1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1448 OF 2017

(Arising out of Special Leave Petition (Crl.) No. 3716 OF 2017)

Lt. Col. Prasad Shrikant Purohit .... Appellant(s)

Versus

State of Maharashtra .... Respondent(s)

J U D G M E N T

R.K. Agrawal, J.

1) Leave granted.

2) This appeal is directed against the judgment and order

dated 25.04.2017 passed by the High Court of Judicature at

Bombay in Criminal Appeal No. 664 of 2016 whereby the

Division Bench of the High Court dismissed the bail

application filed by the appellant herein.

3)Brief facts:

(a) On 29.09.2008, at around 9:35 p.m., a bomb explosion

took place at Malegaon, District Nasik, opposite Shakil Goods

2

Transport Company between Anjuman Chowk and Bhiku

Chowk. The said blast was caused by explosive device fitted in

LML Freedom Motor Cycle bearing Registration No.

MH-15-P-4572. As a result of the said explosion, six persons

were killed and about 100 persons had received injuries of

various nature. Damage to the property was also caused.

(b)The offence came to be registered under CR No.

130/2008 in Azad Nagar Police Station, Malegaon under

Sections 302, 307, 326, 324, 427, 153-A and 120-B of the

Indian Penal Code, 1860 (in short ‘the IPC’) read with Sections

3, 4, 5 and 6 of the Explosive Substances Act read with

Sections 3, 5 and 25 of the Arms Act, 1959.

(c) During the course of investigation, the samples collected

from the place of offence were sent to the Forensic Science

Laboratory at Nasik and the same were found to be containing

Cyclonite (RDX) and Ammonium Nitrate. On 18.10.2008, the

provisions of Sections 15, 16, 17, 18, 20 and 23 of the

Unlawful Activities (Prevention) Act, 1967 (Amended) 2004, (in

short ‘the UAP Act’) were invoked and the case was entrusted

to Deputy Superintendent of Police, (HQ), Nasik Rural. On

3

26.10.2008, the Anti-Terrorist Squad (ATS), Mumbai took

charge of the investigation and on 29.11.2008, the provisions

of Maharashtra Control of Organized Crime Act, 1999 (in short

‘the MCOC Act) were added.

(d) During investigation, it was found that the appellant

herein, along with other co-accused in the case, entered into a

criminal conspiracy between January, 2008 to October, 2008

with a common object and intention to strike terror in the

minds of people caused bomb blast at Malegaon by using

explosive substances to cause damage to life and property and

to create communal rift. According to ATS, the appellant

herein had brought RDX with him from Kashmir for the

purpose of Bomb Blast at Malegaon.

(e)During investigation, it has been further revealed by the

ATS that the appellant herein was a serving Army Officer and

was associated with Military Intelligence and Interior

Terrorism (Insurgency Activities). The appellant herein floated

‘Abhinav Bharat’ organization in the year 2007 inspite of being

serving as a Commissioned Officer in Armed Forces. The other

co-accused in the case were also the members of the said

4

organization. The object of the Organization was to turn India

into a Hindu Rashtra called as ‘Aryavrat’. They had planned

to train persons for guerrilla war and had also decided to kill

the persons opposing their object of formation of a Hindu

Rashtra. As per the investigation, it has also come out that

the appellant herein along with other persons had participated

in various meetings of the said Organization to discuss various

aspects for achieving their goals. Further, it is the case of the

ATS that the organization, viz., ‘Abhinav Bharat’ is an

Organized Crime Syndicate and its members including the

appellant herein were active since 2003. In one of the

meetings at Bhopal, on 11/12 April, 2008, the criminal

conspiracy to cause bomb blast at Malegaon was hatched. In

the said meeting, the appellant herein took the responsibility

of providing explosives for the common object in order to take

revenge of ‘Jihadi’ activities by Muslim community.

