
Constitution have been well protected.
19. Yet another reason which persuades us to enlarge
the respondent on bail is that Section 43-D (5) of the
UAPA is comparatively less stringent than Section 37 of
the NDPS Act. Unlike the NDPS Act where the
competent court needs to be satisfied that prima facie the
accused is not guilty and that he is unlikely to commit
J-APEAL-294-2022.odt
another offence while on bail; there is no such
precondition under UAPA. Instead, Section 43-D (5) of
the UAPA merely provides another possible ground for
the competent court to refuse bail, in addition to the
well-settled considerations like gravity of the offence,
possibility of tampering with evidence, influencing the
witnesses or chance of the accused evading the trial by
absconsion, etc."
37. It is thus clear that Union of India ..V/s.. K. A.
Najeeb (supra), was a case where the Hon'ble Supreme Court
considered the special facts of that case, namely the stage at
which the trial was at, the number of witnesses which were
left to be examined and the unlikely event of the trial being
completed for years together.
38. Applying the ratio of the various judgments cited
by us above, we now proceed to refer to the material on
record and the charge-sheet, which we examine, keeping in
mind that our efforts would be to determine whether that
material would lead us to conclude that there are reasonable
grounds to believe that the accusations made that material
against the Appellant are prima facie true.
J-APEAL-294-2022.odt
39. At the outset, we note that the allegations made
against the Appellant, as claimed by the prosecution, are on
the basis of Sections 16, 18, 20 and 23 of the UAP Act read
with the provisions of the Indian Penal Code, the Arms Act
and the Maharashtra Police Act. A reading of the
statement/complaint of Rajvindarsing Harising Shergil
clearly sets out that about 100 to 150 trucks belonging to
transport companies, were detained by armed men in olive
green uniform on the day of the incident. The complaint
further states that the drivers of these trucks were asked to
alight from the trucks and were taken to a spot in the forest
and several of them were beaten up by the assailants. The
complaint further alleges that the assailants were chanting
slogans such as "Communist Party Zindabad, Maoist
Organization Zindabad, Lal Salam Zindabad", making direct
references to the Communist Party (Maoist) a banned
organization under the schedule to the UAP Act. The
complaint further alleges that around 39 vehicles were set on
fire by the naxalites after breaking open their diesel tanks,
clearly demonstrating the intent of the mob and the fact that
J-APEAL-294-2022.odt
they were acting in concert and with the common intent of
terrorising the drivers and cleaners of the trucks.
40. A further reading of the complaint alleges that the
assailants were joined by another group of men in plain
clothes, who came out of the forest and the conversation
recorded amongst the assailants of threatening to kill the
drivers, and the act of dousing some of the drivers with diesel
to set them on fire, were clearly acts designed to create terror
in the minds of the drivers and the cleaners of the trucks,
who were instrumental in transporting iron ore from the
Surjagad mines to the factory of Lloyd Metal Company.
It is clear from the statements that the group of
assailants were acting with common intent to create terror not
just in the minds of the drivers of the trucks, but with an
intent to stop the working of the mining activity in that area,
which would result in a threat to the economic security as
also the security of the factory set up in that area. Prima facie,
therefore, the acts alleged in the complaint/FIR, would be
acts, which would squarely fall within the definition of the
J-APEAL-294-2022.odt
word "terrorist act" under Section 15 of the UAP Act.
Consequently, the terrorist act if proved, would attract
punishment under Sections 16, 20 and 23 of the UAP Act.
Another aspect that stands out from a reading of the FIR was
the fact that the members of the armed group used fuel from
the tanks of the trucks, which is a flammable substance and
set fuel tanks on fire. The armed men were also carrying
weapons, which included fire arms. Both these acts would
squarely fall under the provisions of Section 15 of the UAP
Act (using flammable/explosive substance whilst committing
the arson and carrying and using fire arms to terrorise the
drivers).
41. The next question would be whether there is
material on record to connect the Appellant in terms of the
provisions of Section 20 of the UAP Act to a terrorist gang or
terrorist organization.
