2024 INSC 269 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2595 OF 2023

SHOMA KANTI SEN ...APPELLANT(S)

VS

THE STATE OF MAHARASHTRA & ANR. …RESPONDENT(S)

J U D G M E N T

ANIRUDDHA BOSE, J.

The appellant before us assails the order of a Division Bench

of the High Court of Judicature at Bombay passed on 17.01.2023,

disposing her application for bail with liberty to approach the

Trial Court for filing a fresh application for bail.

2. The appellant was detained on 06.06.2018 in connection

with First Investigation Report (“FIR”) no. 04/2018 dated

08.01.2018 registered with Vishrambaug Police Station, Pune

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alleging commission of offences under Sections 153A, 505 (1b),

117 read with Section 34 of the Indian Penal Code, 1860 (“1860

Code”). The complaints therein related to violence that broke out

at a function organised by Elgar Parishad. Certain acts of violence

had taken place at Shanivarwada, Pune on 31.12.2017 thereafter.

The prosecution’s case is that in the said programme, provocative

speeches were delivered and there were cultural performances

which had the effect of creating enmity between caste groups,

resulting in disruption of communal harmony, violence, and loss

of life. The said FIR was initially lodged against the organisers of

the Elgar Parishad event, which included activists of a cultural

body, known as Kabir Kala Manch. The appellant before us was

not named in that FIR as an accused at that point of time.

3. Subsequently, the scope of investigation was expanded and

Section 120-B of the 1860 Code was added to the list of offences

on 06.03.2018. The State Police, who were investigating the case

at that point of time raided houses of eight accused persons on

17.04.2018, namely (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.

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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.

4. On 02.11.2018, statement of one Kumarasai was recorded.

He had also recorded two other subsequent statements on

23.12.2018 (Annexure P-6 to the appeal-petition) and

24.08.2020. All these statements form a part of the three

chargesheets which have been submitted in connection with the

subject case and we shall refer to the contents thereof later in this

judgment. We would also point out here that on behalf of

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prosecution, four sets of statements have been produced before us

as statements of protected witnesses. But status of two of those

witnesses as ‘protected’ was removed by the Special Court

constituted under the National Investigation Agency Act, 2008

(“2008 Act”) by an order passed on 27.04.2022. The investigation

was transferred to the National Investigation Agency (“NIA”) on

24.01.2020 and the same case was renumbered as RC-

01/2020/NIA/MUM, with NIA police station, Mumbai. The

Special Court held that prior directions to maintain secrecy in

respect of identity of KW2 and KW4 ought to be set aside. The

names of KW2 and KW4 thus stood removed from the list of

protected witnesses. This was done mainly on the ground that

copies of statements of those two witnesses had been supplied to

the defence under Section 207 of the Code of Criminal Procedure,

1973 (“1973 Code”), which transmitted their names and

identities. KW4 is Kumarasai, whose statement we have referred

to earlier in this paragraph.

5. On 15.11.2018, the initial chargesheet was submitted by

the State Police invoking allegations of commission of offences

under Sections 153A, 501(1)(b), 117, 120B, 121, 121A, 124A &

34 of the 1860 Code read with Sections 13, 16, 17, 18, 18B, 20,

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38, 39 & 40 of the 1967 Act. The appellant was implicated in the

said chargesheet as accused no. 4 for having committed offences

under the aforesaid provisions. In column 10 of this chargesheet,

under the heading “Details of accused charge-sheeted (with

absconding accused)” names of Sudhir Prahlad Dhavle, Rona

Jacob Wilson, Surendra Pundlikrao Gadling, Shoma Sen (the

appellant) and Mahesh Sitaram Raut appear as arrested accused

whereas names of five other accused persons have been shown as

“at present underground”. A supplementary chargesheet was also

filed by the State Police on 21.02.2019, broadly under the same

provisions, implicating certain other individuals, Varavara Rao,

Vernon Gonzalves, Arun Ferreira and Sudha Bhardwaj as

accused persons in the same case.