(f)After completion of the investigation, on 20.01.2009, the

ATS, Mumbai, filed charge sheet under Sections 302, 307,

326, 324, 427, 153A read with Section 120B of the IPC and

Sections 3, 5 and 25 of the Arms Act and Sections 15, 16, 17,

5

18, 20 and 23 of the UAP Act, Sections 3(1)(i), 3(1)(ii), 3(2),

3(3), 3(5) of the MCOC Act, Sections 3, 4, 5 and 6 of the

Explosive Substances Act.

(g)The appellant came to be arrested on 05.11.2008 in

connection to the said offence. The appellant herein preferred

a Bail Application being No. 42 of 2008 before the Special

Judge under MCOCA for Greater Mumbai. By order dated

31.07.2009, the Special Judge discharged the appellant and

other co-accused from the offences under MCOC Act and

directed to transfer the case to the regular court at Nasik. The

State Government, being aggrieved by the order dated

31.07.2009, filed an appeal being 866 of 2009 before the High

Court. A Division Bench of the High Court, vide order dated

19.07.2010, set aside the order dated 31.07.2009 and restored

the bail application filed by the appellant herein for hearing on

merits. The appellant herein went in appeal before this Court

and filed Criminal Appeal Nos. 1969-1970 of 2010. It would

be appropriate to mention here that after filing of the charge

sheet by ATS, Mumbai, the investigation of the same was

started by the National Investigation Agency, (NIA), New Delhi

6

as per the order of the Government of India dated 01.04.2011

and on 13.04.2011, the NIA re-registered the offence in respect

of the said incident as CR No. 5/11.

(h)This Court, in Prasad Shrikant Purohit vs. State of

Maharashtra and Another (2015) 7 SCC 440, dismissed the

criminal appeals filed by the appellant herein while restoring

the Bail Application No. 42 of 2008 to the file of the Special

Judge for passing orders on merits. On the question of

applicability of the MCOC Act, this Court has observed as

under:-

“95. In the light of our above conclusions on the various

submissions, we are convinced that in respect of the

appellant in Criminal Appeal No. 1971 of 2010, namely, A-7,

there is no scope even for the limited purpose of Section

21(4)(b) to hold that application of MCOCA is doubtful. We

have held that the said appellant A-7 had every nexus with

all the three crimes, namely, Parbhani, Jalna and Malegaon

and, therefore, the bar for grant of bail under Section 21

would clearly operate against him and there is no scope for

granting any bail. Insofar as the rest of the appellants are

concerned, for the purpose of invoking Section 21(4)( b),

namely, to consider their claim for bail, it can be held that

for the present juncture with the available materials on

record, it is not possible to show any nexus of the appellants

who have been proceeded against for their involvement in

Malegaon blast with the two earlier cases, namely, Parbhani

and Jalna. There is considerable doubt about their

involvement in Parbhani and Jalna and, therefore, they are

entitled for their bail applications to be considered on

merits.”

7

Vide order dated 12.10.2015, the Special Judge, rejected the

bail application of the appellant herein. Aggrieved by the

decision dated 12.10.2015, the appellant herein preferred a

Criminal Appeal being No. 138 of 2016 before the High Court.

During the pendency of the aforesaid appeal before the High

Court, the NIA submitted supplementary charge sheet

dropping the charges under MCOCA against all the accused

persons including the appellant herein. In view of the

supplementary charge sheet by the NIA, the High Court

permitted the appellant herein to file fresh bail application.

(i)The appellant herein filed a fresh bail application before

the Court of Special Judge under MCOC Act, 1999 and NIA

Act, 2008 for Greater Mumbai. The Special Judge, vide order

dated 26.09.2016, denied the bail to the appellant herein.

Being aggrieved by the order dated 26.09.2016, the appellant

herein went in appeal before the High Court and filed Criminal

Appeal No. 664 of 2016. The NIA resisted the bail application

of the appellant herein on various grounds before the High

Court. On 25.04.2017, a Division Bench of the High Court,

dismissed the bail application of the appellant herein.