A perusal of the letters, which were found on the
analysis of the hard-disk seized from the house of the
Appellant would leave no doubt that the Appellant was
J-APEAL-294-2022.odt
connected with the banned organization C.P.I. (Maoist),
whose name is listed in the schedule to the Act. A reading of
these letters clearly reveals that the Appellant was not just
engaged as an Advocate of some of the members of the
banned organization, but he was involved in raising finance
and moving money from place to place and providing
financial support to the cadre of the banned organization
C.P.I. (Maoist) in the area of Gadchiroli. There are direct
references in these letters to the name of the Appellant in a
letter written by one "comrade Milind" to the incident in
question at Surjagad hills, which are quoted below:
ßvk'kk djrs gS dh] vki lHkh Bhd gksaxs] fiNys 3&4
ekg ls gekjs ofj"B dkWejsM ~l dkW- ojojjko rFkk gekjs dkuquh
enrxkj dkW- lqjsanz xMfyazx }kjk fn; x;s ekxZn'kZu ds eqrkchd
tks Hkh dkjokbZ ns'k ds vyx vyx fgLlks es [kkldj fnlacj
efgus es xMfpjksyh rFkk N- x- ds dkWejsM~l }kjk de la[;kk
es jgrs gqvs lqjtkxM esa fd;k x;s geysus ges jk"Vªh; Lrj es
cgqr izfl/nh fnyokbZ gS izpkj ek/;eks rFkk nq'euksa }kjk gekjh
la[;k dks 500 crkdj gekjh cMh miLFkhrh ogkW ntZ djokbZ
gS ,Slh gh dkjokb ftlesa gesa T;knk ls T;knk izfl/nh izkIr gks
gesa vkus okys fnuks es djuk gS dqN cMh dkjokbZ;ksa ds ckjs es
dkW- ojojjko vkSj dkW- lqjsanz us mls lQyrk iqoZd vatke nsus
ds fy;s rFkk taxy ds dkWejsM~l rd ;g ;kstuk;sa
J-APEAL-294-2022.odt
igqpkdj ,Sls gh cMs dke djokus dh tckcnsgh dkW- lqjsanz dks
nh gS blds fy;s mUgsa dkW ojojjko us QaM miyC/k djok;k gS
ftlesa ls dkW- lqjsanz dqN QaM vkird igqpk;saxs vki muds
laidZ esa jgdj dkjokbZ djsÞ
42. The letter is allegedly written by "comrade Milind",
which according to the prosecution's case is one Milind
Baburao Teltumbade alias Jiva, whose name appears at serial
No.15 of the list of C.P.I. (Maoist) - Polit Bureau Members
maintained by the Respondent. Another letter addressed by
"comrade Varvara" addressed to a "comrade Surendra",
according to the prosecution referring to Surendra Gadling,
Appellant herein, refers to the negative public opinion that
various T.V. channels and newspapers were publishing about
the Communist Party (Maoist); the letter further refers to the
Appellant's involvement in the use of lakhs of rupees for
funding the cadre of the organization in the area of
Gadchiroli in Maharashtra and of Bastar in Madhya Pradesh;
the letter also refers to the effect of denominitization (uksVcanh)
on the recruitment of urban cadre of the organization. The
specific references in that letter are quoted below :
J-APEAL-294-2022.odt
ßvki bl ckjs esa fn;s gqvs fo'okl dks cuk;s j[kus es
dke;kc ugh gqvs ftlls gekjs vcZu dWMj es VqV dk [krjk
eglql gks jgk gS vkidks blds fy;s uksVcanh ds nkSjku yk[kksa
#i;s dh QaMhx fd tk pqdh gS ftlesa ls xMfpjksyh vkSj cLrj
esa vkius ftruk QaM miyC/k djokus Fkk og ugh djk;k bl
ckrksa ls la?kVu es vkidks ysdj ukjkth okrkoj.k gS
bl ?kVuk dh {krhiqrhZ rqjar djus dh vko';Drk
gS ,Slk ofj"B dkWejsMks dk ekuuk gS blfy;s vki egkjk"Vª rFkk
NRrhlxB< ds dkWejsMks ls laidZ dj mUgs muds dke esa
xfr'khyrk ykus ds fy;s dgs vkSj nq'euksa ds eukscy dks rksMus
esa viuk lg;ksx djsaÞ
43. The above quotations leave no doubt in ones mind
that in if its contents are proved against the Appellant, it
would demonstrate that the Appellant was indeed a member
of the C.P.I. (Maoist) organization, which is a banned
organization and he was involved at its organizational level
both in terms of arranging its funding in the areas of
Gadchiroli and Bastar and also involved in the organization
of the cadre to wage war against the "enemy", which is the
State.
44. The next letter, which we make reference to is
alleged to have been written by the Appellant Surendra to
J-APEAL-294-2022.odt
"comrade Prakash", whose name finds reference in the list of
C.P.I. (Maoist) - Polit Bureau Members at serial No.1, alleged
by the Respondent to be one Namballa Keshav Rao alias
Basavaraj alias Prakash, the General Secretary of the C.P.I.
