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TMI Blog2014 (3) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... ression 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 also in relation to the very incident. 2. Having regard to the gravity of the incident, the case was handed over for investigation, to Central Bureau of Investigation (CBI). Thereupon, the CBI reregistered the case as R.C. No. 5(S)/2007, citing the same provisions of law. Charge-sheet was also filed by the CBI on 13-12-2010 against several accused, including Devendra Gupta alias Babby, alias Ramesh, and Lokesh Sharma alias Ajay Tiwari alias Ajay alias Kalu, accused Nos. 3 and 4. No charge-sheet was filed against four more accused, viz., Sandeep V. Dange, Ramchandra Kalsangra, Sunil Joshi, Nabakumar Sarkar alias Asimanand. When the case was pending trial, the National Investigating Agency (NIA), the respondent herein, was constituted by the Government of India under the National Investigation Act, 2008 (for short 'the NIA Act'). Further investigation was handed over to the said agency. The respondent, in turn, filed another charge sheet on 16-05-2011 alleging certain offences under various provisions of law, including the provisions of the Unlawful Activities (Prevention) Act, 1967, (for short 'the Act'). There is some uncertainty as regards array of the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, the so-called change of mind of A-6; are nothing but stage-managed events. He contends that the identification parade was conducted after the photographs of the appellants were widely publicised. 8. He further submits that the lack of transparency in the entire episode is evident from the fact that the so-called statement under Section 164 Cr.P.C., by A-6, was got recorded before a Magistrate at Delhi, where no case, whatever, is pending, and the leakage thereof by the investigation agency to the press. He submits that it speaks volumes about the intention of the respondent, to take advantage of an unfortunate incident, to implicate an otherwise respectable organization. Learned counsel submits that even from a perusal of the selected and partly covered documents, filed along with the charge-sheet, it becomes clear that the versions said to have been recorded from the various witnesses, such as P.Ws. 118, 129, 130 the artificiality is evident. He submits that the lack of consistency on the part of the respondent is evident from the fact that A-7 and A-9 in the case were granted bail by the trial Court, way back on 26-11-2012 on the ground that charge-sheet was not filed within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 13, 5 read with sections 16, 18, 19, 23 of Unlawful Activities (Prevention) Act, 1967 as amended in the year 2008, it is deemed that this court has already come to the conclusion that there are reasonable grounds to believe that the accusations against the petitioners are prima facie true. Therefore, in view of the Provision to Sub Section 5 to Section 45(D) of Unlawful Activities (prevention) Act, 1967, even though, the petitioners are in judicial custody since more than two years, they are not entitled for bail. Hence, the petition is liable to be dismissed. 13. From a reading of the said paragraph, it becomes clear that the trial Court did not take into account, any material whatever, which formed part of the record, but simply formed an opinion that, the taking of cognizance of offences, under the relevant provisions of the Act; can lead to the conclusion as to the existence of reasonable grounds to believe that the accusation against petitioners is prima facie true. We are afraid whether this accords with the requirement under Section 43-D of the Act, or the principles, that govern the grant of bail for the accused, alleged to have committed offences punishable under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extraordinary situations, and in particular, to deal with the orchestrated crimes through organizations, aimed at destabilization or causing damage to the country. The Act enables the Government to impose prohibition on the organizations after following the prescribed procedure. Once an organization is prohibited under the Act, any person associated with it, becomes amenable for trial, for the offences punishable under the various provisions of the Act, apart from other penal enactments. The provisions of the Act also get attracted, if an individual, though not associated with any prohibited organization, indulges in disruptive and terrorist activities, in association with other individuals. 20. Having regard to the gravity of the offences that become triable under the provisions of the Act, the Parliament introduced Section 43-D of the Act, making it some-what difficult for a person accused of such offence, to get bail. The relevant portion thereof reads, Sec. 43-D. Modified application of certain provisions of the Code: xxx xxx (5) 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 puni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of opinion must be, for the limited purpose of considering the application for bail. 24. Before undertaking further discussion, it is important to take note of the meaning of the words prima facie . It is a Latin expression, and its English equivalent is, at first appearance . In Webster dictionary, its meaning is given as under: Having any appearance of proving the fact though it may not constitute certain proof. 