6. After filing of the initial chargesheet, the appellant 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

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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: -

“1. Learned counsel for the applicant states that, the

case is now being investigated by N.I.A. under the

N.I.A. Act. He seeks leave to add N.I.A. as a party

respondent. Learned counsel for the applicant seeks

two weeks time to carry out amendment. Time is

granted.

2. Since the N.I.A. has taken over the investigation,

the matter will have to be placed before the Division

bench. I have taken this view in Criminal Bail

Application No.2024 of 2021 vide order dated

11/06/2021 based on the Hon’ble Supreme Court’s

Judgment in the case of State of Andhra Pradesh,

through Inspector General, National Investigation

Agency, Vs. Mohd. Hussain @ Salim, as reported in

(2014) 1 Supreme Court Cases 258.

3. Hence, the following order is passed:

ORDER

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(i) Leave to amend is granted to add N.I.A. as a party

respondent.

(ii) Amendment shall be carried out within a period of

two weeks from today.

(iii) Office to take steps to place this matter before the

appropriate Division Bench.

(iv) The applicant shall supply second set of this

application.”

8. The Division Bench heard the bail application and by an

order passed on 17.01.2023, which is assailed before us, disposed

of the appellant’s prayer for bail, giving liberty to the appellant to

approach the Trial Court for filing a fresh application for bail.

Prior to the passing of the order which is impugned before us, the

NIA had submitted a second supplementary chargesheet dated

09.10.2020, implicating seven more persons as accused in the

case. They are Anand Teltumbde, Gautam Navlakha, Hany Babu,

Sagar Gorkhe, Ramesh Gaychore, Jyoti Jagtap and Stan Swamy.

It is the case of the prosecution that the second supplementary

chargesheet filed by the NIA contains certain incriminating

materials against the appellant as well. It is primarily on account

of the second supplementary chargesheet being filed, the Division

Bench of the High Court refused to consider the appellant’s

petition for bail on merit. The reasoning for such a course being

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directed by the Division Bench would appear from the following

passage of the impugned order: -

“2. As noted in Order dated 2nd December, 2022, the

investigation of present Crime was subsequently

transferred to the National Investigation Agency (for

short “the NIA”) in the month of January, 2020 i.e.

after passing of the impugned Order. After completion

of further investigation, the NIA has filed

supplementary charge-sheet in the Special Court

(under NIA Act) at Mumbai. The said case arising out

of present crime is now pending for final adjudication

in the Special Court (under NIA Act) at Mumbai.

3. It is to be noted here that, after the NIA filed

supplementary charge-sheet, in view of the

substantive change in circumstance, the Applicant did

not approach the trial Court, at the first instance for

appreciation of evidence by it. This Court therefore

does not have the benefit of assessment of entire

evidence on record by the trial Court. It is therefore

necessary for the Petitioner to approach the trial Court

afresh for seeking bail under Section 439 of Criminal

Procedure Code, so that the trial Court will get an

opportunity to assess entire material available on

record against the Applicant. Even otherwise, in view

of substantive change in circumstance it is necessary

for the Applicant to approach the trial Court by filing a

fresh Application for bail.”

9. Appearing on behalf of NIA, learned Additional Solicitor

General, Mr. Nataraj, took preliminary objection on

maintainability of the present appeal. His counter-affidavit is also

founded on that factor. He stressed on the fact that since the first

Court of bail had no opportunity to examine the fresh set of

accusations emanating from the second supplementary

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chargesheet, no error was committed by the Division Bench in

remanding the matter to the Court of first instance.