(Maoist) organization operating in the District of
Shrikakulam in the State of Andhra Pradesh. The letter refers
to funding of operations through Hawala channels to
comrades in the State of Chhattisgarh and Maharashtra. The
letter also refers to the death of 12 to 20 comrades/operatives
of the party in an encounter, and suggests that the party
needs to take revenge against the enemy for the death of
those comrades. The relevant portions of the letter are quoted
below :
ßeSaus fnukad [email protected]@2017 dks fnYyh tkdj
la?kVu}kjk Hksts x;s Nrrhlx< ds ofj"B lh-lh- dkWejsM ls
eqykdkr dh rFkk mUgsa cLrj rFkk egkjk"Vª esa fd;s tkus okys
vkWijs'ku ds fy;s esjs ikl fn;k x;k QaM gokyk ds ek/;e ls
miyC/k djok;k A ftlds cgqr vPNs ifj.kke fn[kkbZ ns jgs gSA
nq'euks}kjk izpkjhr dh tk jgh ckr dh geys esa gekjs
la?kVu ds 12 rs 20 lnL; ekjs x;s blls gekjs la?kVu ds
lnL;ksa ds eukscy ij vlj iMsxk bls >qBk lkchr djus ds
fy;s ,d QWDV QkbZaMhx desVh dk xBu fd;k tk;s tks ogkW
J-APEAL-294-2022.odt
tkdj ;g izpkjhr djs dh ekjs x;s yksx ;g LFkkuh; funksZ"k
vkfnoklh gS A ftUgsa cnyk ysus ds fy;s nq'euksa }kjk tcju
ekjk x;k gS A blls feMh;k dOgjst gklhy gksdj lkekU;
turk es nq'ekus dh Noh [kjkc gksxh rFkk dsanz ljdkj }kjk ckj
ckj fn;s tk jgs c;ku dh ge vU; fodYi ryk'k djsaxs ij
jksd yxsxh AÞ
45. A further reading of this letter reveals that its
author "Surendra" makes reference to other operatives of the
party, "comrade Rona", "Hany Babu", and "comrade Amit
Bhoumik", and further reference to operations to be carried
out in the city of Pune through its urban cadre. The letter
also makes reference to operations to be carried out in the
jungle by recruiting urban cadre and sending them in such
operations to the jungles. The letter also suggests that this
urban cadre would be used for revenge for the death of 25
persons, who were killed by the enemy (the State). The letter
also refers to enclosure of certain maps giving information of
the movements of Bastar Police and deployment of personnel
of the CRPF (Central Reserve Police Force) in camps, in
order to organize and plan their ambush as a means to avenge
the death of 25 comrades. The above references are quoted
J-APEAL-294-2022.odt
below :
ßvWM dkW- vfer HkkSehd] iquk ;g ges vkWijs'ku rFkk
vcZu dWMj esa izpkj rFkk lsna'k Hkstokus es egRoiq.kZ Hkqfedk
fuHkk jgs gsS A bUgsa la?kVu dh vksj ls vksj vf/kd ftEesnkjh
nh tk ldrh gS A ;g taxy es vkWijs'ku ds fy;s vcZu
dkWejsMks dks fjdzqV djds Hkstus dk dke djus ds fy;s cgqr
mi;qDr O;Drh gS A
gekjs dkWejsMksa us cqdkZiky es tks nq'euksa dh gkykr
[kjkc dh vkSj muds 25 yksx ekjs mlds fy;s c/kkbZ A vHkh
bl ?kVuk ls nq'eu lnesa esa gS A rqjar ,d nks vkSj dkjokbZ
djus dk ladsr izkIr gqvk gS A ml fglkc ls vki Lo;a ns[k
ys A bl i= ds lkFk dqN ud'ks Hkh Hkst jgk gWq ftlesa cLrj
iqfy; vkSj lhvkjih,Q dWEil ds fMIykW;esaUV dh rktk
tkudkjh esjs ikl vk;h Fkh og vkidks vxys ,ecq'k dh
Iykfuax esa dke vk;sxh A
dzkarhdkjh vfHkoknu ds lkFk]
dkW- lqjsanz Þ
46. Then reference can be made to yet another letter
addressed by "Surendra" to "comrade Varvara", wherein it is
stated that the author Surendra has appeared for "comrade
Saibaba" at his trial. This letter also makes reference to the
negative effect of denominitization on the financing of the
organization's operations in Gadchiroli and Chhattisgarh due
to the paucity of funds. The letter further shows the direct
J-APEAL-294-2022.odt
involvement of Surendra in the organization of operations in
the areas of Gadchiroli and Bastar. The letter also makes
reference to information given to the public of an attack
carried out by his comrades on the enemy at Bastar, which
was published through handbills distributed in Gadchiroli
district; the letter also refers to the effect of the attack nation
wide, which the author claims, the nation had taken note of
the strength of the party. The letter also refers to the fact that
the effect of the attacks was felt even by the Central
Government, who took note of the operation. The portions
of this letter are also quoted below :
ßbu ?kVukvksa ls dsanz ljdkj rd fgy x;h gS vk'kk
djrk gq dh gekjs dkWeusMl ,Sls gh cMs vkijs'ku vkids
ekxZn'kZu esa djsaxs A cLrj esa tgkW nq'euksa dh lsaVªy QkslZ de
gS ml txg dh igpku djds cMs geys djus ds fy;s vki ds
funsZ'k dks mu rd igqpk fn;k x;k gS A vk'kk djrs gS ;g
vkWijs'ku ogkW ds dkWejsM~l lQyrkiqoZd djsaxs A ftlls nq'eu
cWdQqV ij tk;sa A eq>s dqN dkWejsM~l ds }kjk feyh tkudkjh
ds eqrkchd mlqj] ikesn] ,eykxq.Mk] ikykpyek] Hksth]
dsjykiky bu txg nq'eu QkslZ dk fMIyk;esaV de gS ftlls
geas ,Ecq'k yxkus esa vklkuh gks ldrh gS AÞ
J-APEAL-294-2022.odt
47. We then refer to the statements contained in the
"Maoist Information Bulletin-34" of July-December 2016
attached from the residence of the Appellant at Pune. The
bulletin specifically refers to various guerrillas operations
conducted under the control of the Central Committee,
Communist Party of India (Maoist) at Gatta village under
Gatta Police Station, Gadchiroli District, where several
Policemen were injured. The bulletin then makes specific
reference to the incident of 23.12.2016, which is subject
matter of the present charge-sheet, which is quoted below :
"On 23 December, PLGA's main, secondary and
base forces as well as the masses in their hundreds burnt
down 76 trucks, three earthmovers and a motorcycle
belonging to four contractors in Surjagarh of Gadchiroli
which were transporting iron-ore from the Surjagarh
mines. The central and state government in collusion
with the mining company Lloyds are hell bent on
opening the mines in spite of the persistent and
vehement opposition by the people of 76 villages
surrounding the Surjagarh hills which will be directly
affected by the mining. It was a people's armed action
against the government-Lloyds Mining Company nexus.
