2014 (3) TMI 1219 - HC - Indian Laws

Grant of bail - Explosion of Bomb - purchase of SIM card and cell phone, that too, in benami names, at different places and the cell phone, in turn, was used for explosion of the bomb - HELD THAT - The expression of the opinion in this behalf must be in such a way that, it does not have any bearing upon the trial. The purpose for which the Parliament employed the expression prima facie must be borne in mind. If, at the time of considering the application of bail, the Court takes the view that the accusation is not true, the prosecution will suffer a serious dent. Similarly, if the Court takes the view that the accusation is true, the Court can be accused of, pre-judging the charges. The Court has to adopt what is known as Marjala Kishora Neethi (The care which a cat is expected while carrying the kitten in its mouth from one place to another). The formation of opinion must be, for the limited purpose of considering the application for bail. This expression prima facie , is used in civil cases also, particularly in the context of deciding the applications for temporary injunctions. Broadly understood, it connotes that, without the help of any other material, the one, which is before the Court, must be sufficient to accept the proposition put forward by the concerned party. In the context of Section 43-D of the Act, the adjective, prima facie qualifies the strength or nature of the case of the prosecution, at the stage when the application for bail is being considered, which obviously, is before trial. The other expressions occurring in proviso, that assume significance are, reasonable ground and true . The allegation against the appellants is that while one of them purchased a SIM card, the other purchased a cell phone, and those devices were used in the explosion. The identified SIM card and cell phone are not those, which were referable to the bomb, that was exploded, but to the one, which was stated to be an unexploded device, recovered from the scene. While the SIM card is said to have been purchased in the State of Jharkhand, the cell phone, in the State of Haryana - On applying the test of the very concept of prima facie , we find it difficult to hold that the accusation against the appellants can be said to be true. The reason is that the prosecution has a very long way to go, to prove its contents. This much however can be said that, if the things exist where they stand now, it would be difficult for a common man, not to speak of a Court, to hold the appellants as guilty. The evidence of the witnesses has to be adduced, they must come out clean in the cross-examination and several links, that are necessary to make it a complete chain; must be provided. None of the factors, which we enlisted in the preceding paragraph, are present here. Though extensive arguments are made on the basis of the statements recorded from the listed witnesses, we desist from dealing with them, lest the discussion impacts the trial - An application filed by that very witness raising objection to the recording of the statement and the truth thereof is said to be pending. The reason that prompted the facilitating of a meeting, or discussion between A-6 and another person, connected with the offence, that too, in a high security zone of the prison, or the factors, that warranted the recording of the statement by a Court at Delhi, where no proceedings are pending; are to be explained by the prosecution, over the period. It is directed that A-1 and A-2, i.e., Devendra Gupta and Lokesh Sharma in Special Sessions Case No. 3 of 2013 shall be released on bail on their executing bond, for a sum of Rs. 50,000/- each, with two sureties each, for like sum, to the satisfaction of the trial Court, unless their detention is warranted under any other order passed by a Court of competent jurisdiction - the Criminal Appeal is allowed.

Summary

Issues Involved:
1. Legality of bail granted to the appellants under Section 439 of Cr.P.C.
2. Applicability of Section 43-D of the Unlawful Activities (Prevention) Act, 1967.
3. Evaluation of the evidence and accusations against the appellants.
4. Procedural and substantive fairness in the investigation and prosecution.

Detailed Analysis:

1. Legality of Bail Granted to the Appellants:
The appellants, accused Nos. 1 and 2, filed a bail application under Section 439 of Cr.P.C., which was initially granted by the trial court. However, the respondent filed an appeal under Section 21 of the NIA Act, leading to the Division Bench of the High Court remanding the case back to the trial court with instructions to consider Section 43-D of the Act. The trial court, upon reconsideration, dismissed the bail application, citing the gravity of the accusations and the provisions of Section 43-D, which restricts bail unless the court believes the accusations are prima facie not true.

2. Applicability of Section 43-D of the Unlawful Activities (Prevention) Act, 1967:
Section 43-D of the Act imposes stringent conditions for granting bail in cases involving terrorist activities. The trial court, after remand, interpreted the taking of cognizance of the offences as sufficient to conclude that the accusations were prima facie true. The High Court, however, found this approach flawed, emphasizing that the mere taking of cognizance does not automatically satisfy the requirement of reasonable grounds to believe the accusations are prima facie true. The court highlighted that a detailed examination of the evidence is necessary to form such an opinion.

3. Evaluation of the Evidence and Accusations Against the Appellants:
The High Court scrutinized the evidence presented by the prosecution, including the alleged purchase of a SIM card and cell phone by the appellants, which were purportedly used in the explosion. The court noted the lack of direct evidence linking the appellants to the crime, such as eyewitness accounts or mechanical evidence like CCTV footage. The court also observed that the charge-sheets did not specify the roles of the appellants in planting or exploding the bombs, thus failing to establish a prima facie case against them.

4. Procedural and Substantive Fairness in the Investigation and Prosecution:
The court expressed concerns over the procedural fairness of the investigation, particularly the handling of the alleged confessional statement of A-6 and the transparency of the identification parade. It also noted the differential treatment of the appellants compared to other accused who were granted bail. The court emphasized the principle that an accused is presumed innocent until proven guilty and that pre-trial detention should not be punitive but only to ensure the accused does not interfere with the prosecution.

Conclusion:
The High Court concluded that the trial court failed to properly apply the principles governing the grant of bail under Section 43-D of the Act. It found that the evidence presented did not establish reasonable grounds to believe the accusations against the appellants were prima facie true. Consequently, the court allowed the appeal, directing the release of the appellants on bail, subject to certain conditions, while reiterating that this decision was only for the purpose of bail and not a judgment on the merits of the case.