10.His argument is that the High Court is an appellate forum

on the question of bail, where the 2008 Act is applicable and thus

ought not to examine, for the first time, a fresh set of accusations

made by the investigating agency. He relied on a judgment of this

Court in the case of State of Haryana -vs- Basti Ram [(2013) 4

SCC 200]. A Coordinate Bench of this Court observed in this

case:-

“27. Normally, we would have gone through the entire

evidence on record and decided whether the acquittal

of Basti Ram should be sustained or not. However, in

the absence of any discussion or analysis of the

evidence by the High Court in the first appeal, we are

of the opinion that a right of appeal available to Basti

Ram would be taken away if we were to consider the

case on its merits without the opinion of the High

Court. Additionally, for a proper appreciation of the

case, it is necessary for us to have the views of the

High Court on record. This is important since the High

Court has reversed a finding of conviction given by the

trial Judge.”

11.This was a case where the respondent-accused was

implicated in offences of sexual assault and kidnapping of a

minor girl along with other related offences and the accused was

convicted by the Trial Court. Conviction of the respondent along

with the co-accused was set aside by a Single Judge of the High

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Court. It was contended by the State before this Court that the

judgment of acquittal was passed by the High Court ignoring the

statement of prosecutrix, made under Section 164 of the 1973

Code, as also her testimony before the trial court. It was in the

context of this argument that the aforesaid judgment was

delivered and observations were made in the passage quoted

above. The same course, in our opinion, would not be mandatory

on the question of considering pre-trial bail plea.

12.So far as the initial and the first supplementary

chargesheets filed by the State Police are concerned, the Court of

first instance had the occasion to go through the same. But the

High Court opined that after transfer of investigation to NIA and

filing of the second supplementary chargesheet, which was also

placed before the High Court, it should be the Special Court itself

which should examine, at the first instance, the content of all the

chargesheets, before considering the prayer of an accused for bail.

In the present case, when the bail application was filed before the

Single Judge of the High Court under Section 439 of the 1973

Code, the second supplementary chargesheet had not been

submitted. Under the provisions of the 1973 Code, the

jurisdiction of the High Court to consider the question of bail is

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coordinate with that of the Sessions Court and it has evolved as a

matter of practice that an accused seeking bail ought to approach

the Sessions Court before approaching the High Court. Thus, at

the point of time when the bail petition was filed by the appellant

before the High Court, there was no apparent jurisdictional

shortcoming in the High Court examining the appellant’s plea for

bail. It was also, in our opinion, the proper course which was

adopted by the High Court exercising jurisdiction under Section

439 of the 1973 Code to refer the matter to a Division Bench to

decide the bail plea in accordance with Section 21(2) of the 2008

Act. This course has been prescribed in the judgement of this

court in the case of State of Andhra Pradesh, through

Inspector General, National Investigation Agency -vs- Mohd.

Hussain alias Salim [(2014) 1 SCC 258], which was relied upon

by the learned Single Judge while placing the bail application

before a Division Bench. The relevant portion of this judgement

passed by a Coordinate Bench of this Court stipulates: -

“27. The order passed by this Court on 2-8-2013

in State of A.P. v. Mohd. Hussain [State of

A.P. v. Mohd. Hussain, (2014) 1 SCC 706] is therefore

clarified as follows:

27.1. Firstly, an appeal from an order of the Special

Court under the NIA Act, refusing or granting bail

shall lie only to a Bench of two Judges of the High

Court.

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27.2. And, secondly as far as Prayer (b) of the peti-

tion for clarification is concerned, it is made clear that

inasmuch as the applicant is being prosecuted for the

offences under the MCOC Act, 1999, as well as the

Unlawful Activities (Prevention) Act, 1967, such of-

fences are triable only by the Special Court, and

therefore application for bail in such matters will have

to be made before the Special Court under the NIA

Act, 2008, and shall not lie before the High Court

either under Section 439 or under Section 482 of the

Code. The application for bail filed by the applicant in

the present case is not maintainable before the High

Court.

27.3. Thus, where the NIA Act applies, the original

application for bail shall lie only before the Special

Court, and appeal against the orders therein shall lie

only to a Bench of two Judges of the High Court.”

