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TMI Blog2024 (5) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... to be enlarged on bail founding such right on Article 21 of the Constitution of India. This was in the case of Najeeb, and in that judgment, long period of incarceration was held to be a valid ground to enlarge an Accused on bail in spite of the bail- restricting provision of Section 43D(5) of the 1967 Act. Pre- conviction detention is necessary to collect evidence (at the investigation stage), to maintain purity in the course of trial and also to prevent an Accused from being fugitive from justice. Such detention is also necessary to prevent further commission of offence by the same Accused. Depending on gravity and seriousness of the offence alleged to have been committed by an Accused, detention before conclusion of trial at the investigation and post-chargesheet stage has the sanction of law broadly on these reasonings. But any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in the facts of a given case. These would be the overarching principles which the law Courts would have to apply while testing prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar, Vinayak Sharma, Vatsal Joshi, Anuj Udupa, Yogya Rajpurohit, Satwika Thakur, Shubham Mishra, Siddhant Kohli, Anirudh Bhatt, Advs. and Arvind Kumar Sharma, AOR JUDGMENT ANIRUDDHA BOSE, J. 1. The Appellant before us assails the order of a Division Bench of the High Court of Judicature at Bombay passed on 17.01.2023, disposing her application for bail with liberty to approach the Trial Court for filing a fresh application for bail. 2. The Appellant was detained on 06.06.2018 in connection with First Investigation Report ( FIR ) No. 04/2018 dated 08.01.2018 registered with Vishrambaug Police Station, Pune alleging commission of offences Under Sections 153A, 505(1b), 117 read with Section 34 of the Indian Penal Code, 1860 ( 1860 Code ). The complaints therein related to violence that broke out at a function organised by Elgar Parishad. Certain acts of violence had taken place at Shanivarwada, Pune on 31.12.2017 thereafter. The prosecution's case is that in the said programme, provocative speeches were delivered and there were cultural performances which had the effect of creating enmity between caste groups, resulting in disruption of communal harmony, violence, and loss of life. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( NIA ) on 24.01.2020 and the same case was renumbered as RC- 01/2020/NIA/MUM, with NIA police station, Mumbai. The Special Court held that prior directions to maintain secrecy in respect of identity of KW2 and KW4 ought to be set aside. The names of KW2 and KW4 thus stood removed from the list of protected witnesses. This was done mainly on the ground that copies of statements of those two witnesses had been supplied to the defence Under Section 207 of the Code of Criminal Procedure, 1973 ( 1973 Code ), which transmitted their names and identities. KW4 is Kumarasai, whose statement we have referred to earlier in this paragraph. 5. On 15.11.2018, the initial chargesheet was submitted by the State Police invoking allegations of commission of offences Under Sections 153A, 501(1)(b), 117, 120B, 121, 121A, 124A 34 of the 1860 Code read with Sections 13, 16, 17, 18, 18B, 20, 38, 39 40 of the 1967 Act. The Appellant was implicated in the said chargesheet as Accused No. 4 for having committed offences under the aforesaid provisions. In column 10 of this chargesheet, under the heading Details of Accused charge-sheeted (with absconding Accused) names of Sudhir Prahlad Dhavle, Rona Jacob Wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Salim, as reported in (2014) 1 SCC 258. 3. Hence, the following order is passed: ORDER (i) Leave to amend is granted to add N.I.A. as a party Respondent. (ii) Amendment shall be carried out within a period of two weeks from today. (iii) Office to take steps to place this matter before the appropriate Division Bench. (iv) The applicant shall supply second set of this application. 8. The Division Bench heard the bail application and by an order passed on 17.01.2023, which is assailed before us, disposed of the Appellant's prayer for bail, giving liberty to the Appellant to approach the Trial Court for filing a fresh application for bail. Prior to the passing of the order which is impugned before us, the NIA had submitted a second supplementary chargesheet dated 09.10.2020, implicating seven more persons as Accused in the case. They are Anand Teltumbde, Gautam Navlakha, Hany Babu, Sagar Gorkhe, Ramesh Gaychore, Jyoti Jagtap and Stan Swamy. It is the case of the prosecution that the second supplementary chargesheet filed by the NIA contains certain incriminating materials against the Appellant as well. It is primarily on account of the second supplementary chargesheet being filed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have gone through the entire evidence on record and decided whether the acquittal of Basti Ram should be sustained or not. However, in the absence of any discussion or analysis of the evidence by the High Court in the first appeal, we are of the opinion that a right of appeal available to Basti Ram would be taken away if we were to consider the case on its merits without the opinion of the High Court. Additionally, for a proper appreciation of the case, it is necessary for us to have the views of the High Court on record. This is important since the High Court has reversed a finding of conviction given by the trial Judge. 