REPORTED/PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9832
THE HON'BLE SRI JUSTICE K.C.BHANU AND THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
Crl.A.No.1197 of 2012
18.04.2013
National Investigation Agency, NIA, Hyderabad.
Devendra Gupta and another
<GIST:
>HEAD NOTE:
!Spl. Public Prosecutor for NIA::Sri P.Vishnuvardhan Reddy,
Senior Counsel for the respondents 1 & 2 : Sri N.Ramachander Rao, representing
Sri M.Vijaya Kanth and Sri Venugopal Julakanti.
? Cases referred:
1 (2009) 3 SCC (Cri) 1480=2009 11 SCC 541
2 (2004) SCC (Cri) 829= (2004) 3 SCC 444
3 (2004) 9 SCC 580
4 (2004) 7 SCC 528
5 (2002) 3 SCC 598
6 (2008) 16 SCC 753
7 (2008) 13 SCC 584
8 (2001) 6 SCC 338
9 (1996) 2 SCC 616
10 (2005) 3 SCC 143
11 (2012) 9 SCC 446
12 Crl.A.No.29 of 2011, dt.July 27, 2011 (unreported)
13 1990 1 SCC 397
14 (1988) 2 SCC 271
15 Unreported Judgment in Crl.A.No.824 of 2012, dt.21.12.2012.
16 AIR 1974 SC 87
17 AIR 1990 SC 1984
18 AIR 2012 SC 830
JUDGMENT:
(Per Hon'ble Sri Justice M.S. Ramachandra Rao)
This is an appeal filed u/S.21 of the National Investigation Agency Act,
2008 by the National Investigation Agency (for short, 'NIA'), Hyderabad,
challenging the order dt.26.11.2012 of the IV Addl. Metropolitan Sessions
Judge, Hyderabad (for short "the Sessions Court") in Crl.M.P.No.569 of 2012,
vide Spl. Sc. No.1 of 2011 of CBI Police Station in NIA Cr.No.2 of 2011.
2. The respondents herein are A.1 and A.2 in Spl. Sc.No.1 of 2011 in NIA
Cr.No.2/2011 wherein they are alleged to have committed offences
u/S.302, 307,326, 120(B) IPC;
Sections 3, 4, 5 of Explosive Substances Act,1908; and
Sections 13, 15, 16, 18, 19 and 23 of Un-lawful Activities (Prevention) Act,1967.
3. The above Crl.M.P.No.569 of 2012 was filed by the respondents seeking
regular bail u/S.439 of Cr.P.C., contending that they are in judicial custody
since 17.06.2010, i.e., for more than two years and 5 months prior to the filing
of the petition;
that on 18.05.2007 at about 01:25p.m., there was a bomb-blast
in Mecca Masjid, Hyderabad, in which nine persons died and fifty-eight persons
suffered injuries;
the same day, the SHO, P.S. Hussaini-Alam, Hyderabad,
(A.P.), registered a case vide Cr.NO.100/2007 u/S.302, 207, 120(B) IPC, Sec.3
and 5 of Explosive Substance Act,1908;
subsequently the case was transferred to
CBI; the CBI re-registered the case vide R.C.No.5(S)/2007/SCR-III/CBI/ND on
6.10.2007 under the same sections of law and took up investigation; they are
innocent and have nothing to do with the offences alleged and have been falsely
implicated in the above case; that there is a connected case
R.C.No.6(S)/2007/SCR-III/CBI/ND with regard to material seized in the premises
of Mecca Masjid which was subsequently defused and was registered suo moto in
Cr.No.107/2007; both the RCs were clubbed and a common investigation was done by
the CBI; a charge-sheet dt.13.12.2010 was filed by the CBI arraying them as
Accused Nos.1 and 2; they were earlier arrested in Ajmer blast case and the CBI
filed PT warrants against them connecting them with the offence; took them into
police custody twice and during the course of investigation while they were in
judicial custody over 205 witnesses were examined and the said charge-sheet was
filed; the CBI has filed false case against them and the entire investigation is
unscientific, motivated and also filed for the purpose of defaming a particular
organization; some other persons were arrested by the A.P. State Police and they
had confessed that they were responsible for the blasts in the Mecca Masjid
after they were subjected to Narco Analysis Test; the only allegation against
them is that some common SIM cards found in the area were purchased by them in
the year 2003 or so and subsequently in the year 2010, i.e., after seven years,
a test identification parade to identify the purchasers of the SIM cards and
mobile phones was made, that too after their photographs appeared in newspapers
and magazines; all the witnesses examined during the investigation spoke about
unconnected matters; the investigation by the CBI is malafide; the entire
episode of Swami Asseemanand, shown as A.6, his confession statement before the
Magistrate, his change of heart by another accused in the related case and
consequent implication of innocent people in his confession proves the malafides
of the prosecution in the entire investigation; as the CBI had completed the
investigation as far as they are concerned and as they are innocent and no way
connected or concerned with the blast at Mecca Masjid or in any other place they
should be released on bail; they came from respectable families and are
permanent residents of Ajmer and Indore and were ready to furnish sureties and
abide by any terms and conditions which may be imposed in the event of grant of
bail.
4. The appellant/NIA filed objection petition to the above bail application
contending that both the respondents were arrayed after investigation by the
CBI; A.3- Sandeep V Dange and A.4-Ram Chandra Kalsangra were absconding; A.5-
Sunil Joshi expired (murdered at Dewas, M.P.); after the CBI filed charge-sheet
on 13.12.2010, considering the gravity of the offence, the fact that the
offences fall under Schedule to the National Investigation Act, 2008 and since
it involves the security of the State, the case was transferred to the NIA by
the Ministry of Home Affairs, Government of India, IS-1 Division by the Order
No.1-11034/18/2011-IS-IV dt.04.04.2011; the NIA re-registered the case as
Cr.No.2/2011 u/S.302, 307, 326, 511 r/w 120(B) IPC, Sections 3, 4, 5 and 6 of
Explosive Substance Act, 1908 and Sections 13, 15 r/w. 16, 18, 19 and 23 of Un-
lawful Activities (Prevention) Act, 1967; the NIA also took up investigation and
all relevant documents were collected; during the course of investigation by the
CBI, the statement of the accused A.6-Swami Asemanand was recorded u/S.164
Cr.P.C. by the Hon'ble Court of Sh. Deepak Dabas, Munsif Magistrate Central-04,
Delhi on 18.12.2010, wherein he had confessed the offence and revealed a larger
conspiracy behind the series of blasts targeting the Muslim populated areas and
involvement and logistic support of the accused. It also contended that :
(a) an un-exploded improvised explosive device (IED) was found immediately
after the bomb blast inside the Mecca Masjid ; upon analysis of this IED by the
APFSL, it was found to have been made of high explosive substances such as RDX
and TNT and that only due to slight damage in the electric circuit it had not
exploded ; if not, more casualties would have occurred; a SIM and a Nokia Hand
set model 6030 with IMEI 353938012488999 was found in this IED and it was
revealed in the investigation that this mobile handset was purchased by the 2nd
respondent ; the same is corroborated by the statement of LW.73-Sachin Bansal
and LW.74 Ishanth Chawla; LW.74 had identified A.2-Lokesh Sharma in Test
Identification Parade as the person who had purchased the said handset;
(b) further the SIM card of the mobile phone number 9732110289 which was
purchased in the fake name of one Babulal Yadav was found in the Nokia 6030
model handset having the above IMEI number and the same was purchased by A.2
which was found along with the un-exploded IDE; this shows the involvement of
A.2 for the purpose of conducting explosions;
(c) LW.118-Vinay Pandey spoke about the close association of the 2nd
respondent and others like Sunil Joshi (A-5) and 1st respondent and about
keeping a gunny bag containing suspicious material in his house by A.5; he also
spoke about the training of Dasarath @ Rajender Pahalwan @ Samundar and Dhan
Singh at Jammu Kashmir who were taken there by Sunil Joshi;
(d) another witness LW.141-Shivam Dhakad stated about the participation of the
2nd respondent in the meeting held at Gujrati Dharmashala, Jaipur in 2005 with
one Indresh along with Samundar @ Rajender Pahalvan, Sunil Joshi, Pragya Singh,
Ramji and others ; later A.5-Sunil Joshi delegated certain tasks to the 2nd
respondent, Ramji and Lokesh Sharma to procure arms/explosives and this proves
their involvement in the conspiracy;
(e) the complicity of the 2nd respondent is also corroborated by the
confession statement of A.6-Swamy Aseemanand, wherein he stated that the 2nd
respondent participated in conspiracy meetings held under his leadership at the
house of A.7-Bharath Bhai and these circumstances prove the involvement of the
2nd respondent in the case; (f) LW.123-Vikas Kumar Pandey spoke about the
efforts of the 2nd respondent to procure EPIC (Election Picture Identity Cards)
with the intention to use them to purchase SIM cards and had identified the 1st
respondent in the Test Identification Parade;
(f) LW.129-Rohith Kumar Jha, in his statement which was recorded u/S.164
Cr.P.C. stated about the association of the 1st respondent with the other
accused A.5-Sunil Joshi, Ramchandra Kalsangra@Ramji for procurement of voter ID
cards and SIMs and he also revealed that the 1st respondent requested him to
arrange voter ID cards or driving licence and when the former asked the purpose
for which they were required the latter responded that they were required for
secret works; in the month of July/August, 2008, he saw the driving licence and
voter identity card in the name of Babulal Yadav, apart from 10 to 15 denonators
and some rounds in the room of 1st respondent - Devender Gupta and when LW.129-
Rohith Kumar Jha enquired with 1st respondent-Devender Gupta why he would wrap
them all in carbon papers, the latter replied that the machines cannot detect
detonators wrapped in carbon papers;
(g) the involvement of the 1st respondent in the offence and his association
with other accused were revealed through the 164 Cr.P.C. statement of LW.130-
Ranjan Kumar Sinha;
(h) all the above material would show that all the accused participated in the
commission of bomb explosion in many of the Muslim populated areas, especially
in Mecca Masjid; and the acts of the accused resulted in the death of nine
persons and injuries to fifty-eight persons by the use of high explosives which
is a terrorist act within the meaning of Section 15 of Un-lawful Activities
(Prevention) Act, 1967 as amended in 2008;
(i) as per Section 43(D) of the said Act, no person accused of an offence
under the said act is entitled to be released on bail, if the accusation against
him is prima facie true;
(j) A.3 and A.4 are still at large and despite strenuous efforts by several
law investigating agencies they could not be arrested; and
(k) if the respondents are granted bail there is every chance that they will
also abscond from the process of law and alert the absconders; since the offence
involved in the case is based on conspiracy, the chance of getting witnesses
outside the acquaintances and former friends of these accused is rare; most of
the witnesses to the conspiracy are former co-travellers of the accused; release
of the accused on bail will therefore result in influencing the witnesses who
are more acquainted with them; and therefore, they prayed that the bail
application filed by respondent Nos.1 and 2 be dismissed.