13.The factual position which forms the background of the

present appellant’s plea for bail is, however, different from that in

which the aforesaid judgments were delivered. The appellant

before us, at each stage, had applied for bail before the Court

which, at that point of time, had regular jurisdiction to consider

her application. It was because of supervening circumstances the

NIA entered into the picture and then issued the second

supplementary chargesheet. The Division Bench, being an

appellate forum, has the jurisdiction to look into the facts which

may arise subsequent to the order of bail passed by the Court of

regular jurisdiction. The order by which the Single Judge, hearing

the bail application under Section 439 of the 1973 Code, placed

the matter before the Division Bench (in essence, giving the said

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application the form or character of an appeal under Section 21(2)

of the 2008 Act), had not been assailed by any of the parties. We

also do not find any error in such a direction having been issued

by the Single Judge of the High Court exercising jurisdiction

under Section 439 of the 1973 Code. It was the same

investigation which was continued by the NIA, based on the same

FIR. Only the investigating agency had changed. Just because the

second supplementary chargesheet had been issued by the NIA

after disposal of the bail application by the Sessions Court, it was

not the only legal course available to the High Court to remand

the matter to the Special Court for examining the second

supplementary chargesheet at the first instance. As an Appellate

Forum, in the facts of the given case, it was well within the

jurisdiction of the High Court exercising its power under Section

21(2) of the 2008 Act, to examine the second supplementary

chargesheet as well, while sitting in appeal over the order of

rejection of bail by the regular Sessions Court upon considering

the first two chargesheets.

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

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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.

15.Having taken these factors into account, we do not think it

would be in the interest of justice to remand the matter to the

Special Court constituted under the 2008 Act at this stage. We

are taking this view as in our opinion, it would not have been

beyond jurisdiction of the High Court Division Bench, even in

exercise of appellate power under Section 21(2) of the 2008 Act, to

examine the second supplementary chargesheet as well. For these

reasons, we decline to accept the preliminary objection raised by

Mr. Nataraj and shall proceed to consider here, the appellant’s

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plea for bail on merit. Now that we have given leave to the

appellant in her petition for special leave to appeal, the same

appellate jurisdiction which vested in the High Court will vest in

us as well and in exercise of such appellate jurisdiction, we shall

consider the appellant’s prayer for bail, which was not considered

by the High Court on merit.

16.It was also urged by Mr. Nataraj that in the appeal-petition,

the appellant has only asked for setting aside the impugned

judgment and order. No specific prayer for bail has been made.

But in our opinion, the plea for bail in the context of the present

appeal is implicit. The petition which was transferred to the

Division Bench carried prayer of the appellant for being released

on bail and argument advanced by Mr. Grover, learned senior

counsel appearing for the appellant is that the High Court itself

ought to have granted bail to the appellant on the basis of

available materials. Moreover, the appellant in the appeal-petition

has also asked for bail as interim relief. Since the appeal, in

substance, is against the judgment by which prayer for bail was

refused, merely based on the manner of framing of reliefs or

prayers in the subject-petition, the actual relief sought by the

appellant would not stand eclipsed.

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17.Mr. Nataraj had also contended that the NIA must be

permitted to contest the bail plea of the appellant before the first

Court of bail on the basis of materials disclosed in the second

supplementary charge-sheet, because the prosecution would also

be entitled to a right of appeal. His submission is that such right

of appeal would stand lost if the High Court itself had examined

the second supplementary charge-sheet and decided the question

of bail in favour of the appellant-accused. These are cogent

arguments, but we must not lose sight of the fact that we are

concerned here with the question of liberty of a pre-trial detenue,

who is a senior citizen, in custody for almost six years, against

whom charges are yet to be framed. The question of losing right of

an appellate forum would have greater significance in substantive

proceedings but on the question of bail, in a proceeding where the

detenue herself has volunteered to forego an appellate forum by

arguing before us her case for bail, the approach of this Court

would be to address the question on merit, rather than to send it

back to the Court of first instance for examining the materials

available against the appellant.