11. This was a case where the Respondent-Accused was implicated in offences of sexual assault and kidnapping of a minor girl along with other related offences and the Accused was convicted by the Trial Court. Conviction of the Respondent along with the co-Accused was set aside by a Single Judge of the High Court. It was contended by the State before this Court that the judgment of acquittal was passed by the High Court ignoring the statement of prosecutrix, made Under Section 164 of the 1973 Code, as also her testimony before the trial court. It was in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only to a Bench of two Judges of the High Court. 27.2. And, secondly as far as Prayer (b) of the petition for clarification is concerned, it is made clear that inasmuch as the applicant is being prosecuted for the offences under the MCOC Act, 1999, as well as the Unlawful Activities (Prevention) Act, 1967, such offences are triable only by the Special Court, and therefore application for bail in such matters will have to be made before the Special Court under the NIA Act, 2008, and shall not lie before the High Court either Under Section 439 or Under Section 482 of the Code. The application for bail filed by the applicant in the present case is not maintainable before the High Court. 27.3. Thus, where the NIA Act applies, the original application for bail shall lie only before the Special Court, and appeal against the orders therein shall lie only to a Bench of two Judges of the High Court. 13. The factual position which forms the background of the present Appellant's plea for bail is, however, different from that in which the aforesaid judgments were delivered. The Appellant before us, at each stage, had applied for bail before the Court which, at that point of time, had regu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application before us, registered as CRL MP No. 166531 of 2023, in which various ailments from which she suffers have been cited and prayer is made for bail on medical grounds as well. 15. Having taken these factors into account, we do not think it would be in the interest of justice to remand the matter to the Special Court constituted under the 2008 Act at this stage. We are taking this view as in our opinion, it would not have been beyond jurisdiction of the High Court Division Bench, even in exercise of appellate power Under Section 21(2) of the 2008 Act, to examine the second supplementary chargesheet as well. For these reasons, we decline to accept the preliminary objection raised by Mr. Nataraj and shall proceed to consider here, the Appellant's plea for bail on merit. Now that we have given leave to the Appellant in her petition for special leave to appeal, the same appellate jurisdiction which vested in the High Court will vest in us as well and in exercise of such appellate jurisdiction, we shall consider the Appellant's prayer for bail, which was not considered by the High Court on merit. 16. It was also urged by Mr. Nataraj that in the appeal-petition, the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind disclosure of any such material. This question shall be examined by us in the subsequent paragraphs of this judgment. 19. Another point urged by Mr. Nataraj was that the entirety of incriminating material in the chargesheets, which forms the basis for implicating the Appellant did not form part of petition for special leave to appeal and to that extent the investigating agency did not have full opportunity to meet the Appellant's case. But as would be evident from various paragraphs of this judgment, these materials were brought on record and both parties had the opportunity to consider these materials and advance submissions on that basis. This is not a case where equitable relief is snatched ex-parte, for instance in case of an ad-interim injunction, by not bringing to the notice of the Court the entire factual basis of a given case. In this appeal, both the parties have had sufficient opportunity to deal with the relevant materials and the Appellant cannot be non-suited on the sole ground of non-disclosure of such materials. 20. We shall now test the Appellant's claim for bail on merit. Having regard to the proviso to Section 43D(5) 143-D. Modified application of cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. of 1967 Act, the Court hearing the question of bail is under duty to scan through the case diary or report made Under Section 173 of the Code for the purpose of forming an opinion to the effect that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or disproved by other evidence, and on the face of it, shows the complicity of such Accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is prima facie true , as compared to the opinion of the Accused not guilty of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the Accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act. Nevertheless, we may take guidance from the exposition in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, [(2005) 5 SCC 294: 2005 SCC (Cri) 1057], wherein a three-Judge Bench of this Court was called upon to consider the scope of power of the Court to grant bail. In paras 36 to 38, the Court observed thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an Accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the Accused, his propensities and the nature and manner in which he is alleged to have committed the offence. 