8

Aggrieved by the order dated 25.04.2017, the appellant has

filed this appeal before this Court by way of special leave.

4)Heard Mr. Harish Salve, learned senior counsel for the

appellant herein and Mr. Maninder Singh, learned Additional

Solicitor General for the respondent-State and Mr. Amarendra

Sharan, learned senior counsel for the intervenor-Nisar Ahmed

Haji Sayed Bilal, who is the father of one of the deceased.

Point(s) for consideration:-

5)The only point for consideration before this Court is

whether in the present facts and circumstances of the case,

the appellant has made out a case for grant of bail or not?

Rival contentions:-

6)Mr. Harish Salve, learned senior counsel for the appellant

herein contended before this Court that in view of the

supplementary report filed by the NIA, dropping the charges in

respect of the offences under the MCOC Act, it has to be held

that there is no prima facie case against the appellant herein.

Learned senior counsel further contended that earlier, the bail

applications were rejected mainly on the basis of the

confessional statements of the co-accused under the MCOC

9

Act and now, as the charges under the MCOC Act have been

dropped, the confessional statements of the co-accused are

required to be excluded from consideration and in their

absence thereof, there is no incriminating material against the

appellant herein so as to deny him the benefit of bail. Learned

senior counsel further contended that during investigation by

NIA, PW-79, PW-112 and PW-55 have retracted their previous

statements made before the ATS. The fact that the material

witnesses have retracted from their statements while

complaining about the harassment and torture meted out by

the officers of the ATS, clearly indicate that the investigation

carried out by the ATS was not fair but it was tainted. The

statements and confessions have been extracted subjecting

the witness and co-accused to the torture and duress, under

the threats of implicating them falsely. Learned senior counsel

contended that in view of the withdrawal of those statements

and confessions, there remains nothing on record to implicate

the appellant herein with the alleged offence.

7)Learned senior counsel further contended that the

appellant was a Military Intelligence Officer at the relevant

10

time and had participated in the meetings held at various

places like Faridabad, Bhopal etc. in discharge of his duties as

such for collecting intelligence and creating new sources and

the said fact has also been revealed in the Report of Court of

Inquiry (CoI) conducted by the Army Officers against him as

well as in the reply filed by the Ministry of Defence and the

documents filed by the said Ministry in the Special Court.

Learned senior counsel further contended that there was no

sufficient material to show that in the said meetings, any

conspiracy was hatched to commit the bomb blast at

Malegaon.

8)Learned senior counsel vehemently contended the

statement of PW-21 that immediately after the alleged

conspiracy meeting, he found the appellant herein disclosing

the details of the said meeting to his superior officers in

Military Intelligence in order to suggest that no conspirator

will ever divulge the details of the conspiracy to the superior

officers in Military Intelligence. Even the appellant herein also

informed that it was a ‘covert operation’ of Military

Intelligence.

11

9)Learned senior counsel further contended that the Report

of Inquiry (RoI) also reveals that the RDX was planted by the

ATS officer in the house of Sudhakarn Chaturvedi (A-11). The

statements of PW-180 and PW-183 also indicate the same but

the courts below disbelieved the version of NIA in this regard.

10) Further, learned senior counsel strenuously contended

that whether the amended provision of Section 43(D)(5) of the

UAP Act be applied retrospectively to the appellant herein.

The said provision had been amended on 31.12.2008 while the

incident had taken place on 29.09.2008. He further

contended that the High Court was not right in holding that

the right of bail of the accused is a procedural right and

cannot be considered as a substantive right for retrospective

applicability of the provision. Further, the sanction granted

for prosecution of the appellant under Section 45(1) of the UAP

Act was not valid. He further stressed upon the point that the

High Court erred in ignoring the Doctrine of Parity while

granting bail to Pragya Singh Thakur (A-1) wherein the court

has taken into account the changed circumstances in the

charge sheet filed by the NIA but the very same facts have

12

been ignored in the case of the appellant herein. Learned

senior counsel finally submitted that the appellant is in jail

since last about eight years and eight months and the delay is

on account of the prolonged time taken by the investigation

agencies and the appellant herein has a good prima facie case

to succeed for grant of bail before this Court.

