Appeal against dismissal of bail
The appellant before us assails the order of a Division Bench of the High Court of Judicature at Bombay passed on 17.01.2023, disposing her application for bail with liberty to approach the Trial Court for filing a fresh application for bail.
FIR was registered
2. The appellant was detained on 06.06.2018 in connection with First Investigation Report (“FIR”) no. 04/2018 dated 08.01.2018 registered with Vishrambaug Police Station, Pune alleging commission of offences under Sections 153A, 505 (1b), 117 read with Section 34 of the Indian Penal Code, 1860 (“1860 Code”). The complaints therein related to violence that broke out at a function organised by Elgar Parishad. Certain acts of violence had taken place at Shanivarwada, Pune on 31.12.2017 thereafter. The prosecution’s case is that in the said programme, provocative speeches were delivered and there were cultural performances which had the effect of creating enmity between caste groups, resulting in disruption of communal harmony, violence, and loss of life. The said FIR was initially lodged against the organisers of the Elgar Parishad event, which included activists of a cultural body, known as Kabir Kala Manch. The appellant before us was not named in that FIR as an accused at that point of time.
Investigation was expanded and section 120-B IPC was added
3. Subsequently, the scope of investigation was expanded and Section 120-B of the 1860 Code was added to the list of offences on 06.03.2018. The State Police, who were investigating the case at that point of time raided houses of eight accused persons on 17.04.2018, namely (1) Rona Wilson of Delhi, (2) Surendra Gading of Nagpur, (3) Sudhir Dhawale of Mumbai, (4) Harshali Potdar of Mumbai, (5) Sagar Gorkhe of Pune, (6) Deepak Dhaeagale of Pune, (7) Jyoti Jagtap of Pune and (8) Ramesh Gaychore of Pune. The State Police, allegedly, found incriminatory materials from the residences of the raided persons. The State Police seemed to have had discovered a larger conspiracy of which the appellant was a part, according to the prosecution. They found that Communist Party of India (Maoist) [“CPI (Maoist)”] to be behind such conspiracy. The latter is a banned terrorist organisation, and has been included in the First Schedule of the Unlawful Activities (Prevention) Act, 1967 (“1967 Act”) by an order of the Union Home Ministry dated 22.06.2009. This led to invoking offences under Sections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act. On 06.06.2018, appellant’s residence was raided and certain literatures, electronic devices and mobile phones were seized from her. On that date itself, the appellant came to be arrested by the State Police.
Initial and supplementary chargesheet were filed
5. On 15.11.2018, the initial chargesheet was submitted by the State Police invoking allegations of commission of offences under Sections 153A, 501(1)(b), 117, 120B, 121, 121A, 124A & 34 of the 1860 Code read with Sections 13, 16, 17, 18, 18B, 20, 38, 39 & 40 of the 1967 Act. The appellant was implicated in the said chargesheet as accused no. 4 for having committed offences under the aforesaid provisions. In column 10 of this chargesheet, under the heading “Details of accused charge-sheeted (with absconding accused)” names of Sudhir Prahlad Dhavle, Rona Jacob Wilson, Surendra Pundlikrao Gadling, Shoma Sen (the appellant) and Mahesh Sitaram Raut appear as arrested accused whereas names of five other accused persons have been shown as “at present underground”. A supplementary chargesheet was also filed by the State Police on 21.02.2019, broadly under the same provisions, implicating certain other individuals, Varavara Rao, Vernon Gonzalves, Arun Ferreira and Sudha Bhardwaj as accused persons in the same case.
During initial chargesheet bail was filed before sessions which was got dismissed
6. After filing of the initial chargesheet, the appellant had preferred a bail application before the Sessions Court at Pune on 13.12.2018. The Additional Sessions Judge, upon going through the two chargesheets dated 15.11.2018 and 21.11.2019, rejected her bail plea by an order dated 06.11.2019. The Sessions Court applied the bail restricting provision contained in Section 43-D (5) of the 1967 Act to deny bail to the appellant. Thereafter, on 09.01.2020, the appellant had filed a regular bail application 5 before the High Court of Judicature at Bombay, invoking the provisions of Section 439 of the 1973 Code.
7. As the investigation had been transferred to the NIA during subsistence of the bail application before the High Court, the learned Single Judge, before whom the appellant’s petition was pending, directed that the bail application ought to be placed before a Division Bench and the NIA was also impleaded as respondent to the said petition. Under normal circumstances, the bail petition would have been heard by a learned Single Judge only. This direction, however, was made considering the provisions of Section 21(2) of the 2008 Act. The order dated 17.07.2021 passed by the learned Single Judge of the High Court, placing the bail application before the Division Bench, reads: –
“……………………………………………………”
Case explained by the Hon’ble Supreme Court
11. This was a case where the respondent-accused was implicated in offences of sexual assault and kidnapping of a minor girl along with other related offences and the accused was convicted by the Trial Court. Conviction of the respondent along with the co-accused was set aside by a Single Judge of the High Court. It was contended by the State before this Court that the judgment of acquittal was passed by the High Court ignoring the statement of prosecutrix, made under Section 164 of the 1973 Code, as also her testimony before the trial court. It was in the context of this argument that the aforesaid judgment was delivered and observations were made in the passage quoted above. The same course, in our opinion, would not be mandatory on the question of considering pre-trial bail plea.