5. On 16.05.2011, the NIA filed a charge-sheet before the Hon'ble IV Addl.
Metropolitan Sessions Judge-cum-Special Court for N.I.A. Cases, Hyderabad,
Andhra Pradesh, against the respondents herein u/S.302, 307, 326 and 324 r/w.
120 b(B) IPC; Sections 13, 15 r/w.16, 17, 18, 19 and 23 of Unlawful Activities
(Prevention) Act, 1967 (as amended in 2004) and Sections 3, 4 and 5 of Explosive
Substances Act, 1908.
6. By the impugned order dt.26.11.2012, the IV Addl. Metropolitan Sessions
Judge, Hyderabad allowed the Crl.M.P.No.569 of 2012 and found that there were
reasonable grounds for believing that the accusations against the respondents
are prima facie true. Yet he granted bail to the respondent Nos.1 and 2 on
condition that they execute a personal bond of Rs.50,000/- with two sureties
each for a like sum and on their surrendering their passports. He further
directed that they should undertake to co-operate with investigation agency and
not to meddle with any listed witnesses or who would have something to
contribute in the case, apart from attending the court at all relevant times for
the purpose of the case.
7. Aggrieved thereby, the present appeal has been filed u/S.21 of the
National Investigation Agency Act, 2008 by the NIA, Hyderabad.
8. On 03.12.12, this Court admitted the appeal and in Crl.A.M.P.No.2535/2012
granted interim suspension of the order dt.26.11.2012 in Crl.M.P.No.569 of 2012
of the IV Addl. Metropolitan Sessions Judge, Hyderabad. In view of this, the
accused were not released and they continue to be in judicial custody.
9. Heard, Sri P. Vishnuvardhan Reddy - Spl. Public Prosecutor for NIA; Sri N.
Ramachander Rao - Senior Advocate, representing Sri M. Vijaya Kanth and Sri
Venugopal Julakanti - counsel for the respondent Nos.1 and 2.
10. The Spl. Public Prosecutor for the NIA contended that the order of the
Sessions Court granting bail to the respondent Nos.1 and 2 is contrary to law,
perverse and unsustainable; the learned Sessions Judge having found that there
were reasonable grounds for believing that the accusations against the
respondents are prima facie true could not have granted bail to the respondents
in view of the express provision contained in the proviso to sub-section 5 of
Section 43(D); the proviso to sub-Section 5 of Section 43(D) bars the release of
such accused person on bail or on his own bond if the Court, if on a perusal of
the case diary or the report made under section 173 of the Code, it is of the
opinion that there are reasonable grounds for believing that the accusation
against the person is prima facie true; this provision of law has been ignored
by the Sessions Judge while granting bail to the respondents; the view of the
Sessions Judge that while a foreign citizen who is an accused can be released
under exceptional circumstances, it would work out hardship if citizens of India
are denied bail forever is perverse; the view of the Sessions Judge that
respondent Nos.1 and 2 have been in judicial custody for more than 2 years 5
months and there is no possibility of early commencement of trial and so it is
not just and fair to deny them bail, is also perverse; these accused were also
involved in other cases of a similar nature : the 1st respondent is also
involved in the Ajmer Durgah blast case of 2007 (R.C.No.04 of 2011) wherein two
persons died and seventeen persons were injured; the 2nd respondent is also
involved in Malegoan-I case of 2006 (R.C.No.03 of 2011) wherein forty persons
died and sixty-five persons suffered injuries, Samjhouta Train blast of 2007
(R.C.No.09 of 2010) wherein sixty-eight persons died and twelve persons injured,
Ajmer Dargah blast of 2007 (R.C.No.04 of 2011) wherein two persons died and
seventeen injured, apart from the murder case of A.5-Sunil Josh (R.C.No.08 of
2011). The 1st respondent is now at Jaipur jail while the 2nd respondent is at
Ambala Jail; A.3 and A.4 are absconding; A.5 died; A.6 is in judicial custody
at Ambala; A.7 was granted bail on a technical ground as the charge-sheet was
not filed within the stipulated period after remand; and therefore the orders
of the Sessions Judge granting bail are liable to be set aside. The learned
Spl. Public Prosecutor also took us through the statements made by LWs.73, 74
and 130 recorded by the CBI to show that primafacie the respondent Nos.1 and 2
are involved in the commission of the offence. He also contended that the
principles governing the grant of bail as laid down by the Supreme Court of
India and other Courts have not been followed by the Sessions Judge while
passing the impugned order. He relied on the decisions in State of Maharashtra
and others v. Dhanendra Shriram Bhurle and others1; Moulvi Hussain Ibrahim
Umarji v. State of Gujarat2; People's Union for Civil Liberties and another v.
Union of India3; Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and
another4; Ram Govind Upadhyay v. Sudarshan Singh and others5; Lokesh Singh v.
State of Uttar Pradesh and others6; Narendra K. (Admn.) Dr. v. State of Gujarat
and another7; Puran v. Rambilas8; Shaheen Welfare Association v. Union of India
and others9; Panchanan Mishra v. Digambar Mishra and others10; Ash Mohammad v.
Shiv Raj Singh @ lalla babu and another11; Jibangshu Paul v. NIA12; and State of
Maharashtra v. Anand Chintaman Dighe13.
11. The counsel for the respondent Nos.1 and 2 however contended that the
order of the Sessions Judge granting bail to the respondent Nos.1 and 2 is
correct and unassailable; cogent reasons have been given by the Sessions Court
while granting bail to respondent Nos.1 and 2; the respondent Nos.1 and 2 have
been in jail in judicial custody for more than 2 years and 5 months; there is no
possibility of the trial commencing in the near future on account of the fact
that two of the accused are said to be absconding; as the statements of some of
the witnesses were recorded u/S.164 Cr.P.C. there cannot be any danger of
tampering of their evidence by the respondent Nos.1 and 2; the respondent Nos.1
and 2 hail from respectable families and there cannot be any apprehension that
they would abscond; admittedly, there is no confession made by respondent Nos.1
and 2 and there has been no recovery of explosive substances from their
possession; there is no evidence of their physical presence at the scene of the
offence and their fingerprints were also not collected from the scene of the
offence; the test identification parade was held three years after the alleged
incident and it is not possible for any witness to identify a person whom he had
seen once three years before; when the respondent Nos.1 and 2 were arrested
their photos were published in all the newspapers after the Ajmer blast and
therefore, the test identification parade itself has no evidentiary value; the
whole basis of the case of the prosecution is the alleged confession of A.6; the
CBI had selectively leaked this confession to the press and a contempt petition
is filed in the Delhi High Court and it is pending there; and the only
allegation against the respondents is that they had given shelter and beyond
that what role they played in the blasts at Mecca Masjid is not stated by the
prosecution. It is not the allegation of the prosecution that respondent Nos.1
and 2 have triggered them; one Tejo Ram who had been recently arrested and shown
as A.9 is alleged by the prosecution to be the person who planted the Sim bombs
at the Mecca Masjid; LW.73 and 74 spoke of purchase of a cell phone Nokia 6030
by the 2nd respondent; admittedly, the said sale is not evidenced by any
invoice/ bill; there is nothing to link the accused with the said purchase of
cell phone ; it is not as if the RSS, an organization in which the accused are
members is a banned organization or a terrorist organization notified in the
Schedule to the Unlawful Activities (Prevention) Act, 1967; merely, because the
accused are members of the said organization, they cannot be prosecuted; and
therefore, prayed that the order of the Sessions Court be confirmed.
12. The learned senior counsel also took us through the confession statement
of A.6-Swami Aseemanand, recorded u/S.164 Cr.P.C. by the Court of SH. Deepak
Dabas, Munsif Magistrate Central - 04, Delhi in detail.
13. We have noted the submissions of the respective parties.
14. Before we deal with the respective contentions, we wish to state that an
order granting or refusing bail to an accused in a criminal case is essentially
an interlocutory order [see Usmanbhai Dawoodbhai Memon and others v. State of
Gujarat14 and Puran (8 supra)].
Under S.21 of the National Investigation Agency
Act, 2008, appeals are provided against the judgment/sentence or order of a
special court, not being an interlocutory order, to the High Court both on facts
and on law.
But sub-section (4) of Section 21 specifically provides that an
appeal shall lie to the High Court against an order of the Special Court
granting or refusing bail notwithstanding anything contained in sub-section (3)
of Section 378 of Cr.P.C.
In view of this, the order of the Sessions Judge
granting bail to respondent Nos.1 and 2 is appealable to the High Court.