11)Learned Additional Solicitor General (ASG) for the

respondent-State strongly controverted the contentions raised

by learned senior counsel for the appellant herein by

submitting that he was the main conspirator and prima facie

there is sufficient material on record to prove his involvement

in the alleged offence. Merely because the charges have been

dropped under the MCOC Act, it does not mean that there is

no material against the appellant herein in respect of other

charges. The NIA has given clean chit to Pragya Singh Thakur

(A-1) and some other accused person but it has not exonerated

the appellant herein from the charges leveled against him

which clearly proves that the NIA has also found sufficient

material to implicate the appellant.

13

12)Learned ASG finally submitted that the conclusions

about involvement of the appellant herein in the offences

alleged against him as drawn by the ATS are supplemented

and supported by the NIA officers in their detailed

investigation. Having regard to the gravity and seriousness of

the offence, which were in the nature of waging war against

the unity and integrity of the Nation, and, that too, by violent

means, the bail application of the appellant could not have

been allowed and it has rightly been rejected by the courts

below and no interference is sought for by this Court.

13)Mr. Amarendra Saran, learned senior counsel for the

intervenor submitted that there are sufficient material and

evidence on record to establish a prima facie case of the

involvement of the appellant herein in the criminal offence and

the report of the Court of Inquiry (CoI) submitted by the

Military authorities cannot be taken into consideration for

deciding the question of grant of bail.

Discussion:-

14)In order to prove the prima facie case against the

appellant, the prosecution has relied upon the transcription of

14

the conversations of the meetings obtained from the laptop of

Swami Amrutanand (A-10), statement of prosecution

witnesses recorded under Sections 161 and 164(5) of the Code

of Criminal Procedure, 1973 (in short ‘the Code’), intercepted

telephonic conversations between the appellant herein and

co-accused persons and lastly the finding of traces of RDX in

the house of co-accused Sudhakar Chaturvedi (A-11). With

regard to the transcription of the conversations of the

meetings, it was urged from the side of the appellant that

there was no such conspiracy hatched between the persons

present in the meeting to commit bomb blasts at Malegaon

and the persons present have expressed their general opinion

about the then prevailing political and social situation. In this

backdrop, it is relevant to note that the appellant herein was a

serving Army Officer and was associated with Military

Intelligence and Interior Terrorism (Insurgency Activities). In

the statement of PW-21, it has been revealed that immediately

after the alleged conspiracy meeting, he found the appellant

herein disclosing the details of the said meeting to his superior

officers in Military Intelligence. Even the appellant herein also

15

informed that it was a ‘covert operation’ of Military Intelligence

and he attended the said meetings to create the counter

intelligence and no conspirator will ever divulge the details of

the conspiracy to the superior officers in Military Intelligence.

Besides this, the documents filed by the Ministry of Defence

and the papers of the Court of Inquiry also substantiate the

claim of the appellant herein. Similarly, intercepted telephonic

conversations between the co-accused and the appellant

herein were supported as part of duty.

15)The NIA started the investigation on the basis of the facts

stated in the FIR and the evidence collected by the ATS,

Mumbai. During investigation, it was found that there were

contradictions with regard to the evidence led in the charge

sheet by the ATS. On the basis of the specific points covered

during the investigation conducted by the NIA, it was

concluded that no offence under the MCOC Act was attracted

and the confessional statements recorded under the provisions

of the said Act by ATS Mumbai were not being relied upon by

the NIA in the charge sheet against the accused persons. In

fact, on evaluation of the evidence against Pragya Singh

16

Thakur (A-1), the evidence on record were not found sufficient

by the NIA to prosecute her as all the witnesses had retracted

from their statements and thus no case was made out against

her.