To facilitate mining by the imperialist financed MNC
Lloyds the BJP government is setting up a number of
new police stations and paramilitary camps in and
around Surjagarh and strengthening its 'carpet security'.
For the last eight-nine years the people have been
struggling against the mining project. Now the fascist
J-APEAL-294-2022.odt
Modi government in collusion with the imperialists is
trying to open this project using force and violence. The
people's resistance has also intensified as a result, of
which this incident is a latest example. This action has
halted the mining and transportation work for the time-
being."
The bulletin also published photo graphs of the
charred remains of few of the 76 vehicles carrying iron ore to
the Lloyds Plant from Surjagarh, which, the bulletin claimed
were burnt down by the People's Liberation Guerrilla Army
(PLGA). The contents of the article clearly refer to the act of
burning the trucks to be an act of waging war against the
Government/State. The article also refers to the acts of the
fascist Government acting in collusion with imperialist in
trying open the mining project with Lloyds Mining
Company, which was a Multinational Company. The
references made in the article were obviously reporting an act
of waging war against a duly elected Government.
48. A plain reading of the above referred material, in
the form of the letters and the Maoist bulletins, would leave
us to conclude that if its contents were to be considered, there
would be a reasonable ground for believing that the
J-APEAL-294-2022.odt
accusations made against the Appellant are prima facie true.
49. The learned Counsel for the Appellant has argued
that the material, which was seized from the residence of the
accused in the form of letters contained in the hard-disk
attached during the raid conducted by the Police, could not
be relied upon at all, since the same were attached in breach
of the Standard Operating Procedure under the IT Act, and
are also contrary to the provisions of Sections 45-A and 65-B
of the Evidence Act.
At the outset, we must point out that a plain
reading of the panchanama conducted at the house of the
Appellant records the entire hard-disk from the computer of
the accused was seized. The documents produced before us
do not establish the accusation that the Investigating
Authorities started the computer of the accused at his
residence, transferred the data from the hard-disk and then
shut it down during the operation of seizure. The hard-disk
appears to have been sealed and sent to the forensic
laboratory for analysis. The report of the forensic laboratory
J-APEAL-294-2022.odt
prima facie shows that the cyber crimes technicians accessed
the hard-disk for the first time at the laboratory by means of
his own digital signature, specifying the hash value of the
information contained in the hard-disk at the time it was first
accessed at the lab, creating a clone or mirror image of the
data in the hard-disk, and then re-applying the digital
signature of the technician at the time of shutting down the
hard-disk. A reading of the report would prima facie shows
that what was then used for analysis was the clone or mirror
image copy of the data on the original hard-disk.
We are conscious of the fact that all this material
could be considered as evidence against the Appellant only
after it is proved as admissible evidence at a Trial.
50. We are therefore of the prima facie view that at this
stage, on considering the content of the hard-disk, that is the
content of the letters that we have referred to, though they
are subject to proof under the Evidence Act, and in terms of
procedure set out under the Information Technology Act,
2000, they are nevertheless material considered for deciding
J-APEAL-294-2022.odt
the application for bail. Suffice to state, at this prima facie
stage, the Sessions Court has proceeded to consider the effect
of the contents of the said letters, which would be ultimately
subject to proof at the trial. We find that the Sessions Court
has considered the contents of the letters, the printed
material and the statements/complaint in their right
perspective, and correctly applied the principles enunciated
by the Hon'ble Supreme Court in National Investigation
Agency ..V/s.. Zahoor Ahmad Shah Watali, (supra), Thwaha
Fasal ..V/s.. Union of India (supra) and Union of India ..V/s..
K. A. Najeeb (supra), whilst considering the bail application,
we find no fault in the prima facie conclusions arrived at by
the Sessions Court in considering the material on record, at
this stage, and in terms of the special provisions of Section
43-D (5) of the UAP Act.
51. We now make reference to a judgment of the
Division Bench of this Court passed in Hany Babu ..V/s..