A
similar view has also been taken by this Court in an un-reported judgment NIA v.
Mohmed Anwar Shak and another15. In the said judgment it was also held that an
appeal against an order granting or refusing bail passed by a special court
would lie to a Division Bench of the High Court. Therefore, we hold that the
present appeal challenging the order of the Sessions Judge granting bail to
respondent Nos.1 and 2 is maintainable and that the said appeal would lie to a
Division Bench of the High Court.
15. Now we shall consider whether the order of the Sessions Court impugned
herein is valid in law.
16. It is settled law that while dealing with an application for bail, there
is a need to indicate in the order, the reasons for prima facie concluding why
bail was being granted particularly where an accused was charged of having
committed a serious offence. Some of the circumstances which should be
considered for granting bail to an accused are :
(a) the nature of accusation and the severity of punishment in case of
conviction and the nature of supportive evidence;
(b) reasonable apprehension of tampering of witnesses or apprehension of
threat to the complainant;
(c) prima facie satisfaction of the court in support of the charge;
(d) though a conclusive finding in regard to points urged by the parties is
not expected of the court considering the bail application, some reasons for
prima facie concluding why bail was being granted are required to be indicated.
17. In Puran (8 supra), the Court pointed out:
"Mr Lalit next submitted that once bail has been granted it should not be
cancelled unless there is evidence that the conditions of bail are being
infringed. In support of this submission he relies upon the authority in the
case of Dolat Ram v. State of Haryana. In this case it has been held that
rejection of bail in a non-bailable case at the initial stage and the
cancellation of bail already granted have to be considered and dealt with on
different basis. It has been held that very cogent and overwhelming
circumstances are necessary for an order directing the cancellation of the bail
already granted. It has been held that generally speaking the grounds for
cancellation of bail broadly are interference or attempt to interfere with the
due course of administration of justice or evasion or attempt to evade the due
course of justice or abuse of the concession granted to the accused in any
manner. It is, however, to be noted that this Court has clarified that these
instances are merely illustrative and not exhaustive. One such ground for
cancellation of bail would be where ignoring material and evidence on record a
perverse order granting bail is passed in a heinous crime of this nature and
that too without giving any reasons. Such an order would be against principles
of law. Interest of justice would also require that such a perverse order be set
aside and bail be cancelled. It must be remembered that such offences are on the
rise and have a very serious impact on the society. Therefore, an arbitrary and
wrong exercise of discretion by the trial court has to be corrected.
11. Further, it is to be kept in mind that the concept of setting aside the
unjustified illegal or perverse order is totally different from the concept of
cancelling the bail on the ground that the accused has misconducted himself or
because of some new facts requiring such cancellation."(emphasis ours)
18. In Ram Govind Upadhyay (5 supra), the Supreme Court decreed:
"3. Grant of bail though being a discretionary order - but, however, calls for
exercise of such a discretion in a judicious manner and not as a matter of
course. Order for bail bereft of any cogent reason cannot be sustained. Needless
to record, however, that the grant of bail is dependent upon the contextual
facts of the matter being dealt with by the court and facts, however, do always
vary from case to case. While placement of the accused in the society, though
may be considered but that by itself cannot be a guiding factor in the matter of
grant of bail and the same should and ought always to be coupled with other
circumstances warranting the grant of bail. The nature of the offence is one of
the basic considerations for the grant of bail - more heinous is the crime, the
greater is the chance of rejection of the bail, though, however, dependent on
the factual matrix of the matter.
4. Apart from the above, certain other which may be attributed to be
relevant considerations may also be noticed at this juncture, though however,
the same are only illustrative and not exhaustive, neither there can be any. The
considerations being:
(a) While granting bail the court has to keep in mind not only the nature of
the accusations, but the severity of the punishment, if the accusation entails a
conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the
apprehension of there being a threat for the complainant should also weigh with
the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the
guilt of the accused beyond reasonable doubt but there ought always to be a
prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the
element of genuineness that shall have to be considered in the matter of grant
of bail, and in the event of there being some doubt as to the genuineness of the
prosecution, in the normal course of events, the accused is entitled to an order
of bail.
5. A recent decision of this Court in Prahlad Singh Bhati v. NCT, Delhi lends
concurrence to the observations as above."
19. In Kalyan Chandra Sarkar (4 supra), the Supreme Court stated:
11. The law in regard to grant or refusal of bail is very well settled. The
court granting bail should exercise its discretion in a judicious manner and not
as a matter of course. Though at the stage of granting bail a detailed
examination of evidence and elaborate documentation of the merit of the case
need not be undertaken, there is a need to indicate in such orders reasons for
prima facie concluding why bail was being granted particularly where the accused
is charged of having committed a serious offence. Any order devoid of such
reasons would suffer from non-application of mind. It is also necessary for the
court granting bail to consider among other circumstances, the following factors
also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of
threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See
Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas)
12. In regard to cases where earlier bail applications have been rejected
there is a further onus on the court to consider the subsequent application for
grant of bail by noticing the grounds on which earlier bail applications have
been rejected and after such consideration if the court is of the opinion that
bail has to be granted then the said court will have to give specific reasons
why in spite of such earlier rejection the subsequent application for bail
should be granted. (See Ram Govind Upadhyay.)"
In the said case, the Court held that when an accused is charged of offences
punishable with life imprisonment or even death penalty, mere fact that he had
undergone certain period of incarceration (in that case 3 1/2 years) by itself
would not entitle him to be enlarged on bail, nor the fact that trial is not
likely to be concluded in the near future either by itself or coupled with the
period of incarceration would be sufficient for enlarging the accused on bail
when there are allegations of tampering with the witnesses by him during the
period he was on bail.
20. In Lokesh Singh (6 supra), the Supreme Court held that while dealing with
an application for bail, there is need to indicate in the order, reasons for
prima-facie concluding why bail was being granted particularly where an accused
was charged of having committed a serious offence. It further held that an order
granting bail de hors such reasons suffers from non-application of mind.
21. In Dhanendra Shriram Bhurle (1 supra), the above principles were
reiterated.
22. In Union of India v. Mohan Lal Capoor and others16, the Supreme Court held
that reasons are the links between the materials on which certain conclusions
are based and the actual conclusions. They should disclose how the mind is
applied to the subject matter or a decision, whether it is purely administrative
or quasi-judicial. They should reveal a rational nexus between the facts
considered and the conclusions reached. Only in this way can opinions or
decisions recorded be shown to be manifestly just and reasonable.
23. In S.N. Mukherjee and Union of India17, a Constitution Bench of the
Supreme Court held that a quasi-judicial authority must record reasons for its
decision as the recording of reasons would: (i) guarantee consideration by the
authority; (ii) introduce clarity in the decisions; and (iii) minimize chances
of arbitrariness in decision-making. It also held recording of reasons would
facilitate exercise of jurisdiction by appellate or supervisory authority and
would indicate that the authority had given due consideration to the points in
controversy.
24. A reading of the impugned order shows that no reasons have been given by
the Sessions Judge for granting bail to the respondent Nos.1 and 2. After
extracting the contentions and referring to the provisions of the Unlawful
Activities (Prevention) Act, 1967 and the judgment of the Supreme Court in
Sanjay Chandra v. CBI18, the learned Sessions Judge states "it is true there are
reasonable grounds for believing that the accusations are prima facie true."
There is no reference to the allegations made against the respondent Nos.1 and 2
in the charge-sheet filed by the NIA or the material collected by the CBI during
the investigation conducted by it. As regards the involvement of the respondent
Nos.1 and 2 in the said offence, at the stage of granting bail , no doubt a
detailed examination of evidence and elaborate documentation of the merits of
the case is not to be undertaken. But this does not mean that while granting
bail some reasons for prima facie concluding why bail was being granted are not
required to be indicated. Thus the order of the Sessions Court impugned herein
is clearly vitiated on the ground that it has not given any reasons as to why it
was granting bail to the accused.
25. As the respondent Nos.1 and 2 are alleged to have committed offences under
S.13 and 15 of the Unlawful Activities (Prevention) Act, 1967, the Court below
should also have kept in mind the proviso to sub-section (5) of Section 43(D) of
the said Act. S.43 D of the Unlawful Activities (Prevention) Act, 1967 states as
follows:
"43D. 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 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".
(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
punishable under this Act.
(6) Notwithstanding anything contained in the Code, no person accused of an
offence punishable under 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 the person is prima facie true.
(7) The restrictions on granting of bail specified in sub-section (6) is in
addition to the restrictions under the Code or any other law for the time being
in force on granting of bail.
(8) Notwithstanding anything contained in sub-sections (6) and (7), 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.
Thus, proviso to sub-section (5) of S.43-D (wrongly shown as sub-section (6) in
the text of the Act) prohibits the grant of bail to an accused if, on a perusal
of the case diary or the report made u/S.173 of Cr.P.C., the court is of the
opinion that there are reasonable grounds for believing that the accusation
against a person is prima facie true.
26. In Jibangshu Paul (12 supra), the High Court of Assam interpreted sub-
Section 5 of Section 43D as follows :
"87. A bare reading of Sub-Section (5) of Section 43D shows that apart from the
fact that Sub-Section (5) bars a Special Court from releasing an accused on bail
without affording the Public Prosecutor an opportunity of being heard on the
application seeking release of an accused on bail, the proviso to Sub-Section
(5) of Section 43D puts a complete embargo on the powers of the Special Court to
release an accused on bail by laying down that if the Court, on perusal of the
case diary or the report made under Section 173 of the Code of Criminal
Procedure, is of the opinion that there are reasonable grounds for believing
that the accusation, against such person, as regards commission of offence or
offences under Chapter IV and/or Chapter VI of the UA(P) Act is prima facie
true, such accused person shall not be released on bail or on his own bond.