16)As regards the other parameters to be considered while

deciding the application of bail, like, reasonable apprehension

of the witnesses being tampered with and danger, of-course, of

justice being thwarted by grant of bail, needless to state that

already some of the witnesses have retracted their statements

made before the ATS. A perusal of the statements of various

prosecution witness recorded under Section 164 of the Code

by the NIA, it was revealed that the ATS, Mumbai forced them

to make the statements under the aforesaid Section by

threatening them to falsely implicate them in the case. In

other words, witnesses retracted from their statements

recorded by the ATS, Mumbai at Mumbai. Even during

re-examination of PW-79 recorded under Section 164 of the

Code, he deposed that he did not attend any meeting of

‘Abhinav Bharat’ held at Bhopal and he had never visited

Bhopal until ATS took him to Ram Mandir, Bhopal in the

17

month of May, 2009. The very same statement was again

recorded at Delhi by learned Metropolitan Magistrate, where

he confirmed the same.

17)In view of the above, it would be relevant to quote the

retracted statement of PW-55, mentioned in the charge sheet

filed by the NIA, wherein he stated that he did not retract in

front of the Magistrate while his statement was being recorded

under Section 164 of the Code due to threat and pressure of

the ATS. However, he sent one complaint to Maharashtra

State Human Rights Commission, Mumbai on 05.10.2009

stating that he was forced to give the confessional statement

as dictated to him by the ATS Mumbai that too before transfer

of the investigation of the case to the NIA. He further alleged

that the following lies were dictated to him to depose before

the Magistrate by the ATS which he also incorporated in the

complaint sent to State Human Rights Commission which are

as under:-

(1) That Lt. Col. Prasad Purohit gave him 3 weapons

and ammunition to be kept in his house for a

18

month sometime in 2006. The description of the

weapons was also dictated to him.

(2) That he saw RDX in the house of Lt. Col. Prasad

Purohit in a green sack at Devlali.

(3) That Lt. Col. Purohit confessed to him about

having supplied RDX for Samjhauta Express Blast.

(4) That Lt. Col. Purohit told him in the early 2008

that something was planned to be done soon. He

further told him that an action was planned in

Nashik District in Oct/Nov. 2008.

(5) That he was asked to say that Lt. Col. Purohit

had confessed to him about planning and executing

the Malegaon blast along with his accomplices.

18)Apart from the above, during the investigation by the

NIA, it was revealed that the Army authorities had conducted

a Court of Inquiry (CoI) against the appellant herein. During

scrutiny of the proceedings of the CoI, a different story of

assembling of IED in the House of Sudhakar Chaturvedi (A-11)

came to light. During re-examination of the witnesses by the

NIA who deposed before the Court of Inquiry (CoI), it was

19

revealed that they suspiciously found API Bagde of ATS in the

house of A-11 when A-11 was not present in the house. On

considering the facts narrated by the witnesses, the question

arises here as to why API Bagde visited the house of A-11 in

his absence. It is also pertinent to mention her that the ATS

conducted the search of the house of A-11 on 25.11.2008

wherefrom they had taken the swab of RDX which creates a

doubt on the recovery of RDX keeping in view the examination

of the witnesses. Even in the charge sheet filed by the ATS, it

has been very specifically mentioned that the recovery itself

becomes suspect on the ground that the ATS Mumbai may

have planted the RDX traces to implicate him and the other

accused persons in the case.

19) Further, with regard to the contention of learned senior

counsel as to the non-applicability of Section 43-D(5) of the

UAP Act or want of valid sanction for the prosecution, it was

rightly suggested by the learned ASG that it can be considered

at the time of trial and not at this stage.