18.This argument of the prosecution would have had stronger

impact if the last charge-sheet, which the first bail Court could

16

not examine, had disclosed any new or egregious set of

accusations against the appellant, far removed from those

contained in the earlier charge-sheets. We have gone through the

second supplementary chargesheet but do not find disclosure of

any such material. This question shall be examined by us in the

subsequent paragraphs of this judgment.

19.Another point urged by Mr. Nataraj was that the entirety of

incriminating material in the chargesheets, which forms the basis

for implicating the appellant did not form part of petition for

special leave to appeal and to that extent the investigating agency

did not have full opportunity to meet the appellant’s case. But as

would be evident from various paragraphs of this judgment, these

materials were brought on record and both parties had the

opportunity to consider these materials and advance submissions

on that basis. This is not a case where equitable relief is snatched

ex-parte, for instance in case of an ad-interim injunction, by not

bringing to the notice of the Court the entire factual basis of a

given case. In this appeal, both the parties have had sufficient

opportunity to deal with the relevant materials and the appellant

cannot be non-suited on the sole ground of non-disclosure of

such materials.

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20.We shall now test the appellant’s claim for bail on merit.

Having regard to the proviso to Section 43D (5)

1

of 1967 Act, the

1 43-D. Modified application of certain provisions of the Code.

1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act

shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code, and "cognizable case"

as defined in that clause shall be construed accordingly.

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject

to the modification that in sub-section (2),--

(a) the references to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as refer-

ences 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 spe-

cific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hun-

dred and eighty days:

Provided also that if the police officer making the investigation under this Act, requests, for the purposes of in-

vestigation, 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 Govern-

ment.";

(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".

(4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person ac-

cused of having committed an offence punishable under this Act.

(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters

IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been

given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of

the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for be-

lieving that the accusation against such person is prima facie true.

(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code

or any other law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to a person accused

of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illeg-

ally except in very exceptional circumstances and for reasons to be recorded in writing.”

18

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).

21.In the case of Zahoor Ahmad Shah Watali (supra), it has

been, inter-alia, held:-

"23. By virtue of the proviso to sub-section (5), it is the duty of

the Court to be satisfied that there are reasonable grounds for

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believing that the accusation against the accused is prima

facie true or otherwise. Our attention was invited to the de-

cisions of this Court, which has had an occasion to deal with

similar special provisions in TADA and MCOCA. The principle

underlying those decisions may have some bearing while con-

sidering the prayer for bail in relation to the offences under

the 1967 Act as well. Notably, under the special enactments

such as TADA, MCOCA and the Narcotic Drugs and Psycho-

tropic Substances Act, 1985, the Court is required to record its

opinion that there are reasonable grounds for believing that

the accused is “not guilty” of the alleged offence. There is a

degree of difference between the satisfaction to be recorded

by the Court that there are reasonable grounds for believing

that the accused is “not guilty” of such offence and the satis-

faction to be recorded for the purposes of the 1967 Act that

there are reasonable grounds for believing that the accusation

against such person is “prima facie” true. By its very nature,

the expression “prima facie true” would mean that the materi-

als/evidence collated by the investigating agency in reference

to the accusation against the accused concerned in the first

information report, must prevail until contradicted and over-

come or disproved by other evidence, and on the face of it,

shows the complicity of such accused in the commission of the

stated offence. It must be good and sufficient on its face to es-

tablish a given fact or the chain of facts constituting the stated

offence, unless rebutted or contradicted. In one sense, the de-

gree of satisfaction is lighter when the Court has to opine that

the accusation is “prima facie true”, as compared to the opin-

ion of the accused “not guilty” of such offence as required un-

der the other special enactments. In any case, the degree of

satisfaction to be recorded by the Court for opining that there

are reasonable grounds for believing that the accusation

against the accused is prima facie true, is lighter than the de-

gree of satisfaction to be recorded for considering a discharge

application or framing of charges in relation to offences under

the 1967 Act. Nevertheless, we may take guidance from the

exposition in Ranjitsing Brahmajeetsing Sharma v. State of

Maharashtra, [(2005) 5 SCC 294 : 2005 SCC (Cri) 1057],

wherein a three-Judge Bench of this Court was called upon to

consider the scope of power of the Court to grant bail. In

paras 36 to 38, the Court observed thus : (SCC pp. 316-17)

“36. Does this statute require that before a person is

released on bail, the court, albeit prima facie, must

come to the conclusion that he is not guilty of such

offence? Is it necessary for the court to record such a

finding? Would there be any machinery available to

the court to ascertain that once the accused is en-

larged on bail, he would not commit any offence

whatsoever?