Whether the course adopted by the High Court could be invalidated because another course suggested by the appellant is available?
14. Now, the question arises as to whether the course adopted by the High Court ought to be invalidated by us simply because another course, which is suggested by the appellant, could also be adopted by the High Court. In our view, under ordinary circumstances, we might not have had interfered with the High Court’s judgment and order which is under appeal before us. The course adopted by the High Court was a permissible course. We, however, must take into account that the High Court had passed the aforesaid order when the appellant, a lady, was in detention for over four and a half years. At present, the appellant has been in detention for almost six years, her age is over 66 years and charges have not yet been framed. The appellant has also moved an application before us, registered as CRL MP No. 166531 of 2023, in which various ailments from which she suffers have been cited and prayer is made for bail on medical grounds as well.
Courts hearing the question of bail must scan the case diary or report under section 173 Cr.P.C to for an opinion on accusation
20. We shall now test the appellant’s claim for bail on merit. Having regard to the proviso to Section 43D (5)1 Court hearing the question of bail is under duty to scan through the case diary or report made under Section 173 of the Code for the purpose of forming an opinion to the effect that there are reasonable grounds for believing that the accusation against the appellant is prima facie true. This test would apply in only relation to offences stipulated under Chapters IV and VI of the 1967 Act. So far as the prosecution’s accusation against the appellant is concerned, allegations of commission of offences under Sections 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act come within the purview of the bail restricting clause as specified in the aforesaid provision. The manner in which the Court shall come to such a finding at the stage of considering petition for bail has been dealt with and explained in two judgments of two Coordinate Benches of this Court in the cases of National Investigation Agency -vs-Zahoor Ahmad Shah Watali [(2019) 5 SCC 1] and Vernon -vs- The State of Maharashtra & Anr. [2023 INSC 655]. (One of us, Aniruddha Bose J., was a party to the latter judgement).
Analysing of materials for allegations against the appellant for commission of offence
29. In the light of these materials we shall have to examine the strength of prosecution’s case to implicate the appellant in the offences specified under Sections 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act. There is also allegation against her for commission of offence under Section 13 of the same statute, but that offence does not come under the purview of the bail restricting provision of Section 43D (5) of the 1967 Act and we shall deal with that accusation in the succeeding paragraphs of this judgment. The offences under Chapter IV of the 1967 Act with which the appellant has been charged with by the prosecuting agency, mainly stem from commission of a terrorist act or any act in connection therewith. Section 15 of the 1967 Act stipulates: –
What is terrorist act is being explained by the Hon’ble Supreme Court?
30. We are not concerned with sub-section (2) of the said provision. In this appeal, there is no allegation of any act of the appellant constituting an offence within the scope of the Second Schedule to the same statute. Sub-section (1) of Section 15 refers to certain acts which would constitute a terrorist act but the first part of sub-section (1) of Section 15 cannot be read in isolation. In our reading of the said provision of the statute, to qualify for being a terrorist act, such act must be done with intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India or such act must be accompanied with an intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country. These are initial requirements to invoke Section 15(1) of the 1967 Act. The legislature, however, has not left the nature of such acts unspecified and in sub-clauses (a), (b), and (c) of the said sub-section, the law stipulates the manner of commission of the acts specified in first part of sub-section (1) of said Section 15. If any offender attempts to commit any of the acts specified in Section 15(1), to come within the ambit of the expression “terrorist act” under the 1967 legislation, action or intention to cause such act must be by those means, which have been specified in sub-clauses (a), (b), and (c) of the said provision. This is the line of reasoning broadly followed by this Court in the case of Vernon (supra) in construing the applicability of the said provision. If we examine the acts attributed to the appellant by 36 the various witnesses or as inferred from the evidence relied on by the prosecution, we do not find prima facie commission or attempt to commit any terrorist act by the appellant applying the aforesaid test for invoking Section 15 read with Section 162 of the 1967 Act.
The act of appellant prima facie do not reveal the commission of an offence
32. As regards the allegation against the appellant for committing an offence under Section 184 of the 1967 Act are concerned, which includes conspiracy or attempt on her part to commit, advocate, abet, advice, incite or facilitate commission or any terrorist act, the materials collected so far, even if we believe them to be true at this stage, applying the principles enunciated by this Court in the case of Zahoor Ahmad Shah Watali (supra), only reveal her participation in some meetings and her attempt to encourage women to join the struggle for new democratic revolution. These allegations, prima facie, do not reveal the commission of an offence under Section 18 of the 1967 Act.
34. So far as the allegation of prosecution of the appellant being member of frontal organisation of CPI (Maoist), reference has been made to RDF, IAPL, CPDR, AGMC and KKM. But apart from mere allegations that these are frontal organizations of CPI (Maoist), no credible evidence has been produced before us through which these organisations can be connected to the aforesaid banned terrorist organization. Thus, the offence under Section 20 of the 1967 Act relating to membership of a terrorist organisation which is involved in a terrorist act, cannot be made out against the appellant at this stage, on the basis of materials produced before us. Relying on the judgement of this Court in the case of Vernon (supra), we have already dealt with the position of the appellant vis-à-vis terrorist acts in the earlier paragraphs of this judgement and we prima facie do not think that Section 206 of the 1967 Act can be made applicable against the appellant at this stage of the proceeding based on the available materials.