25. In The Law Lexicon of P. Ramanatha Aiyar, the following meanings are given: A prima facie case is that amount of evidence which would be sufficient to counterbalance the original or general presumption of innocence, and warrant a conviction if not then encountered and controlled by evidence tending to contradict it and render it improbable, or to prove other facts inconsistent with it. Prima facie, in criminal cases, means proof beyond all reasonable doubt. Prima facie evidence. Prima facie evidence of a fact, says Mr. Justice Story, is such evidence as, in the judgment of the law, is sufficient to establish the fact, and, if not rebutted, remains sufficient for that purpose. Other Definitions. Prima facie evidence is evidence which, standing alone and unexplained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been guilty of an offence, which is punishable with death or imprisonment for life. Under Section 437 Cr.P.C., the burden is on the prosecution to show existence of reasonable ground for believing that the accused is guilty. Hence, the presumption of innocence, which always runs in favour of the accused, is displaced only on the prosecution showing existence of reasonable ground to believe that the accused is guilty. (See Union of India v. Thamissharasi, (1995) 4 SCC 190, and Union of India v. Shiv Shankar Kesari, (2007) 7 SCC 798). 98. Coupled with the above, it is also noticeable that the proviso to Section 43-D(5) does not require a positive satisfaction by the court that the case against the accused is true . What is required is a mere formation of opinion by the court on the basis of the materials placed before it. The formation of opinion cannot be irrational or arbitrary. Such formation of opinion cannot be based on surmises and conjectures; but must rest on the materials collected against the accused. Since the presumption of innocence runs in favour of the accused, it logically follows that if there are, in given circumstances, grounds for believing that the case, agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ually shaken the nation, and where allegations of huge amount of money, changing hands, were made with tonnes of supporting material; ultimately ended almost with a covering letter of apology, while returning the amount confiscated from the accused. In contrast, a Scheduled Caste Leader, who made his way from a poor family to national level, was convicted on the allegation that he took a bribe of Rs. 1 lakh, in relation to a non-existent contract on the basis of a sting operation by an otherwise non-descript news agency, at that time. If the stories in the magazines in the recent past are to be believed, the fame of the sting operation enabled the person heading it; to acquire property, worth few thousands of crores of rupees, whereas the victim thereof, who felt it a matter of pride to have undergone detention of more than one year during emergency; met with an untimely death under the burden of humiliation, when he was branded as a threat to the national security , when his bail petition was being heard. It is a different matter that the 'time', the ultimate leveler; made the master sting operator to orchestrate a complaint against himself, and now he may be realizing tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re dealt with, on the typical facts of those cases. We are of the view that a decent balance needs to be maintained between the mandate under the proviso to Section 43-D(6) of the Act, on the one hand, and the right of an accused to be granted bail, particularly, after the charge-sheet is filed, on the other hand. Certain factors may be of substantial guidance in this behalf. Here itself we make it clear that what we propose is a humble attempt, and by no means, it is an exhaustive exercise. 35. The following instances or circumstances, in our view, would provide adequate guidance for the Court to form an opinion, as to whether the accusation in such cases is prima facie true : 1) Whether the accused is/are associated with any organization, which is prohibited through an order passed under the provisions of the Act; 2) Whether the accused was convicted of the offences involving such crimes, or terrorist activities, or though acquitted on technical grounds; was held to be associated with terrorist activities; 3) Whether any explosive material, of the category used in the commission of the crime, which gave rise to the prosecution; was recovered from, or at the instance of the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cers on the allegations of violation of human rights. An Officer of the rank of the Superintendent of Police committed suicide, on being accused of violating human rights and ordered to be arrested. The instances of similar nature in civilian life were also plenty. 40. Reverting to the facts of the case, 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. 41. It is not as if those two objectives are explosive in nature. 3/4th of the country's population is now using cell phones and SIM cards. Even according to the prosecution, the appellants are not the purchasers of the SIM card and the cell phone. There is some uncertainty as to number and manner of purchase of such objects. 42. The entire record is placed before us, and learned Senior Counsel for the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culminated in the commission of the terrorist act in the instant case on that fateful afternoon of May 18, 2007, and other suspects who sheltered/shielded/harboured the accused/suspects, known and unknown. 47. The charge-sheets, as of now, are silent as to who planted the bombs and who exploded them. In this state of affairs, it is difficult to conclude that there exists reasonable ground to believe that the accusation against the appellants is prima facie true. 48. 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. 49. Some other important reasons that weigh with us are that the only basis for implicating the appellants herein, viz., the alleged confessional statement of A-6; is attacked from several angles. 50. An application filed by that very witness raising objection to the recording of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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