20

Conclusion:-

20)In our considered opinion, there are material

contradictions in the charge sheets filed by the ATS Mumbai

and the NIA which are required to be tested at the time of trial

and this Court cannot pick or choose one version over the

other. Liberty of a citizen is undoubtedly important but this is

to balance with the security of the community. A balance is

required to be maintained between the personal liberty of the

accused and the investigational rights of the agency. It must

result in minimum interference with the personal liberty of the

accused and the right of the agency to investigate the case.

21)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

21

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.

22)Before concluding, we must note that though an accused

has a right to make successive applications for grant of bail,

the court entertaining such subsequent bail applications has a

duty to consider the reasons and grounds on which the earlier

bail applications were rejected. In such cases, the court also

has a duty to record the fresh grounds which persuade it to

take a view different from the one taken in the earlier

applications.

22

23)At the stage of granting bail, a detailed examination of

evidence and elaborate documentation of the merits of the

case has not to be undertaken. The grant or refusal to grant

bail lies within the discretion of the court. The grant or denial

is regulated, to a large extent, by the facts and circumstances

of each particular case. But at the same time, right to bail is

not to be denied merely because of the sentiments of the

community against the accused.

24)In view of the foregoing discussion, we are of the

considered opinion that there are variations in the charge

sheets filed by ATS Mumbai and NIA. Further, the appellant

herein, who was at the relevant time was an Intelligence officer

of the Indian Army has refuted the claim of conspiracy on the

ground of Intelligence inputs which he informed to his

superior officers as well and the alleged role of ATS officials in

the planting of RDX at the residence of A-11 clearly indicate

the fresh grounds which persuade the appellant herein to take

a view different from the one taken in the earlier applications.

As mentioned earlier, at the stage of granting bail, a detailed

examination of evidence and elaborate documentation of the

23

merit of the case need not be undertaken. However, keeping

in view the fact that NIA has submitted the supplementary

charge-sheet which is at variance with the charge-sheet filed

by the ATS and that the trial is likely to take a long time and

the appellant has been in prison for about 8 years and 8

months, we are of the considered view that the appellant has

made out a prima facie case for release on bail and we deem it

appropriate to enlarge the appellant herein on bail, subject to

the following conditions:

(i) On his furnishing personal security in the sum of Rs 1

(one) lakh with two solvent sureties, each of the like

amount, to the satisfaction of the trial court.

(ii) The appellant herein shall appear in court as and

when directed by the court.

(iii) The appellant herein shall make himself available for

any further investigation/interrogation by NIA as and

when required.

(iv) The appellant herein shall not directly or indirectly

make any inducement, threat or promise to any person

24

acquainted with the facts of the case so as to dissuade

that person from disclosing such facts to the court or to

the investigating agency or to any police officer.

(v) The appellant herein shall not leave India without the

previous permission of the trial court.

(vi) In case the appellant herein is in possession of a

passport, the same shall be deposited with the trial court

before being released on bail.

(vii) We reserve liberty to the respondents to make an

appropriate application for modification/recalling the

order passed by us, if for any reason, the appellant

herein violates any of the conditions imposed by this

Court.

25)It is further made clear that the grant of bail to the

appellant herein shall be no consideration for grant of bail to

other accused persons in the case and the prayer for bail by

other accused persons (not before us) shall be considered on

its own merits. We also make it clear that the Special Court

shall decide the bail applications, if filed by the other accused

25

persons, uninfluenced by any observation made by this Court.

Further, any observations made by us in this order shall not

come in the way of deciding the trial on merits.

26)In view of the above, we set aside the judgment passed by

the High Court dated 25.04.2017 and grant bail to the

appellant herein on the conditions mentioned above.

Intervention Application is allowed. The appeal is allowed.

...…………….………………………J.

(R.K. AGRAWAL)

.…....…………………………………J.

(ABHAY MANOHAR SAPRE)

NEW DELHI;

AUGUST 21, 2017.