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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 ..... ort ("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. The said FIR was initially lodged against the organisers of the Elgar Parishad event, which included activists of a cultural body, known as Kabir Kala Manch. The Appellant before us was not named in that FIR as an Accused at that point of time. 3. Subsequently, the scope of investigation was expanded and Section 120-B of the 1860 Code was added to the list of offences on 06.03.2018. The State Police, who were investigating the case at that point of time raided houses of eight Accused persons on 17.04.2018, namely ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smitted 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 Wilson, Surendra Pundlikrao Gadling, Shoma Sen (the Appellant) and Mahesh Sitaram Raut appear as arrested Accused whereas names of five other Accused persons have been shown as "at present underground". A supplementary chargesheet was also filed by the State Police on 21.02.2019, broadly under the same provisions, implicating certain other individuals, Varavara Rao, Vernon Gonzalves, Arun Ferreira and Sudha Bhardwaj as Accused persons in the same case. 6. After filing of the initial chargesheet, the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the Division Bench of the High Court refused to consider the Appellant's petition for bail on merit. The reasoning for such a course being directed by the Division Bench would appear from the following passage of the impugned order: 2. As noted in Order dated 2nd December, 2022, the investigation of present Crime was subsequently transferred to the National Investigation Agency (for short "the NIA") in the month of January, 2020 i.e. after passing of the impugned Order. After comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 context of this argument that the aforesaid judgment was delivered and observations were made in the passage quoted above. The same course, in our opinion, would not be mandatory on the question of considering pre-trial bail plea. 12. So far as the initial and the first supplementary chargesheets filed by the State Police are concerned, the Court of first instance had the occasion to go through the same. But the High Court opined that after transfer of investigation to NIA and fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 regular jurisdiction to consider her application. It was because of supervening circumstances the NIA entered into the picture and then issued the second supplementary chargesheet. The Division Bench, being an appellate forum, has the jurisdiction to look into the facts which may arise subsequent to the order of bail passed by the Court of regular jurisdiction. The order by which the Single Judge, hearing the bail application Under Section 439 of the 1973 Code, placed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Appellant has only asked for setting aside the impugned judgment and order. No specific prayer for bail has been made. But in our opinion, the plea for bail in the context of the present appeal is implicit. The petition which was transferred to the Division Bench carried prayer of the Appellant for being released on bail and argument advanced by Mr. Grover, learned Senior Counsel appearing for the Appellant is that the High Court itself ought to have granted bail to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 there are reasonable grounds for believing that the accusation against the Appellant is prima facie true. This test would apply in only relation to offences stipulated under Chapters IV and VI of the 1967 Act. So far as the prosecution's accusation against the Appellant is concerned, allegations of commission of offences Under Sections 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act come within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ma 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: (SCC pp. 316-17) 36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the court to record such a finding? Would there be any machinery available to the court to ascertain that once the Accused is enlarged on bail, he would not commit any offence whatsoeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence. 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 of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby. 47. In Kalyan Chandra Sarkar v. Rajesh Ranjan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 offence; the character of the evidence; circumstances which are peculiar to the Accused; a reasonable possibility of the presence of the Accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 received party funds from another Accused Mahesh Raut, she was paid a sum of Rs. five lakhs by two other co-Accused persons and made constant attempts to further terrorist activities of the banned CPI (Maoist). It is also the prosecution's case that she has been encouraging youngsters and recruited them as members in the banned organization and participated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 "Comrade Surendra", which carries reference to the Appellant to the limited extent that the party leadership has sent instructions to "Comrade Shomasen" for strengthening CPDR and Radical Student's Union in Nagpur, Chandrapur and Gondia region. This letter also records that necessary funds have been sent, but no specific person is named as the recip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 the sky'. To solve the problems women in our country, as well as in other countries, the struggle for New Democratic Revolution is the only way forward. Simply she was advocating women to join CPI Maoist to solve their issues.......... (ii) The statement of KW-2 recorded by the NIA Under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 any Section of the people in India or in any foreign country,- (a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 must be by those means, which have been specified in Sub-clauses (a), (b), and (c) of the said provision. This is the line of reasoning broadly followed by this Court in the case of Vernon (supra) in construing the applicability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als 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, directs or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine. of the 1967 Act can be made applicable against the Appellant at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 terrorist acts, as defined in said Section 15. The term terrorism, in view of the provisions of Section 2(k) of the said Act, ought to be interpr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Explanation.-For the purposes of this Sub-section, a reference to provide money or other property include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 every likelihood that he will influence the key witnesses of the case which might hamper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment 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 reasoning forming the basis of the case of Mazhar Khan (supra). 40. Two authorities have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 the prosecution to seek cancellation of bail gran ..... X X X X Extracts X X X X X X X X Extracts X X X X
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