36. In the light of our observations made in this judgment and on our perusal of the evidences collected against her as also the allegations made by prosecution witnesses, we are of the opinion that there is no reasonable ground for believing that the accusations against the appellants for commission of the offences incorporated in Chapter IV and VI of the 1967 Act are prima facie true.
Judgments
37. In the case of K.A. Najeeb -vs- Union of India [(2021) 3 SCC 713], a three Judge Bench of this Court (of which one of us Aniruddha Bose, J was a party), has held that a Constitutional Court is not strictly bound by the prohibitory provisions of grant of bail in the 1967 Act and can exercise its constitutional jurisdiction to release an accused on bail who has been incarcerated for a long period of time, relying on Article 21 of Constitution of India. This decision was sought to be distinguished by Mr. Nataraj on facts relying on judgment of this Court in the case of Gurwinder Singh -vs- State of Punjab [2024 INSC 92]. In this judgment, it has been held:-
“32. The Appellant’s counsel has relied upon the case of KA Najeeb (supra) to back its contention that the appellant has been in jail for last five years which is contrary to law laid down in the said case. While this argument may appear compelling at first glance, it lacks depth and 22 substance. In KA Najeeb’s case this court was confronted with a circumstance wherein except the respondent-accused, other co-accused had already undergone trial and were sentenced to imprisonment of not exceeding eight years therefore this court’s decision to consider bail was grounded in the anticipation of the impending sentence that the respondent accused might face upon conviction and since the respondent-accused had already served portion of the maximum imprisonment i.e., more than five years, this court took it as a factor influencing its assessment to grant bail. Further, in KA Najeeb’s case the trial of the respondent-accused was severed from the other co-accused owing to his absconding and he was traced back in 2015 and was being separately tried thereafter and the NIA had filed a long list of witnesses that were left to be examined with reference to the said accused therefore this court was of the view of unlikelihood of completion of trial in near future. However, in the present case the trial is already under way and 22 witnesses including the protected witnesses have been examined. As already discussed, the material available on record indicates the involvement of the appellant in furtherance of terrorist activities backed by members of banned terrorist organization involving exchange of large quantum of money through different channels which needs to be deciphered and therefore in such a scenario if the appellant is released on bail there is every likelihood that he will influence the key witnesses of the case which might hamper the process of justice. 23 Therefore, mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail. Hence, the aforesaid argument on the behalf the appellant cannot be accepted.”
Bail is a fundamental right under Article 21 of the Constitution
38. Relying on this judgement, Mr. Nataraj, submits that bail is not a fundamental right. Secondly, to be entitled to be enlarged on bail, an accused charged with offences enumerated in Chapters IV and VI of the 1967 Act, must fulfil the conditions specified in Section 43D (5) thereof. We do not accept the first part of this submission. This Court has already accepted right of an accused under the said offences of the 1967 Act to be enlarged on bail founding such right on Article 21 of the Constitution of India. This was in the case of Najeeb (supra), and in that judgment, long period of incarceration was held to be a valid ground to enlarge an accused on bail in spite of the bailrestricting provision of Section 43D (5) of the 1967 Act. Preconviction detention is necessary to collect evidence (at the investigation stage), to maintain purity in the course of trial and also to prevent an accused from being fugitive from justice. Such detention is also necessary to prevent further commission of offence by the same accused. Depending on gravity and seriousness of the offence alleged to have been committed by an accused, detention before conclusion of trial at the investigation and post-chargesheet stage has the sanction of law broadly on these reasonings. But any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in the facts of a given case. These would be the overarching principles which the law Courts would have to apply while testing prosecution’s plea of pre-trial detention, both at investigation and post-chargesheet stage.
40. Two authorities have been cited by the appellant in which gross delay in trial was held to be a ground for granting bail in statutes in which there was restriction on such grant. These are the judgements of this court in the cases of Shaheen Welfare Association -vs- Union of India and Others [(1996) 2 SCC 616] and Angela Harish Sontakke -vs- State of Maharashtra [(2021) 3 SCC 723]. But each of these cases has been decided on their own facts and so far as the appellant’s case is concerned, we have examined the materials disclosed before us and given our finding as regards applicability of Section 43D (5) of the 1967 Act in her case.
43. In the event there is breach of any of these conditions or any other condition that may be imposed by the Special Court independently, it would be open to the prosecution to seek cancellation of bail granted to the appellant before the Special Court only, without any further reference to this Court.
Party
SHOMA KANTI SEN …APPELLANT(S) VS THE STATE OF MAHARASHTRA & ANR. …RESPONDENT(S) – CRIMINAL APPEAL NO. 2595 OF 2023 – 2024 INSC 269 – April 5th, 2024
Shoma Kanti Sen vs. The State of Maharashtra 128352023_2024-04-05
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