National Investigation Agency and Anr. (supra), which was
rendered on an appeal filed under Section 21(4) of the NIA
Act, wherein the Appellant had challenged an order dated
J-APEAL-294-2022.odt
14.02.2022, passed by the Special Court (NIA) Greater
Mumbai, rejecting the Appellant's application for bail. In that
case, the Appellant Hany Babu was the accused No.12 in
Special Case No.414 of 2022 on the FIR No.4 of 2018 filed
on 08.01.2018, which commenced the investigation in the
(Elgar Parishad) case, wherein the present Appellant is also
an accused. That case was an investigation conducted into
involvement of various accused including the present
Appellant, that led to the violence and death of an innocent
person near Bhima Koregaon in Pune District, on
01.01.2018. A Division Bench of this Court, whilst
considering the bail appeal of Hany Babu has made
references to the analysis of the seized electronic/digital
articles from the residence of the present Appellant, amongst
others and the involvement of the Appellant and other
accused in that case, including Rona Wilson, Shoma Sen,
Mahesh Raut, Comrade M. alias Milind Teltumbade (now
deceased), Comrade Prakash alias Navin alias Ritupan
Goswami (absconding), Comrade Manglu (absconding),
Comrade Dipu (absconding), who were alleged to have
J-APEAL-294-2022.odt
committed acts punishable under Sections 13, 16, 17, 18,
18(B), 20, 38, 39 and 40 of the UAP Act.
52. Hany Babu ..V/s.. National Investigation Agency
and Anr. (supra), makes extensive reference to the very same
letters and bulletin referred to by us, forming part of the
charge-sheet before the Sessions Court at Gadchiroli, it
considers the role of the Appellant in that case, in the light of
the charge of conspiracy in relation to the entire case and his
active involvement as a prominent member of the
Communist Party of India (Maoist), a designated terrorist
organization.
This Court, after making reference to the principles
laid down by the Hon'ble Supreme Court in National
Investigation Agency ..V/s.. Zahoor Ahmad Shah Watali
(supra), has held at para 15 of Hany Babu (supra) as under :
"15. ........The Hon'ble Supreme Court observed that
under the proviso to sub-section (5), it is the court's duty
to be satisfied that there are reasonable grounds for
believing that the accusation against the accused is prima
facie true or otherwise. By its very nature, the expression
"prima facie true" would mean that the
materials/evidence collated by the investigating agency
J-APEAL-294-2022.odt
about the accusation against the accused concerned 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 The Hon'ble Supreme
Court held that the duty of the court at this stage is not to
weigh the evidence meticulously but to arrive at a finding
based on broad probabilities. It was further held that
exercise to be undertaken by the court is different from
discussing merits or demerits of the evidence. The court
is merely expected to record a finding based on broad
probabilities regarding the involvement of the accused in
the commission of the stated offence or otherwise. The
Hon'ble Supreme Court, observing that High Court had
overstepped the jurisdiction under Section 43-D (5) by
holding a mini-trial and weighing evidence, set aside the
order passed by the High Court."
This Court then makes reference to the scope of
Section 43-D (5) of the UAP Act and to the judgments of the
Supreme Court in Union of India ..V/s.. K. A. Najeeb
(supra), and in Thwaha Fasal ..V/s.. Union of India (supra),
and considers the applicability of the provisions Section 10 of
the Indian Evidence Act, 1872, to the case, has held at para
20 as under :
"20. The broad principle emerging from the above
provision is that the acts and declarations of the
conspirators which have been undertaken during various
times and places are admissible in evidence to show that
by the act of conspiring together, the conspirators as a
J-APEAL-294-2022.odt
body has assumed themselves individuality and whatever
is done and said by one in furtherance of a common
design is an act of all. The illustration appended to
Section 10 would show that the material placed on
record, which gives an account of the conspiracy and
reference to the terrorist acts, would be relevant against
the Appellant, and this provision applies to the case at
hand. In view of Section 43-D(5) and the dicta of the
Hon'ble Supreme Court referred to above, material
placed before us in totality will have to be accepted at this
stage, and accordingly, the role and the material against
the Appellant will have to be examined."