88. Thus, if the Special Court, on perusal of the case diary, forms an opinion
that there are reasonable grounds for believing that the accusation, against an
accused person, of the commission of offences or offences under Chapter IV
and/or Chapter VI is prima facie true, it will not remain within the powers of
the Court to grant bail in such a case. This position is further made clear by
Sub-Section (6) of Section 43D, which lays down that the restrictions, on
granting of bail specified in sub-section (5), are in addition to the
restrictions under the Code of Criminal Procedure or any other law for the time
being in force on granting of bail. The logical conclusion would, therefore, be
that in a case, investigated by the agency, if the Special Court forms an
opinion that there are reasonable grounds for believing that the accused has
committed an offence punishable with death or imprisonment for life, the Special
Court would have no jurisdiction to grant bail to such an accused except as may
be provided by law.
... ...
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, against the accused, is true, a case of commission
of offence under Chapter IV or Chapter VI of the UA(P) Act, 1967, cane be said
to have been made out and when such a case is made out, it would be tantamount
to saying that reasonable grounds exist for opining that the accusations are
prima facie true. In such a case, the bar, imposed by the proviso to Section
43-D(5) on the court's power to grant bail, gets attracted.
... ... ...
122. It needs to be noted, at this stage, that the accused was released on
bail, on 26.02.2009, by the learned District Magistrate, NC Hills, acting as a
Judicial Magistrate under Section 437 Cr.P.C. barely within a period of two
weeks, but what were the considerations for bail. The learned Magistrate had
observed, for the purpose of granting bail, that the co-accused were on bail,
the accused was ready to co-operate with the police during investigation and
there is no chance of his absconding as he is a local person and that his
release on bail is not likely to adversely affect investigation. The
considerations, which prevailed upon the learned Magistrate, while granting
bail, were contrary to the Full Bench decision of this Court in Re -State of
Assam (suo moto), reported in 2007 (1) GLT 330 (FB), which we have referred to,
and which clearly lays down that if there is a 'reasonable ground' for holding
that the accused has committed an offence, which is punishable by death or
imprisonment for life, the Magistrate has no power to grant him bail unless the
case of the accused falls within one or more of the exceptions embodied in the
proviso to Section 437 Cr.P.C."(emphasis ours)
27. In the present case also, the Sessions Judge had held that there are
reasonable grounds for believing that the accusations against the accused are
prima facie true, yet he granted bail. Although this finding is not supported
by reasons (as held by us supra), we are of the opinion that if there are
reasonable grounds for believing that the accusations are prima facie true, in
view of proviso to sub-Section (5) of Section 43D, the accused are not entitled
to grant of bail. The Sessions Judge noticed the proviso to Sub-section (5) to
S.43-D but perversely held ,referring to sub-Section (7) of Section 43D that
if persons who are not citizens of India can get bail in exceptional
circumstances, citizens of India are certainly entitled to grant of bail and the
law does not contemplate prohibition to grant of bail forever to citizens of
India. In our opinion, it is not open to the Sessions Court to interpret the
provisions of Section 43D in this manner and this reasoning is clearly
erroneous.
28. In People's Union for Civil Liberties (3 supra), certain observations were
made by the Supreme Court of India while considering the provisions of the
Prevention of Terrorism Act, 2002. The Supreme Court stated :
"4........Terrorism has become the most worrying feature of contemporary life.
Though violent behaviour is not new, the present-day "terrorism" in its full
incarnation has obtained a different character and poses extraordinary
challenges to the civilised world. The basic edifices of a modern State, like
democracy, State security, rule of law, sovereignty and integrity, basic human
rights etc. are under the attack of terrorism....
.....
8. These terrorist strikes have certain common features. They could be very
broadly grouped into three:
1. Attack on the institution of democracy, which is the very basis of our
country (by attacking Parliament, Legislative Assembly etc.). And the attack on
economic system by targeting economic nerve centres.
2. Attack on symbols of national pride and on security/strategic
installations (e.g. Red Fort, military installations and camps, radio stations
etc.).
3. Attack on civilians to generate terror and fear psychosis among the
general populace. The attack at worshipping places to injure sentiments and to
whip communal passions. These are designed to position the people against the
Government by creating a feeling of insecurity.
9. Terrorist acts are meant to destabilise the nation by challenging its
sovereignty and integrity, to raze the constitutional principles that we hold
dear, to create a psyche of fear and anarchism among common people, to tear
apart the secular fabric, to overthrow democratically elected government, to
promote prejudice and bigotry, to demoralise the security forces, to thwart the
economic progress and development and so on. This cannot be equated with a usual
law and order problem within a State. On the other hand, it is inter-State,
international or cross-border in character. Fight against the overt and covert
acts of terrorism is not a regular criminal justice endeavour. Rather, it is
defence of our nation and its citizens. It is a challenge to the whole nation
and invisible force of Indianness that binds this great nation together.
Therefore, terrorism is a new challenge for law enforcement. By indulging in
terrorist activities organised groups or individuals, trained, inspired and
supported by fundamentalists and anti-Indian elements are trying to destabilise
the country. This new breed of menace was hitherto unheard of. Terrorism is
definitely a criminal act, but it is much more than mere criminality. Today the
Government is charged with the duty of protecting the unity, integrity,
secularism and sovereignty of India from terrorists, both from outside and
within the borders. To face terrorism we need new approaches, techniques,
weapons, expertise and of course new laws. In the above said circumstances
Parliament felt that a new anti-terrorism law is necessary for a better future.
This parliamentary resolve is epitomised in POTA.
10. The terrorist threat that we are facing is now on an unprecedented global
scale. Terrorism has become a global threat with global effects. It has become a
challenge to the whole community of civilised nations. Terrorist activities in
one country may take on a transnational character, carrying out attacks across
one border, receiving funding from private parties or a Government across
another and procuring arms from multiple sources. Terrorism in a single country
can readily become a threat to regional peace and security owing to its
spillover effects. It is, therefore, difficult in the present context to draw
sharp distinctions between domestic and international terrorism. Many happenings
in the recent past caused the international community to focus on the issue of
terrorism with renewed intensity. The Security Council unanimously passed
Resolutions Nos. 1368 (2001) and 1373 (2001); the General Assembly adopted
Resolution No. 56/1 by consensus, and convened a special session. All these
resolutions and declarations inter alia call upon member States to take
necessary steps to "prevent and suppress terrorist acts" and also to "prevent
and suppress the financing of terrorist acts". India is a party to all these
resolves. Anti-terrorism activities on the global level are mainly carried out
through bilateral and multilateral cooperation among nations. It has thus become
our international obligation also to pass necessary laws to fight terrorism.
.... ... ...
15. The protection and promotion of human rights under the rule of law is
essential in the prevention of terrorism. Here comes the role of law and court's
responsibility. If human rights are violated in the process of combating
terrorism, it will be self-defeating. Terrorism often thrives where human rights
are violated, which adds to the need to strengthen action to combat violations
of human rights. The lack of hope for justice provides breeding grounds for
terrorism. Terrorism itself should also be understood as an assault on basic
rights. In all cases, the fight against terrorism must be respectful to the
human rights. Our Constitution laid down clear limitations on State actions
within the context of the fight against terrorism. To maintain this delicate
balance by protecting "core" human rights is the responsibility of court in a
matter like this. Constitutional soundness of POTA needs to be judged by keeping
these aspects in mind."
29. Admittedly the allegation against the respondents is that they have
hatched a conspiracy with the other persons for causing explosions in the Mecca
Masjid, Hyderabad and in other places and that they are alleged to be involved
in unlawful activities and terrorist acts as defined in Section 13 and 15 of the
Unlawful Activities (Prevention) Act, 1967.
Therefore while considering the
application for grant of bail by the respondents, the Sessions Court should have
kept these considerations in mind but a reading of the impugned order does not
indicate that the seriousness of the allegations was properly considered .
30. The observations made by the Sessions Court that the respondent Nos.1 and
2 are unlikely to tamper with the evidence of the witnesses is also perverse
for the reason that their statements were already recorded u/S.164 Cr.P.C. As
such, there is no question of tempering with the evidence of the witnesses whose
statements were recorded u/S.164 Cr.P.C.
31. In view of the fact that the Sessions Court has not considered the
parameters for grant of bail and did not apply it's mind to the other
considerations set out above including the provisions of the Unlawful Activities
(Prevention) Act, 1967, the impugned order is set aside.
The matter remitted
back to the designated court for trial of offences under the National
Investigating Agency Act, 2008 (for short 'the designated court') to consider
afresh whether the respondents herein are entitled to grant of bail in the light
of the principles set out above. Although both parties have raised several
contentions touching the merits of the case with regard to grant of the bail and
for cancellation of the bail, we make it clear that we have not expressed any
opinion on the said issue as the matter is being remitted back to the
designated court . It shall pass a fresh reasoned order after considering the
matter within 6 weeks from the date of receipt of a copy of this order. It is
open to the designated court to consider not only the material on record before
it but also any subsequent material procured till date by the appellant
suggesting the involvement of Respondent Nos.1 and 2 in the offences alleged
against them in this case and also in any other case.
32. For the above reasons, the Criminal Appeal is allowed; the order dated
dt.26.11.2012 in Crl.M.P.No.569 of 2012, vide Spl. Sc. No.1 of 2011 of CBI
Police Station in NIA Cr.No.2 of 2011, is set aside and the matter is remitted
back to the designated court for trial of offences under the National
Investigating Agency Act, 2008 (Ist Additional Metropolitan Sessions Judge-cum-
Special Court for NIA Cases), Nampally, Hyderabad, to pass a fresh order in the
light of the observations made above and in accordance with law.