45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in Sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the Accused during the investigation may not justify a judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by the Respondent during the period he was on bail has vitiated the conclusions arrived at by the High Court while granting bail to the Respondent. The other ground apart from the ground of incarceration which appealed to the High Court to grant bail was the fact that a large number of witnesses are yet to be examined and there is no likelihood of the trial coming to an end in the near future. As stated hereinabove, this ground on the facts of this case is also not sufficient either individually or coupled with the period of incarceration to release the Respondent on bail because of the serious allegations of tampering with the witnesses made against the Respondent.' 48. In Jayendra Saraswathi Swamigal v. State of T.N. 2005:INSC:17 : (2005) 2 SCC 13: 2005 SCC (Cri) 481] this Court observed [(SCC pp. 21- 22, para 16)] 16. ... The considerations which normally weigh with the court in granting bail in non bailable offences have been explained by this Court in State v. Jagjit Singh [(1962) 3 SCR 622: AIR 1962 SC 253: (1962) 1 Cri LJ 215] and Gurcharan Singh v. State (UT of Delhi) [(1978) 1 SCC 118: 1978 SCC (Cri) 41] and basically they are - the nature and seriousness of the offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are, inter-alia, contained in paragraphs 17.4, 17.5, 17.8, 17.10.1, 17.11, 17.12, 17.15, 17.16 and 17.18 of the chargesheet dated 15.11.2018 and paragraphs 17.4, 17.5 and 17.16 of the first supplementary chargesheet dated 21.02.2019. The allegations against the Appellant are, inter-alia, contained in paragraphs 17.24, 17.25, 17.29, 17.32, 17.39, 17.45, 17.55, 17.56, 17.73, 17.74, 17.75 and 17.78 of the second supplementary chargesheet dated 09.10.2020. 24. It is admitted position that Appellant was present at Shanivarwada within the district of Pune on 31.12.2017 when the Elgar Parishad event took place. But there is no allegation at this stage that apart from being present, she had any further active participation on that date in the programme. For instance, there is no allegation that she had delivered any provocative speech. She was also not named in the initial FIR which was registered at Vishrambaug Police Station, Pune on 08.01.2018. The prosecution's case is that the Appellant is an active member of CPI (Maoist) and conspired with other Accused persons to violently overthrow democracy and the State. There are also allegations that she provided party funds and also recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained in the two earlier chargesheets. In this chargesheet, only her interaction and connection with other Accused persons has been revealed and forms part of the same chain of accusations. 26. In its counter-affidavit, the NIA, being the contesting Respondent before us, has primarily taken the stand confined to its preliminary objections on maintainability of this appeal, which we have already noted. But in course of hearing before us, we were addressed on merit of the appeal on the question of entitlement of the Appellant to be released on bail, having regard to the proviso of Section 43D(5) of 1967 Act. The materials which form part of the three chargesheets, were brought on record before us by the Appellant through two additional affidavits. Apart from these of these of the Appellant, detailed written submission has been filed by Mr. Nataraj, which contains a series of documents found to be incriminating by the prosecution along with witness statements implicating the Appellant. 27. So far as the Appellant is concerned, the prosecution has emphasised on the following list of materials forming part of this appeal: (i) A Letter dated 08.06.2017 from one Comrade M addressed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed persons. The FSL report reveals that deleted audio and video files were retrieved from hard disk and also mentions that uninstalled softwares have been recovered, but no substantive content of the deleted materials has been placed in the chargesheets. The material placed before us only indicates that the process of deletion had taken place. It appears that all the letters and other materials mentioned in the above list have been purported to have been recovered from the electronic devices of co-Accused Rona Wilson. 28. The next set of evidences to which our attention has been drawn by Mr. Nataraj are four witness statements, two of whom were originally given the status of protected witnesses. We have referred to their present status earlier in this judgment. The accusations made by the four witnesses in their respective statements placed before us are as follows: (i) The first protected witness (KW1) statement carries reference to Shoma Sen as having addressed the delegates of the conference of RDF held in April 2012. The relevant part of the said recorded statement reads: .........Shoma Sen said that we have to understand the essence of the Maoist slogan 'women hold up half ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the Appellant was an urban Naxalite working with CPI (Maoist). The name of the Appellant, however, does not figure in his first statement recorded by the State Police on 02.11.2018. 