This Court then lists out the two sets of the
document referred to in that charge-sheet, the first being a
compilation of document seized from Hany Babu and the
second compilation being a document seized from the
Co-accused and other material relevant to that case, which
include the various letters found in the hard-disk seized from
the residential premisses of the present Appellant and the
catalogue of weapons, which is also referred to in the present
charge-sheet. This Court then elaborately analysed the
material under reference and came to a prima facie
conclusion of the involvement of the Appellant in the
context of Section 43-D of the UAP Act. It then refers to the
very same letters, which form part of the present charge-
J-APEAL-294-2022.odt
sheet, to which we have made reference in the earlier part of
this judgment and arrives at the following findings :
"46. A communication in Hindi from comrade
Surendra (Surendra Gadling) (Accused No.3) to Prakash
(Ritupan Goswami) (WA-2) is HDD Cyp 172/18 Ex. 1
Ltr-2704 Cyp 172/18 Ex.1\Users\Sumit\Desktop\Pen
Drive Backup 29.03.2015\Local Disk\Red Ant Dream\
Material 639-640. It states that the enemy (State) has
killed 10 to 20 party members, and a fact-finding
committee is necessary to be organised, which will
publicise that those killed are innocent tribals. Media
coverage needs to be created so that a negative image is
created in the eyes of the general public. He then refers to
the propaganda in favour of Saibaba at Delhi, and for
that purpose, he is in contact with comrade Rona (Rona
Wilson) (Accused No.2) and HB (Appellant), and
comrade Prakash (Ritupan Goswami) (WA-2) should
give them instructions. He then congratulated comrade
Prakash (Ritupan Goswami) (WA-2) that the party
comrades that the party had killed 25 persons of the
enemy. The learned ASG informs that these 25 persons
were police personnel. The letter also refers to gathering
information on police and CRPF camps deployment,
which would suit ambush planning."
The judgment then makes reference to the role of
the Appellant in that case, seen in the light of the charge of
conspiracy, in relation to the entire case of the NIA in that
regard. Observations are made to that effect in para 49 of the
judgment, which reads as under :
J-APEAL-294-2022.odt
49. The role of the Appellant cannot be seen
separately as sought to be put forth by the learned
Counsel for the Appellant. It will have to be seen in the
light of the charge of conspiracy as to the entire case of
the National Investigation Agency in this regard. The
documents highlighted above and the others on record
and the facts unearthed during the investigation, based
on which we must proceed at this stage, show that the
Appellant is an active and prominent member of the CPI
(Maoist) Party. The CPI (Maoist) Party is designated as a
terrorist organisation. The CPI (Maoist) is working to
establish a people's government through violent means in
an armed struggle. It wants to undermine and seize
power from the State. The Appellant, along with other
accused, are working for different mass organisations to
further the activities of the CPI (Maoist) Party. The CPI
(Maoist) Party has chalked out a detailed strategy for the
furtherance of its role to overthrow the lawful
Government, and the same strategy and tactics are
adopted by the accused and the Appellant. The material
placed on record by NIA shows that the platform of the
Elgar Parishad Programme was used by having
established underground contact with the banned
organisation CPI (Maoist) Party through its activists
working in Delhi, including Appellant. This led to unrest
and the death of one person. The Appellant was fully
entrenched in the activities of the CPI (Maoist) Party, a
banned organisation, and the Revolutionary Democratic
Front (RDF), also a banned organisation. The chart
showing e-mail communications and contacts between
the accused is part of the record."
It further makes reference to the various
communications in Hindi from the present Appellant to
Prakash and other party comrades, which were seized in that
case from the residence of the Appellant and produced as part
of the charge-sheet in the present case. The observations at
para 52 of the judgment read as under :
J-APEAL-294-2022.odt
"52. In this context, the case of the NIA in the
chargesheet is that members of the banned organisation
CPI (Maoist) have engaged in a protracted armed
struggle based on guerrilla warfare, and they have
attacked and killed many government security forces
from time to time and looted their weapons and acquired
materials required to prepare the explosives. There is a
specific assertion of killing the army personnel. Specific
documents on record, such as communications in Hindi
from Surendra (Surendra Gadling) (Accused No.3) to
Prakash (Ritupan Goswami) (WA-2), referred to earlier,
congratulate the party comrades that the party had killed
25 persons of the enemy that is police personnel. The
letter also refers to gathering information on police and
CRPF camps deployment, which would suit ambush
planning. A document seized from the Appellant is about
integrated weapon training. Based on this, NIA alleged
that the CPI (Maoist) has carried out the killings
methodically, engaging in armed conflict. The material
shows that by treating the armed forces of the State and
the police as enemies by use of firearms and weapons, the
members of the police and armed forces have been made
targets and killed, and the conspiracy also refers to
elimination of constitutional functionaries. There is,
therefore, no merit in the contention of the Appellant
that no terrorist act is alleged."
53. Independent of the observations of this Court in
Hany Babu ..V/s.. National Investigation Agency and Anr
(supra), we have arrived at the prima facie conclusions of the
involvement of the Appellant evident from the very same
letters and "Maoist Information Bulletin-34" seized from the
Appellant herein. The material on record thus leads us to
J-APEAL-294-2022.odt
conclude prima facie, and keeping in view the provisions of
Section 43-D (5) of the UAP Act, the involvement in the
organization of the Surjagad incident referred to in a charge-
sheet and his membership of the banned organization
Communist Party of India (Maoist).
54. We now deal with the contentions of the Appellant
that the order of sanction dated 28.05.2019 granted by the
Government of Maharashtra to the prosecution of the
Appellant is not in terms of Rules 3 and 4 of the UAP Rules
2008, in that, it is beyond the time frame of seven working
days set out therein. The argument is based upon a
submission that the provisions of the Rules are mandatory,
and if not followed, would vitiate the entire prosecution.