_________________________________________
JUSTICE K.C. BHANU
_________________________________
JUSTICE M.S. RAMACHANDRA RAO
Date : 18-04-2013
THE HON'BLE SRI JUSTICE K.C.BHANU AND THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
Crl.A.No.1197 of 2012
18.04.2013
National Investigation Agency, NIA, Hyderabad.
Devendra Gupta and another
<GIST:
>HEAD NOTE:
!Spl. Public Prosecutor for NIA::Sri P.Vishnuvardhan Reddy,
Senior Counsel for the respondents 1 & 2 : Sri N.Ramachander Rao, representing
Sri M.Vijaya Kanth and Sri Venugopal Julakanti.
? Cases referred:
1 (2009) 3 SCC (Cri) 1480=2009 11 SCC 541
2 (2004) SCC (Cri) 829= (2004) 3 SCC 444
3 (2004) 9 SCC 580
4 (2004) 7 SCC 528
5 (2002) 3 SCC 598
6 (2008) 16 SCC 753
7 (2008) 13 SCC 584
8 (2001) 6 SCC 338
9 (1996) 2 SCC 616
10 (2005) 3 SCC 143
11 (2012) 9 SCC 446
12 Crl.A.No.29 of 2011, dt.July 27, 2011 (unreported)
13 1990 1 SCC 397
14 (1988) 2 SCC 271
15 Unreported Judgment in Crl.A.No.824 of 2012, dt.21.12.2012.
16 AIR 1974 SC 87
17 AIR 1990 SC 1984
18 AIR 2012 SC 830
JUDGMENT:
(Per Hon'ble Sri Justice M.S. Ramachandra Rao)
This is an appeal filed u/S.21 of the National Investigation Agency Act,
2008 by the National Investigation Agency (for short, 'NIA'), Hyderabad,
challenging the order dt.26.11.2012 of the IV Addl. Metropolitan Sessions
Judge, Hyderabad (for short "the Sessions Court") in Crl.M.P.No.569 of 2012,
vide Spl. Sc. No.1 of 2011 of CBI Police Station in NIA Cr.No.2 of 2011.
2. The respondents herein are A.1 and A.2 in Spl. Sc.No.1 of 2011 in NIA
Cr.No.2/2011 wherein they are alleged to have committed offences
u/S.302, 307,326, 120(B) IPC;
Sections 3, 4, 5 of Explosive Substances Act,1908; and
Sections 13, 15, 16, 18, 19 and 23 of Un-lawful Activities (Prevention) Act,1967.
3. The above Crl.M.P.No.569 of 2012 was filed by the respondents seeking
regular bail u/S.439 of Cr.P.C., contending that they are in judicial custody
since 17.06.2010, i.e., for more than two years and 5 months prior to the filing
of the petition;
that on 18.05.2007 at about 01:25p.m., there was a bomb-blast
in Mecca Masjid, Hyderabad, in which nine persons died and fifty-eight persons
suffered injuries;
the same day, the SHO, P.S. Hussaini-Alam, Hyderabad,
(A.P.), registered a case vide Cr.NO.100/2007 u/S.302, 207, 120(B) IPC, Sec.3
and 5 of Explosive Substance Act,1908;
subsequently the case was transferred to
CBI; the CBI re-registered the case vide R.C.No.5(S)/2007/SCR-III/CBI/ND on
6.10.2007 under the same sections of law and took up investigation; they are
innocent and have nothing to do with the offences alleged and have been falsely
implicated in the above case; that there is a connected case
R.C.No.6(S)/2007/SCR-III/CBI/ND with regard to material seized in the premises
of Mecca Masjid which was subsequently defused and was registered suo moto in
Cr.No.107/2007; both the RCs were clubbed and a common investigation was done by
the CBI; a charge-sheet dt.13.12.2010 was filed by the CBI arraying them as
Accused Nos.1 and 2; they were earlier arrested in Ajmer blast case and the CBI
filed PT warrants against them connecting them with the offence; took them into
police custody twice and during the course of investigation while they were in
judicial custody over 205 witnesses were examined and the said charge-sheet was
filed; the CBI has filed false case against them and the entire investigation is
unscientific, motivated and also filed for the purpose of defaming a particular
organization; some other persons were arrested by the A.P. State Police and they
had confessed that they were responsible for the blasts in the Mecca Masjid
after they were subjected to Narco Analysis Test; the only allegation against
them is that some common SIM cards found in the area were purchased by them in
the year 2003 or so and subsequently in the year 2010, i.e., after seven years,
a test identification parade to identify the purchasers of the SIM cards and
mobile phones was made, that too after their photographs appeared in newspapers
and magazines; all the witnesses examined during the investigation spoke about
unconnected matters; the investigation by the CBI is malafide; the entire
episode of Swami Asseemanand, shown as A.6, his confession statement before the
Magistrate, his change of heart by another accused in the related case and
consequent implication of innocent people in his confession proves the malafides
of the prosecution in the entire investigation; as the CBI had completed the
investigation as far as they are concerned and as they are innocent and no way
connected or concerned with the blast at Mecca Masjid or in any other place they
should be released on bail; they came from respectable families and are
permanent residents of Ajmer and Indore and were ready to furnish sureties and
abide by any terms and conditions which may be imposed in the event of grant of
bail.
4. The appellant/NIA filed objection petition to the above bail application
contending that both the respondents were arrayed after investigation by the
CBI; A.3- Sandeep V Dange and A.4-Ram Chandra Kalsangra were absconding; A.5-
Sunil Joshi expired (murdered at Dewas, M.P.); after the CBI filed charge-sheet
on 13.12.2010, considering the gravity of the offence, the fact that the
offences fall under Schedule to the National Investigation Act, 2008 and since
it involves the security of the State, the case was transferred to the NIA by
the Ministry of Home Affairs, Government of India, IS-1 Division by the Order
No.1-11034/18/2011-IS-IV dt.04.04.2011; the NIA re-registered the case as
Cr.No.2/2011 u/S.302, 307, 326, 511 r/w 120(B) IPC, Sections 3, 4, 5 and 6 of
Explosive Substance Act, 1908 and Sections 13, 15 r/w. 16, 18, 19 and 23 of Un-
lawful Activities (Prevention) Act, 1967; the NIA also took up investigation and
all relevant documents were collected; during the course of investigation by the
CBI, the statement of the accused A.6-Swami Asemanand was recorded u/S.164
Cr.P.C. by the Hon'ble Court of Sh. Deepak Dabas, Munsif Magistrate Central-04,
Delhi on 18.12.2010, wherein he had confessed the offence and revealed a larger
conspiracy behind the series of blasts targeting the Muslim populated areas and
involvement and logistic support of the accused. It also contended that :
(a) an un-exploded improvised explosive device (IED) was found immediately
after the bomb blast inside the Mecca Masjid ; upon analysis of this IED by the
APFSL, it was found to have been made of high explosive substances such as RDX
and TNT and that only due to slight damage in the electric circuit it had not
exploded ; if not, more casualties would have occurred; a SIM and a Nokia Hand
set model 6030 with IMEI 353938012488999 was found in this IED and it was
revealed in the investigation that this mobile handset was purchased by the 2nd
respondent ; the same is corroborated by the statement of LW.73-Sachin Bansal
and LW.74 Ishanth Chawla; LW.74 had identified A.2-Lokesh Sharma in Test
Identification Parade as the person who had purchased the said handset;
(b) further the SIM card of the mobile phone number 9732110289 which was
purchased in the fake name of one Babulal Yadav was found in the Nokia 6030
model handset having the above IMEI number and the same was purchased by A.2
which was found along with the un-exploded IDE; this shows the involvement of
A.2 for the purpose of conducting explosions;
(c) LW.118-Vinay Pandey spoke about the close association of the 2nd
respondent and others like Sunil Joshi (A-5) and 1st respondent and about
keeping a gunny bag containing suspicious material in his house by A.5; he also
spoke about the training of Dasarath @ Rajender Pahalwan @ Samundar and Dhan
Singh at Jammu Kashmir who were taken there by Sunil Joshi;
(d) another witness LW.141-Shivam Dhakad stated about the participation of the
2nd respondent in the meeting held at Gujrati Dharmashala, Jaipur in 2005 with
one Indresh along with Samundar @ Rajender Pahalvan, Sunil Joshi, Pragya Singh,
Ramji and others ; later A.5-Sunil Joshi delegated certain tasks to the 2nd
respondent, Ramji and Lokesh Sharma to procure arms/explosives and this proves
their involvement in the conspiracy;
(e) the complicity of the 2nd respondent is also corroborated by the
confession statement of A.6-Swamy Aseemanand, wherein he stated that the 2nd
respondent participated in conspiracy meetings held under his leadership at the
house of A.7-Bharath Bhai and these circumstances prove the involvement of the
2nd respondent in the case; (f) LW.123-Vikas Kumar Pandey spoke about the
efforts of the 2nd respondent to procure EPIC (Election Picture Identity Cards)
with the intention to use them to purchase SIM cards and had identified the 1st
respondent in the Test Identification Parade;
(f) LW.129-Rohith Kumar Jha, in his statement which was recorded u/S.164
Cr.P.C. stated about the association of the 1st respondent with the other
accused A.5-Sunil Joshi, Ramchandra Kalsangra@Ramji for procurement of voter ID
cards and SIMs and he also revealed that the 1st respondent requested him to
arrange voter ID cards or driving licence and when the former asked the purpose
for which they were required the latter responded that they were required for
secret works; in the month of July/August, 2008, he saw the driving licence and
voter identity card in the name of Babulal Yadav, apart from 10 to 15 denonators
and some rounds in the room of 1st respondent - Devender Gupta and when LW.129-
Rohith Kumar Jha enquired with 1st respondent-Devender Gupta why he would wrap
them all in carbon papers, the latter replied that the machines cannot detect
detonators wrapped in carbon papers;
(g) the involvement of the 1st respondent in the offence and his association
with other accused were revealed through the 164 Cr.P.C. statement of LW.130-
Ranjan Kumar Sinha;
(h) all the above material would show that all the accused participated in the
commission of bomb explosion in many of the Muslim populated areas, especially
in Mecca Masjid; and the acts of the accused resulted in the death of nine
persons and injuries to fifty-eight persons by the use of high explosives which
is a terrorist act within the meaning of Section 15 of Un-lawful Activities
(Prevention) Act, 1967 as amended in 2008;
(i) as per Section 43(D) of the said Act, no person accused of an offence
under the said act is entitled to be released on bail, if the accusation against
him is prima facie true;
(j) A.3 and A.4 are still at large and despite strenuous efforts by several
law investigating agencies they could not be arrested; and
(k) if the respondents are granted bail there is every chance that they will
also abscond from the process of law and alert the absconders; since the offence
involved in the case is based on conspiracy, the chance of getting witnesses
outside the acquaintances and former friends of these accused is rare; most of
the witnesses to the conspiracy are former co-travellers of the accused; release
of the accused on bail will therefore result in influencing the witnesses who
are more acquainted with them; and therefore, they prayed that the bail
application filed by respondent Nos.1 and 2 be dismissed.