29. In the light of these materials we shall have to examine the strength of prosecution's case to implicate the Appellant in the offences specified Under Sections 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act. There is also allegation against her for commission of offence Under Section 13 of the same statute, but that offence does not come under the purview of the bail restricting provision of Section 43D(5) of the 1967 Act and we shall deal with that accusation in the succeeding paragraphs of this judgment. The offences under Chapter IV of the 1967 Act with which the Appellant has been charged with by the prosecuting agency, mainly stem from commission of a terrorist act or any act in connection therewith. Section 15 of the 1967 Act stipulates: 15. Terrorist act.- (1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant constituting an offence within the scope of the Second Schedule to the same statute. Sub-section (1) of Section 15 refers to certain acts which would constitute a terrorist act but the first part of Sub-section (1) of Section 15 cannot be read in isolation. In our reading of the said provision of the statute, to qualify for being a terrorist act, such act must be done with intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India or such act must be accompanied with an intent to strike terror or likely to strike terror in the people or any Section of the people in India or in any foreign country. These are initial requirements to invoke Section 15(1) of the 1967 Act. The legislature, however, has not left the nature of such acts unspecified and in Sub-clauses (a), (b), and (c) of the said Sub-section, the law stipulates the manner of commission of the acts specified in first part of Sub-section (1) of said Section 15. If any offender attempts to commit any of the acts specified in Section 15(1), to come within the ambit of the expression terrorist act under the 1967 legislation, action or intention to cause such act mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 15 shall also be construed as an offence. Act, most of the materials have emanated from recovery of documents from devices of third parties and at this stage, on the strength of the materials produced before us, the prosecution has not been able to corroborate or even raise a hint of corroboration of the allegation that the Appellant has funded any terrorist act or has received any money for that purpose. What we can infer on the basis of the materials produced before us, are mere third-party allegations that money has been directed to be sent to her. None of the materials reveal receipt of any funds by her or her direct role in raising or collecting funds. We are conscious of the fact that in course of trial, the prosecution will have the opportunity to bring more detailed evidence in that regard, but here we are only examining whether the offences under Part IV VI of the 1967 Act, alleged to have been committed by the Appellant, are prima facie true or not. 32. As regards the allegation against the Appellant for committing an offence Under Section 18 18. Punishment for conspiracy, etc.-Whoever conspires or attempts to commit, or advocates, abets, advises or incites, direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may extend to imprisonment for life, and shall also be liable to fine. of the 1967 Act is prima facie true. 34. So far as the allegation of prosecution of the Appellant being member of frontal organisation of CPI (Maoist), reference has been made to RDF, IAPL, CPDR, AGMC and KKM. But apart from mere allegations that these are frontal organizations of CPI (Maoist), no credible evidence has been produced before us through which these organisations can be connected to the aforesaid banned terrorist organization. Thus, the offence Under Section 20 of the 1967 Act relating to membership of a terrorist organisation which is involved in a terrorist act, cannot be made out against the Appellant at this stage, on the basis of materials produced before us. Relying on the judgment of this Court in the case of Vernon (supra), we have already dealt with the position of the Appellant vis-a-vis terrorist acts in the earlier paragraphs of this judgment and we prima facie do not think that Section 20 20. Punishment for being member of terrorist gang or organisation.-Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist act, shall be punishable wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e way as has been done in Section 15. terrorist organisation has been independently defined in Section 2(m) to mean an organisation listed in the First Schedule or an organisation operating under the same name as an organisation so listed. But so far as the word terrorist is concerned, in this Section also, the interpretation thereof would be relatable to the same expression as used in Section 15. It is one of the basic Rules of statutory construction that an expression used in different parts of a statute shall ordinarily convey the same meaning - unless contrary intention appears from different parts of the same enactment itself. We do not find any such contrary intention in the 1967 Act. 33. Section 38 of the 1967 Act carries the heading or title offence relating to membership of a terrorist organisation . As we have already observed, a terrorist act would have to be construed having regard to the meaning assigned to it in Section 15 thereof. We have given our interpretation to this provision earlier. terrorist organisation [as employed in Section 2(m)], in our opinion is not a mere nomenclature and this expression would mean an organisation that carries on or indulges in terror ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or professes to be associated with the terrorist organisation; or (c) who, with intention to further the activity of a terrorist organisation, addresses a meeting for the purpose of encouraging support for the terrorist organisation or to further its activity. (2) A person, who commits the offence relating to support given to a terrorist organisation Under Sub-section (1) shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both. and 40. Offence of raising fund for a terrorist organisation.- (1) A person commits the offence of raising fund for a terrorist organisation, who, with intention to further the activity of a terrorist organisation,- (a) invites another person to provide money or other property, and intends that it should be used, or has reason - able cause to suspect that it might be used, for the purposes of terrorism; or (b) receives money or other property, and intends that it should be used, or has reasonable cause to suspect that it might be used, for the purposes of terrorism; or (c) provides money or other property, and knows, or has reasonable cause to suspect, that it would or might be used for the purposes of terrorism. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the anticipation of the impending sentence that the Respondent Accused might face upon conviction and since the Respondent-Accused had already served portion of the maximum imprisonment i.e., more than five years, this Court took it as a factor influencing its assessment to grant bail. Further, in K.A. Najeeb's case the trial of the Respondent- Accused was severed from the other co-Accused owing to his absconding and he was traced back in 2015 and was being separately tried thereafter and the NIA had filed a long list of witnesses that were left to be examined with reference to the said Accused therefore this Court was of the view of unlikelihood of completion of trial in near future. However, in the present case the trial is already under way and 22 witnesses including the protected witnesses have been examined. As already discussed, the material available on record indicates the involvement of the Appellant in furtherance of terrorist activities backed by members of banned terrorist organization involving exchange of large quantum of money through different channels which needs to be deciphered and therefore in such a scenario if the Appellant is released on bail there is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il-restricting offences. He cited the case of Gurwinder Singh (supra) in which the judgment of K.A. Najeeb (supra) was distinguished on facts and a judgment of the High Court rejecting the prayer for bail of the Appellant was upheld. But this was a judgment in the given facts of that case and did not dislocate the axis of reasoning on constitutional ground enunciated in the case of Najeeb (supra). On behalf of the prosecution, another order of a Coordinate Bench passed on 18.01.2024, in the case of Mazhar Khan v. N.I.A. New Delhi [Special Leave Petition (Crl.) No. 14091 of 2023] was cited. In this order, the Petitioner's prayer for overturning a bail-rejection order of the High Court under similar provisions of the 1967 Act was rejected by the Coordinate Bench applying the ratio of the case of Watali (supra) judgment and also considering the case of Vernon (supra). We have proceeded in this judgment accepting the restrictive provisions to be valid and applicable and then dealt with the individual allegations in terms of the proviso to Section 43D(5) of the 1967 Act. Thus, the prosecution's case, so far as the Appellant is concerned, does not gain any premium from the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mains enlarged on bail. (c) The Appellant shall inform the Investigating Officer of the NIA the address where she shall reside during the period she remains enlarged on bail. (d) The Appellant shall use only one mobile number, during the time she remains on bail, and shall inform her mobile number to the Investigating Officer of the NIA. (e) The Appellant shall also ensure that her mobile phone remains active and charged round the clock so that she remains constantly accessible throughout the period she remains enlarged on bail. (f) During this period, i.e. the period during which she remains on bail, the Appellant shall keep the location status (GPS) of her mobile phone active, twenty-four hours a day, and her phone shall be paired with that of the Investigating Officer of the NIA to enable him, at any given time, to identify the Appellants' exact location. (g) The Appellant, while on bail, shall report to the Station House Officer of the Police Station within whose jurisdiction she shall reside, once every fortnight. 43. In the event there is breach of any of these conditions or any other condition that may be imposed by the Special Court independently, it would be open to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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