55. This contention was considered by the High Court
of Kerala in Roopesh ..V/s.. State of Kerala and Ors. (supra),
as to whether a delay of six months in granting sanction
under the said Rules would be violative of the time frame
prescribed in the UAP Rules. The High Court of Kerala
considered the effect of the 2008 amendment to the UAP
J-APEAL-294-2022.odt
Act and whether the timeline set out in Rule 4 and non-
adherence to the timelines would vitiate the entire trial. The
Kerala High Court whilst considering this issue has opined
that the provisions of sanction and the timeline stipulated
therein are mandatory and sacrosanct and has held thus :
"22. As we already noticed, UA(P)A was in force from
the year 1967 with the requirement of a sanction by the
appropriate Government without any stipulation of time.
The enactments which sought to prevent terrorist
activities brought out subsequently also had the very
same requirement of a consent without any stipulation of
time. From the wealth of experience gleaned over more
than half a century, when such enactments were in force;
the Parliament consciously in the year 2008 brought in a
provision where the requirement was not only a sanction
form the appropriate Government but a prior
recommendation from an Authority constituted under
the Act, which had to be perused by the appropriate
Government before sanctioning a prosecution. As has
been noticed in the various precedents the provisions
under the UA(P)A have an added rigour. The
investigating agency is given a wider latitude in so far as
the time frame for completing the investigation which in
turn makes it more rigorous for the accused, which is
made further harsh by the restrictions in granting bail as
found in sub-sections (5) & (6) of S.43-D, the
presumption under S.43-E and the overriding effect to
the enactment as conferred under S.48. This is the
context in which S.45 (2) has been incorporated, with
provision, for an Authority to be constituted for an
independent review of the evidence gathered, whose
recommendation also has to be considered before the
sanction is granted. There is also provided a time frame
J-APEAL-294-2022.odt
for the recommendation of the Authority to be made and
the sanction of the Government issued; hitherto not
included in identical penal statutes. The time frame, as
we noticed is unique and it brings in consequences
hitherto unavailable and the viability of a second
proceedings would be on a very sticky wicket; especially
when it could enable the investigating agency to move
the Authority and the Government repeatedly if an
earlier attempt is unsuccessful. We hasten to add that we
are only thinking aloud and that contention would have
to be left for another day, another proceeding, to be
answered; as we are not now on that aspect and we would
resist the temptation to make an obiter.
23. We are of the opinion that the provision for
sanction is mandatory and the stipulation of time also is
mandatory and sacrosanct. We have noticed the
legislative history of the enactments and the provision for
sanction incorporated thereunder, to take cognizance of
charges based on activities labelled and defined as
unlawful, terrorist and disruptive. It has to be found that
the sanction under the UA(P)A granted after six months
from the date of receipt of recommendation of the
authority is not a valid sanction. It also has to be stated
that the sanction orders merely speak of the Government,
after careful examination of the records of investigation
in detail, being fully satisfied of the accused having
committed an offence punishable under Ss.20 and 38 of
the UA(P)A. The sanction order merely referred to the
records of investigation in the respective crimes, the letter
of the State Police Chief and the recommendation of the
authority constituted under S.45 of the UA(P)A.
24. It is to be emphasized that S.45(2) of the UA(P)A
makes it mandatory for the Authority to make an
independent review of the evidence gathered in the
course of investigation and make a recommendation
within such time as prescribed, to the appropriate
Government. This does not absolve the appropriate
J-APEAL-294-2022.odt
Government from applying its mind since otherwise
there was no requirement for a further sanction from the
appropriate Government. We have seen from the
precedents that sanction for prosecution is a solemn and
sacrosanct act which requires the sanctioning authority to
look at the facts and arrive at the satisfaction, of
requirement of a prosecution. It was held in Anirudh
Singhji Karan Singhji Jadeja [supra] that despite the letter
of the DSP being exhaustive, the Government ought to
have verified that the allegations as stated by the DSP
were borne out from the records. In the case of UA(P)A
despite the independent review made by the Authority
constituted under S.45, the Government has to arrive at
a satisfaction without merely adopting the
recommendation of the Authority. The Government, it is
to be emphasized, has no obligation to act in accordance
with the recommendation of the Authority. The sanction
is of the Government and not the Authority and the
recommendation of the Authority only aids or assists the
Government in arriving at the satisfaction. In the present
case there is no such application of mind discernible, but
for the reference to the recommendation of the Authority
and the laconic statement of the Government, that details
have been verified, on which satisfaction is recorded as to
the offence having been committed by the accused, for
which prosecution has to be initiated. We find the
sanction order of the UA(P)A to be not brought out in
time, as statutorily mandated and bereft of any
application of mind; both vitiating the cognizance taken
by the Special Court."