5. On 16.05.2011, the NIA filed a charge-sheet before the Hon'ble IV Addl.
Metropolitan Sessions Judge-cum-Special Court for N.I.A. Cases, Hyderabad,
Andhra Pradesh, against the respondents herein u/S.302, 307, 326 and 324 r/w.
120 b(B) IPC; Sections 13, 15 r/w.16, 17, 18, 19 and 23 of Unlawful Activities
(Prevention) Act, 1967 (as amended in 2004) and Sections 3, 4 and 5 of Explosive
Substances Act, 1908.
6. By the impugned order dt.26.11.2012, the IV Addl. Metropolitan Sessions
Judge, Hyderabad allowed the Crl.M.P.No.569 of 2012 and found that there were
reasonable grounds for believing that the accusations against the respondents
are prima facie true. Yet he granted bail to the respondent Nos.1 and 2 on
condition that they execute a personal bond of Rs.50,000/- with two sureties
each for a like sum and on their surrendering their passports. He further
directed that they should undertake to co-operate with investigation agency and
not to meddle with any listed witnesses or who would have something to
contribute in the case, apart from attending the court at all relevant times for
the purpose of the case.
7. Aggrieved thereby, the present appeal has been filed u/S.21 of the
National Investigation Agency Act, 2008 by the NIA, Hyderabad.
8. On 03.12.12, this Court admitted the appeal and in Crl.A.M.P.No.2535/2012
granted interim suspension of the order dt.26.11.2012 in Crl.M.P.No.569 of 2012
of the IV Addl. Metropolitan Sessions Judge, Hyderabad. In view of this, the
accused were not released and they continue to be in judicial custody.
9. Heard, Sri P. Vishnuvardhan Reddy - Spl. Public Prosecutor for NIA; Sri N.
Ramachander Rao - Senior Advocate, representing Sri M. Vijaya Kanth and Sri
Venugopal Julakanti - counsel for the respondent Nos.1 and 2.
10. The Spl. Public Prosecutor for the NIA contended that the order of the
Sessions Court granting bail to the respondent Nos.1 and 2 is contrary to law,
perverse and unsustainable; the learned Sessions Judge having found that there
were reasonable grounds for believing that the accusations against the
respondents are prima facie true could not have granted bail to the respondents
in view of the express provision contained in the proviso to sub-section 5 of
Section 43(D); the proviso to sub-Section 5 of Section 43(D) bars the release of
such accused person on bail or on his own bond if the Court, if on a perusal of
the case diary or the report made under section 173 of the Code, it is of the
opinion that there are reasonable grounds for believing that the accusation
against the person is prima facie true; this provision of law has been ignored
by the Sessions Judge while granting bail to the respondents; the view of the
Sessions Judge that while a foreign citizen who is an accused can be released
under exceptional circumstances, it would work out hardship if citizens of India
are denied bail forever is perverse; the view of the Sessions Judge that
respondent Nos.1 and 2 have been in judicial custody for more than 2 years 5
months and there is no possibility of early commencement of trial and so it is
not just and fair to deny them bail, is also perverse; these accused were also
involved in other cases of a similar nature : the 1st respondent is also
involved in the Ajmer Durgah blast case of 2007 (R.C.No.04 of 2011) wherein two
persons died and seventeen persons were injured; the 2nd respondent is also
involved in Malegoan-I case of 2006 (R.C.No.03 of 2011) wherein forty persons
died and sixty-five persons suffered injuries, Samjhouta Train blast of 2007
(R.C.No.09 of 2010) wherein sixty-eight persons died and twelve persons injured,
Ajmer Dargah blast of 2007 (R.C.No.04 of 2011) wherein two persons died and
seventeen injured, apart from the murder case of A.5-Sunil Josh (R.C.No.08 of
2011). The 1st respondent is now at Jaipur jail while the 2nd respondent is at
Ambala Jail; A.3 and A.4 are absconding; A.5 died; A.6 is in judicial custody
at Ambala; A.7 was granted bail on a technical ground as the charge-sheet was
not filed within the stipulated period after remand; and therefore the orders
of the Sessions Judge granting bail are liable to be set aside. The learned
Spl. Public Prosecutor also took us through the statements made by LWs.73, 74
and 130 recorded by the CBI to show that primafacie the respondent Nos.1 and 2
are involved in the commission of the offence. He also contended that the
principles governing the grant of bail as laid down by the Supreme Court of
India and other Courts have not been followed by the Sessions Judge while
passing the impugned order. He relied on the decisions in State of Maharashtra
and others v. Dhanendra Shriram Bhurle and others1; Moulvi Hussain Ibrahim
Umarji v. State of Gujarat2; People's Union for Civil Liberties and another v.
Union of India3; Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and
another4; Ram Govind Upadhyay v. Sudarshan Singh and others5; Lokesh Singh v.
State of Uttar Pradesh and others6; Narendra K. (Admn.) Dr. v. State of Gujarat
and another7; Puran v. Rambilas8; Shaheen Welfare Association v. Union of India
and others9; Panchanan Mishra v. Digambar Mishra and others10; Ash Mohammad v.
Shiv Raj Singh @ lalla babu and another11; Jibangshu Paul v. NIA12; and State of
Maharashtra v. Anand Chintaman Dighe13.
11. The counsel for the respondent Nos.1 and 2 however contended that the
order of the Sessions Judge granting bail to the respondent Nos.1 and 2 is
correct and unassailable; cogent reasons have been given by the Sessions Court
while granting bail to respondent Nos.1 and 2; the respondent Nos.1 and 2 have
been in jail in judicial custody for more than 2 years and 5 months; there is no
possibility of the trial commencing in the near future on account of the fact
that two of the accused are said to be absconding; as the statements of some of
the witnesses were recorded u/S.164 Cr.P.C. there cannot be any danger of
tampering of their evidence by the respondent Nos.1 and 2; the respondent Nos.1
and 2 hail from respectable families and there cannot be any apprehension that
they would abscond; admittedly, there is no confession made by respondent Nos.1
and 2 and there has been no recovery of explosive substances from their
possession; there is no evidence of their physical presence at the scene of the
offence and their fingerprints were also not collected from the scene of the
offence; the test identification parade was held three years after the alleged
incident and it is not possible for any witness to identify a person whom he had
seen once three years before; when the respondent Nos.1 and 2 were arrested
their photos were published in all the newspapers after the Ajmer blast and
therefore, the test identification parade itself has no evidentiary value; the
whole basis of the case of the prosecution is the alleged confession of A.6; the
CBI had selectively leaked this confession to the press and a contempt petition
is filed in the Delhi High Court and it is pending there; and the only
allegation against the respondents is that they had given shelter and beyond
that what role they played in the blasts at Mecca Masjid is not stated by the
prosecution. It is not the allegation of the prosecution that respondent Nos.1
and 2 have triggered them; one Tejo Ram who had been recently arrested and shown
as A.9 is alleged by the prosecution to be the person who planted the Sim bombs
at the Mecca Masjid; LW.73 and 74 spoke of purchase of a cell phone Nokia 6030
by the 2nd respondent; admittedly, the said sale is not evidenced by any
invoice/ bill; there is nothing to link the accused with the said purchase of
cell phone ; it is not as if the RSS, an organization in which the accused are
members is a banned organization or a terrorist organization notified in the
Schedule to the Unlawful Activities (Prevention) Act, 1967; merely, because the
accused are members of the said organization, they cannot be prosecuted; and
therefore, prayed that the order of the Sessions Court be confirmed.
12. The learned senior counsel also took us through the confession statement
of A.6-Swami Aseemanand, recorded u/S.164 Cr.P.C. by the Court of SH. Deepak
Dabas, Munsif Magistrate Central - 04, Delhi in detail.
13. We have noted the submissions of the respective parties.
14. Before we deal with the respective contentions, we wish to state that an
order granting or refusing bail to an accused in a criminal case is essentially
an interlocutory order [see Usmanbhai Dawoodbhai Memon and others v. State of
Gujarat14 and Puran (8 supra)].
Under S.21 of the National Investigation Agency
Act, 2008, appeals are provided against the judgment/sentence or order of a
special court, not being an interlocutory order, to the High Court both on facts
and on law.
But sub-section (4) of Section 21 specifically provides that an
appeal shall lie to the High Court against an order of the Special Court
granting or refusing bail notwithstanding anything contained in sub-section (3)
of Section 378 of Cr.P.C.
In view of this, the order of the Sessions Judge
granting bail to respondent Nos.1 and 2 is appealable to the High Court.
A
similar view has also been taken by this Court in an un-reported judgment NIA v.
Mohmed Anwar Shak and another15. In the said judgment it was also held that an
appeal against an order granting or refusing bail passed by a special court
would lie to a Division Bench of the High Court. Therefore, we hold that the
present appeal challenging the order of the Sessions Judge granting bail to
respondent Nos.1 and 2 is maintainable and that the said appeal would lie to a
Division Bench of the High Court.
15. Now we shall consider whether the order of the Sessions Court impugned
herein is valid in law.
16. It is settled law that while dealing with an application for bail, there
is a need to indicate in the order, the reasons for prima facie concluding why
bail was being granted particularly where an accused was charged of having
committed a serious offence. Some of the circumstances which should be
considered for granting bail to an accused are :
(a) the nature of accusation and the severity of punishment in case of
conviction and the nature of supportive evidence;
(b) reasonable apprehension of tampering of witnesses or apprehension of
threat to the complainant;
(c) prima facie satisfaction of the court in support of the charge;
(d) though a conclusive finding in regard to points urged by the parties is
not expected of the court considering the bail application, some reasons for
prima facie concluding why bail was being granted are required to be indicated.
17. In Puran (8 supra), the Court pointed out:
"Mr Lalit next submitted that once bail has been granted it should not be
cancelled unless there is evidence that the conditions of bail are being
infringed. In support of this submission he relies upon the authority in the
case of Dolat Ram v. State of Haryana. In this case it has been held that
rejection of bail in a non-bailable case at the initial stage and the
cancellation of bail already granted have to be considered and dealt with on
different basis. It has been held that very cogent and overwhelming
circumstances are necessary for an order directing the cancellation of the bail
already granted. It has been held that generally speaking the grounds for
cancellation of bail broadly are interference or attempt to interfere with the
due course of administration of justice or evasion or attempt to evade the due
course of justice or abuse of the concession granted to the accused in any
manner. It is, however, to be noted that this Court has clarified that these
instances are merely illustrative and not exhaustive. One such ground for
cancellation of bail would be where ignoring material and evidence on record a
perverse order granting bail is passed in a heinous crime of this nature and
that too without giving any reasons. Such an order would be against principles
of law. Interest of justice would also require that such a perverse order be set
aside and bail be cancelled. It must be remembered that such offences are on the
rise and have a very serious impact on the society. Therefore, an arbitrary and
wrong exercise of discretion by the trial court has to be corrected.
11. Further, it is to be kept in mind that the concept of setting aside the
unjustified illegal or perverse order is totally different from the concept of
cancelling the bail on the ground that the accused has misconducted himself or
because of some new facts requiring such cancellation."(emphasis ours)
18. In Ram Govind Upadhyay (5 supra), the Supreme Court decreed:
"3. Grant of bail though being a discretionary order - but, however, calls for
exercise of such a discretion in a judicious manner and not as a matter of
course. Order for bail bereft of any cogent reason cannot be sustained. Needless
to record, however, that the grant of bail is dependent upon the contextual
facts of the matter being dealt with by the court and facts, however, do always
vary from case to case. While placement of the accused in the society, though
may be considered but that by itself cannot be a guiding factor in the matter of
grant of bail and the same should and ought always to be coupled with other
circumstances warranting the grant of bail. The nature of the offence is one of
the basic considerations for the grant of bail - more heinous is the crime, the
greater is the chance of rejection of the bail, though, however, dependent on
the factual matrix of the matter.
4. Apart from the above, certain other which may be attributed to be
relevant considerations may also be noticed at this juncture, though however,
the same are only illustrative and not exhaustive, neither there can be any. The
considerations being:
(a) While granting bail the court has to keep in mind not only the nature of
the accusations, but the severity of the punishment, if the accusation entails a
conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the
apprehension of there being a threat for the complainant should also weigh with
the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the
guilt of the accused beyond reasonable doubt but there ought always to be a
prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the
element of genuineness that shall have to be considered in the matter of grant
of bail, and in the event of there being some doubt as to the genuineness of the
prosecution, in the normal course of events, the accused is entitled to an order
of bail.
5. A recent decision of this Court in Prahlad Singh Bhati v. NCT, Delhi lends
concurrence to the observations as above."
19. In Kalyan Chandra Sarkar (4 supra), the Supreme Court stated:
11. The law in regard to grant or refusal of bail is very well settled. The
court granting bail should exercise its discretion in a judicious manner and not
as a matter of course. Though at the stage of granting bail a detailed
examination of evidence and elaborate documentation of the merit of the case
need not be undertaken, there is a need to indicate in such orders reasons for
prima facie concluding why bail was being granted particularly where the accused
is charged of having committed a serious offence. Any order devoid of such
reasons would suffer from non-application of mind. It is also necessary for the
court granting bail to consider among other circumstances, the following factors
also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of
threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See
Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas)
12. In regard to cases where earlier bail applications have been rejected
there is a further onus on the court to consider the subsequent application for
grant of bail by noticing the grounds on which earlier bail applications have
been rejected and after such consideration if the court is of the opinion that
bail has to be granted then the said court will have to give specific reasons
why in spite of such earlier rejection the subsequent application for bail
should be granted. (See Ram Govind Upadhyay.)"
In the said case, the Court held that when an accused is charged of offences
punishable with life imprisonment or even death penalty, mere fact that he had
undergone certain period of incarceration (in that case 3 1/2 years) by itself
would not entitle him to be enlarged on bail, nor the fact that trial is not
likely to be concluded in the near future either by itself or coupled with the
period of incarceration would be sufficient for enlarging the accused on bail
when there are allegations of tampering with the witnesses by him during the
period he was on bail.
20. In Lokesh Singh (6 supra), the Supreme Court held that while dealing with
an application for bail, there is need to indicate in the order, reasons for
prima-facie concluding why bail was being granted particularly where an accused
was charged of having committed a serious offence. It further held that an order
granting bail de hors such reasons suffers from non-application of mind.
21. In Dhanendra Shriram Bhurle (1 supra), the above principles were
reiterated.
22. In Union of India v. Mohan Lal Capoor and others16, the Supreme Court held
that reasons are the links between the materials on which certain conclusions
are based and the actual conclusions. They should disclose how the mind is
applied to the subject matter or a decision, whether it is purely administrative
or quasi-judicial. They should reveal a rational nexus between the facts
considered and the conclusions reached. Only in this way can opinions or
decisions recorded be shown to be manifestly just and reasonable.
23. In S.N. Mukherjee and Union of India17, a Constitution Bench of the
Supreme Court held that a quasi-judicial authority must record reasons for its
decision as the recording of reasons would: (i) guarantee consideration by the
authority; (ii) introduce clarity in the decisions; and (iii) minimize chances
of arbitrariness in decision-making. It also held recording of reasons would
facilitate exercise of jurisdiction by appellate or supervisory authority and
would indicate that the authority had given due consideration to the points in
controversy.
24. A reading of the impugned order shows that no reasons have been given by
the Sessions Judge for granting bail to the respondent Nos.1 and 2. After
extracting the contentions and referring to the provisions of the Unlawful
Activities (Prevention) Act, 1967 and the judgment of the Supreme Court in
Sanjay Chandra v. CBI18, the learned Sessions Judge states "it is true there are
reasonable grounds for believing that the accusations are prima facie true."
There is no reference to the allegations made against the respondent Nos.1 and 2
in the charge-sheet filed by the NIA or the material collected by the CBI during
the investigation conducted by it. As regards the involvement of the respondent
Nos.1 and 2 in the said offence, at the stage of granting bail , no doubt a
detailed examination of evidence and elaborate documentation of the merits of
the case is not to be undertaken. But this does not mean that while granting
bail some reasons for prima facie concluding why bail was being granted are not
required to be indicated. Thus the order of the Sessions Court impugned herein
is clearly vitiated on the ground that it has not given any reasons as to why it
was granting bail to the accused.
25. As the respondent Nos.1 and 2 are alleged to have committed offences under
S.13 and 15 of the Unlawful Activities (Prevention) Act, 1967, the Court below
should also have kept in mind the proviso to sub-section (5) of Section 43(D) of
the said Act. S.43 D of the Unlawful Activities (Prevention) Act, 1967 states as
follows:
"43D. 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 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".
(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
punishable under this Act.
(6) Notwithstanding anything contained in the Code, no person accused of an
offence punishable under 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 the person is prima facie true.
(7) The restrictions on granting of bail specified in sub-section (6) is in
addition to the restrictions under the Code or any other law for the time being
in force on granting of bail.
(8) Notwithstanding anything contained in sub-sections (6) and (7), 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.
Thus, proviso to sub-section (5) of S.43-D (wrongly shown as sub-section (6) in
the text of the Act) prohibits the grant of bail to an accused if, on a perusal
of the case diary or the report made u/S.173 of Cr.P.C., the court is of the
opinion that there are reasonable grounds for believing that the accusation
against a person is prima facie true.
26. In Jibangshu Paul (12 supra), the High Court of Assam interpreted sub-
Section 5 of Section 43D as follows :
"87. A bare reading of Sub-Section (5) of Section 43D shows that apart from the
fact that Sub-Section (5) bars a Special Court from releasing an accused on bail
without affording the Public Prosecutor an opportunity of being heard on the
application seeking release of an accused on bail, the proviso to Sub-Section
(5) of Section 43D puts a complete embargo on the powers of the Special Court to
release an accused on bail by laying down that if the Court, on perusal of the
case diary or the report made under Section 173 of the Code of Criminal
Procedure, is of the opinion that there are reasonable grounds for believing
that the accusation, against such person, as regards commission of offence or
offences under Chapter IV and/or Chapter VI of the UA(P) Act is prima facie
true, such accused person shall not be released on bail or on his own bond.