56. A Division Bench of this Court in Mahesh
Kariman Tirki and Ors. ..V/s.. State of Maharashtra (supra),
had the occasion to consider the same question and after
referring to Roopesh ..V/s.. State of Kerala and Ors. (supra),
J-APEAL-294-2022.odt
has concluded that the provisions of Rule 3 and 4 are not
mandatory, in the sense that their infraction does not ipso
facto vitiate the sanction accorded unless the accused can
demonstrate some prejudice or failure of justice. Whilst
considering the provisions of Rule 3 and 4 of the 2008 UAP
Rules and the judgment of the Kerala High Court in Roopesh
..V/s.. State of Kerala and Ors. (supra), the Bombay High
Court has held as under :
"7. Of extreme significance, in our considered view, is
the amendment to the provisions of Section 45 of the
UAPA which is brought about by Act 35 of 2008.
(xxx) We are conscious of the view of the Kerala
High Court in Roopesh14, that the period prescribed
in Rules 3 and 4 of the 2008 Rules is mandatory. We
have also noticed the contrarian view of the Punjab
and Haryana High Court. We are further informed
that the Special Leave Petition filed by the State of
Kerala is withdrawn and the question of law is kept
open. While we have no hesitation in holding that
the requirement of independent evaluation of the
evidence on record by the appointed authority and
submission of report, in contradistinction with
communication conveying the recommendations, is
mandatory, with deepest respect to the view of the
Kerala High Court in Roopesh15, we are not inclined
to hold that the time limit prescribed for making the
recommendation or according sanction is mandatory.
The prima facie inference that use of the word "shall"
raises a presumption that the provision is mandatory
may stand rebutted by other considerations and one
J-APEAL-294-2022.odt
extremely relevant consideration is the consequences
which may flow from such construction. We are not
inclined to construe the time frame as inexorable,
breach whereof may have the unintended
consequence of nipping the prosecution in the bud.
We are not suggesting even for a moment that the
time period can be violated with impunity. Albeit
directory, the time frame must be substantially
complied with. The effect of gross delay in
submitting recommendatory report and according
sanction may have to be examined on case to case
basis, and the principles underlying Sections 460
and 465 of the Code of 1973 may come into play."
57. We must take note of the fact that Mahesh
Kariman Tirki and Ors. .V/s.. State of Maharashtra (supra),
was a judgment rendered after trial, that is to say whilst
testing a judgment of conviction of the Appellants therein,
for the offences punishable under Sections 13, 18, 20, 38 and
39 of the UAP Act. We also take note of the fact that the
Bombay High Court has noted that ordinarily, substantial
compliance of Rule 4 is obligated, however, the accused will
have to demonstrate some prejudice or causation or failure of
justice due to the failure to adhere to the time frame
statutorily prescribed under the Rules. In Mahesh Kariman
Tirki (supra), the accused did not assail the time frame under
J-APEAL-294-2022.odt
Rule 4 during the course of trial nor assailed the sanction
order on the basis that there was infraction of the statutorily
prescribed time period for making the recommendation and
according the sanction. Further, in that case, the sanction
order was not challenged during the course of the trial on its
merits, that is to say on the ground of non-consideration of
the material before the Authority whilst according the
sanction.
We therefore deem it appropriate to leave this
question open for the Appellant, if he is desirous to take up
such objection, on its merits at the stage of charge or trial, if
deems it fit. The observations made herein on the question of
grant of sanction are only prima facie observations and we
leave it open for the Sessions Court, if such objection is taken
on its merits to deal with the same during the stage of trial.
58. On a consideration of the totality of the material
on record alleged against the Appellant, we find that there is
reasonable ground for believing the accusations of the
National Investigation Agency against the Appellant having
J-APEAL-294-2022.odt
been part of a conspiracy and abetting the commission of
terrorist acts, as also having direct membership of the banned
organization Communist Party of India (Maoist) are prima
facie to be true. We have also considered that there is material
on record of the charge-sheet would prima facie leads to the
conclusion that the threat posed to the public and the
seriousness of the entire conspiracy alleged against the
Appellant would far out weigh the other considerations put
forth by the Appellant, namely that he is a prominent
Advocate with a long unblemished record at the bar, that he
is the sole bread winner of his family or that he has not been
involved in any earlier crime, would require to be rejected.
59. We find that the learned Sessions Judge, whilst
passing the impugned order, has referred to the relevant
provisions of the UAP Act, and considered the application of
the accused Surendra Gadling on the anvil of the provisions
of Section 43-D (5) of the UAP Act. The learned Sessions
Judge has also extensively considered the material on record
and has, after applying the principles of law laid down in the
various judgments of the Supreme Court on considerations
J-APEAL-294-2022.odt
for grant of bail in view of the provisions Section 43-D (5) of
the UAP Act, correctly arrived at the conclusion that there are
reasonable grounds for believing that the accusations made
against the Appellant in the charge-sheet are true. We find no
reason to arrive at a conclusion different from the one taken
by the Sessions Court, whilst rejecting the Appellant's bail
application.
60. For the reasons stated by us hereinabove, we reject
the present criminal appeal.
(VALMIKI SA MENEZES, J.) (VINAY JOSHI, J.)
TAMBE
Digitally Signed By:ASHISH
ASHOKRAO TAMBE
Personal Assistant
to Hon'ble JUDGE
Signing Date:31.01.2023 14:33