88. Thus, if the Special Court, on perusal of the case diary, forms an opinion
that there are reasonable grounds for believing that the accusation, against an
accused person, of the commission of offences or offences under Chapter IV
and/or Chapter VI is prima facie true, it will not remain within the powers of
the Court to grant bail in such a case. This position is further made clear by
Sub-Section (6) of Section 43D, which lays down that the restrictions, on
granting of bail specified in sub-section (5), are in addition to the
restrictions under the Code of Criminal Procedure or any other law for the time
being in force on granting of bail. The logical conclusion would, therefore, be
that in a case, investigated by the agency, if the Special Court forms an
opinion that there are reasonable grounds for believing that the accused has
committed an offence punishable with death or imprisonment for life, the Special
Court would have no jurisdiction to grant bail to such an accused except as may
be provided by law.
... ...
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, against the accused, is true, a case of commission
of offence under Chapter IV or Chapter VI of the UA(P) Act, 1967, cane be said
to have been made out and when such a case is made out, it would be tantamount
to saying that reasonable grounds exist for opining that the accusations are
prima facie true. In such a case, the bar, imposed by the proviso to Section
43-D(5) on the court's power to grant bail, gets attracted.
... ... ...
122. It needs to be noted, at this stage, that the accused was released on
bail, on 26.02.2009, by the learned District Magistrate, NC Hills, acting as a
Judicial Magistrate under Section 437 Cr.P.C. barely within a period of two
weeks, but what were the considerations for bail. The learned Magistrate had
observed, for the purpose of granting bail, that the co-accused were on bail,
the accused was ready to co-operate with the police during investigation and
there is no chance of his absconding as he is a local person and that his
release on bail is not likely to adversely affect investigation. The
considerations, which prevailed upon the learned Magistrate, while granting
bail, were contrary to the Full Bench decision of this Court in Re -State of
Assam (suo moto), reported in 2007 (1) GLT 330 (FB), which we have referred to,
and which clearly lays down that if there is a 'reasonable ground' for holding
that the accused has committed an offence, which is punishable by death or
imprisonment for life, the Magistrate has no power to grant him bail unless the
case of the accused falls within one or more of the exceptions embodied in the
proviso to Section 437 Cr.P.C."(emphasis ours)
27. In the present case also, the Sessions Judge had held that there are
reasonable grounds for believing that the accusations against the accused are
prima facie true, yet he granted bail. Although this finding is not supported
by reasons (as held by us supra), we are of the opinion that if there are
reasonable grounds for believing that the accusations are prima facie true, in
view of proviso to sub-Section (5) of Section 43D, the accused are not entitled
to grant of bail. The Sessions Judge noticed the proviso to Sub-section (5) to
S.43-D but perversely held ,referring to sub-Section (7) of Section 43D that
if persons who are not citizens of India can get bail in exceptional
circumstances, citizens of India are certainly entitled to grant of bail and the
law does not contemplate prohibition to grant of bail forever to citizens of
India. In our opinion, it is not open to the Sessions Court to interpret the
provisions of Section 43D in this manner and this reasoning is clearly
erroneous.
28. In People's Union for Civil Liberties (3 supra), certain observations were
made by the Supreme Court of India while considering the provisions of the
Prevention of Terrorism Act, 2002. The Supreme Court stated :
"4........Terrorism has become the most worrying feature of contemporary life.
Though violent behaviour is not new, the present-day "terrorism" in its full
incarnation has obtained a different character and poses extraordinary
challenges to the civilised world. The basic edifices of a modern State, like
democracy, State security, rule of law, sovereignty and integrity, basic human
rights etc. are under the attack of terrorism....
.....
8. These terrorist strikes have certain common features. They could be very
broadly grouped into three:
1. Attack on the institution of democracy, which is the very basis of our
country (by attacking Parliament, Legislative Assembly etc.). And the attack on
economic system by targeting economic nerve centres.
2. Attack on symbols of national pride and on security/strategic
installations (e.g. Red Fort, military installations and camps, radio stations
etc.).
3. Attack on civilians to generate terror and fear psychosis among the
general populace. The attack at worshipping places to injure sentiments and to
whip communal passions. These are designed to position the people against the
Government by creating a feeling of insecurity.
9. Terrorist acts are meant to destabilise the nation by challenging its
sovereignty and integrity, to raze the constitutional principles that we hold
dear, to create a psyche of fear and anarchism among common people, to tear
apart the secular fabric, to overthrow democratically elected government, to
promote prejudice and bigotry, to demoralise the security forces, to thwart the
economic progress and development and so on. This cannot be equated with a usual
law and order problem within a State. On the other hand, it is inter-State,
international or cross-border in character. Fight against the overt and covert
acts of terrorism is not a regular criminal justice endeavour. Rather, it is
defence of our nation and its citizens. It is a challenge to the whole nation
and invisible force of Indianness that binds this great nation together.
Therefore, terrorism is a new challenge for law enforcement. By indulging in
terrorist activities organised groups or individuals, trained, inspired and
supported by fundamentalists and anti-Indian elements are trying to destabilise
the country. This new breed of menace was hitherto unheard of. Terrorism is
definitely a criminal act, but it is much more than mere criminality. Today the
Government is charged with the duty of protecting the unity, integrity,
secularism and sovereignty of India from terrorists, both from outside and
within the borders. To face terrorism we need new approaches, techniques,
weapons, expertise and of course new laws. In the above said circumstances
Parliament felt that a new anti-terrorism law is necessary for a better future.
This parliamentary resolve is epitomised in POTA.
10. The terrorist threat that we are facing is now on an unprecedented global
scale. Terrorism has become a global threat with global effects. It has become a
challenge to the whole community of civilised nations. Terrorist activities in
one country may take on a transnational character, carrying out attacks across
one border, receiving funding from private parties or a Government across
another and procuring arms from multiple sources. Terrorism in a single country
can readily become a threat to regional peace and security owing to its
spillover effects. It is, therefore, difficult in the present context to draw
sharp distinctions between domestic and international terrorism. Many happenings
in the recent past caused the international community to focus on the issue of
terrorism with renewed intensity. The Security Council unanimously passed
Resolutions Nos. 1368 (2001) and 1373 (2001); the General Assembly adopted
Resolution No. 56/1 by consensus, and convened a special session. All these
resolutions and declarations inter alia call upon member States to take
necessary steps to "prevent and suppress terrorist acts" and also to "prevent
and suppress the financing of terrorist acts". India is a party to all these
resolves. Anti-terrorism activities on the global level are mainly carried out
through bilateral and multilateral cooperation among nations. It has thus become
our international obligation also to pass necessary laws to fight terrorism.
.... ... ...
15. The protection and promotion of human rights under the rule of law is
essential in the prevention of terrorism. Here comes the role of law and court's
responsibility. If human rights are violated in the process of combating
terrorism, it will be self-defeating. Terrorism often thrives where human rights
are violated, which adds to the need to strengthen action to combat violations
of human rights. The lack of hope for justice provides breeding grounds for
terrorism. Terrorism itself should also be understood as an assault on basic
rights. In all cases, the fight against terrorism must be respectful to the
human rights. Our Constitution laid down clear limitations on State actions
within the context of the fight against terrorism. To maintain this delicate
balance by protecting "core" human rights is the responsibility of court in a
matter like this. Constitutional soundness of POTA needs to be judged by keeping
these aspects in mind."
29. Admittedly the allegation against the respondents is that they have
hatched a conspiracy with the other persons for causing explosions in the Mecca
Masjid, Hyderabad and in other places and that they are alleged to be involved
in unlawful activities and terrorist acts as defined in Section 13 and 15 of the
Unlawful Activities (Prevention) Act, 1967.
Therefore while considering the
application for grant of bail by the respondents, the Sessions Court should have
kept these considerations in mind but a reading of the impugned order does not
indicate that the seriousness of the allegations was properly considered .
30. The observations made by the Sessions Court that the respondent Nos.1 and
2 are unlikely to tamper with the evidence of the witnesses is also perverse
for the reason that their statements were already recorded u/S.164 Cr.P.C. As
such, there is no question of tempering with the evidence of the witnesses whose
statements were recorded u/S.164 Cr.P.C.
31. In view of the fact that the Sessions Court has not considered the
parameters for grant of bail and did not apply it's mind to the other
considerations set out above including the provisions of the Unlawful Activities
(Prevention) Act, 1967, the impugned order is set aside.
The matter remitted
back to the designated court for trial of offences under the National
Investigating Agency Act, 2008 (for short 'the designated court') to consider
afresh whether the respondents herein are entitled to grant of bail in the light
of the principles set out above. Although both parties have raised several
contentions touching the merits of the case with regard to grant of the bail and
for cancellation of the bail, we make it clear that we have not expressed any
opinion on the said issue as the matter is being remitted back to the
designated court . It shall pass a fresh reasoned order after considering the
matter within 6 weeks from the date of receipt of a copy of this order. It is
open to the designated court to consider not only the material on record before
it but also any subsequent material procured till date by the appellant
suggesting the involvement of Respondent Nos.1 and 2 in the offences alleged
against them in this case and also in any other case.
32. For the above reasons, the Criminal Appeal is allowed; the order dated
dt.26.11.2012 in Crl.M.P.No.569 of 2012, vide Spl. Sc. No.1 of 2011 of CBI
Police Station in NIA Cr.No.2 of 2011, is set aside and the matter is remitted
back to the designated court for trial of offences under the National
Investigating Agency Act, 2008 (Ist Additional Metropolitan Sessions Judge-cum-
Special Court for NIA Cases), Nampally, Hyderabad, to pass a fresh order in the
light of the observations made above and in accordance with law.
_________________________________________
JUSTICE K.C. BHANU
_________________________________
JUSTICE M.S. RAMACHANDRA RAO
Date : 18-04-2013
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