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37. Such findings are required to be recorded only for

the purpose of arriving at an objective finding on the

basis of materials on record only for grant of bail and

for no other purpose.

38. We are furthermore of the opinion that the restric-

tions on the power of the court to grant bail should

not be pushed too far. If the court, having regard to

the materials brought on record, is satisfied that in

all probability he may not be ultimately convicted, an

order granting bail may be passed. The satisfaction

of the court as regards his likelihood of not commit-

ting an offence while on bail must be construed to

mean an offence under the Act and not any offence

whatsoever be it a minor or major offence. … What

would further be necessary on the part of the court is

to see the culpability of the accused and his involve-

ment in the commission of an organised crime either

directly or indirectly. The court at the time of consid-

ering the application for grant of bail shall consider

the question from the angle as to whether he was

possessed of the requisite mens rea.”

And again in paras 44 to 48, the Court observed : (SCC pp.

318-20)

“44. The wording of Section 21(4), in our opinion,

does not lead to the conclusion that the court must

arrive at a positive finding that the applicant for bail

has not committed an offence under the Act. If such a

construction is placed, the court intending to grant

bail must arrive at a finding that the applicant has

not committed such an offence. In such an event, it

will be impossible for the prosecution to obtain a

judgment of conviction of the applicant. Such cannot

be the intention of the legislature. Section 21(4)

of MCOCA, therefore, must be construed reasonably. It

must be so construed that the court is able to main-

tain a delicate balance between a judgment of acquit-

tal and conviction and an order granting bail much

before commencement of trial. Similarly, the court will

be required to record a finding as to the possibility of

his committing a crime after grant of bail. However,

such an offence in futuro must be an offence under

the Act and not any other offence. Since it is difficult

to predict the future conduct of an accused, the court

must necessarily consider this aspect of the matter

having regard to the antecedents of the accused, his

propensities and the nature and manner in which he

is alleged to have committed the offence.

45. It is, furthermore, trite that for the purpose of con-

sidering an application for grant of bail, although de-

21

tailed reasons are not necessary to be assigned, the

order granting bail must demonstrate application of

mind at least in serious cases as to why the applic-

ant has been granted or denied the privilege of bail.

46. The duty of the court at this stage is not to weigh

the evidence meticulously but to arrive at a finding

on the basis of broad probabilities. However, while

dealing with a special statute like MCOCA having re-

gard to the provisions contained in sub-section (4) of

Section 21 of the Act, the court may have to probe

into the matter deeper so as to enable it to arrive at a

finding that the materials collected against the ac-

cused during the investigation may not justify a judg-

ment of conviction. The findings recorded by the court

while granting or refusing bail undoubtedly would be

tentative in nature, which may not have any bearing

on the merit of the case and the trial court would,

thus, be free to decide the case on the basis of evid-

ence adduced at the trial, without in any manner be-

ing prejudiced thereby.

47. In Kalyan Chandra Sarkar v. Rajesh Ranjan

[(2004) 7 SCC 528 : 2004 SCC (Cri) 1977] this Court

observed : (SCC pp. 537-38, para 18)

‘18. We agree that a conclusive finding in regard

to the points urged by both the sides is not expec-

ted of the court considering a bail application.

Still one should not forget, as observed by this

Court in Puran v. Rambilas [(2001) 6 SCC 338:

2001 SCC (Cri) 1124] : (SCC p. 344, para 8)

“8. …Giving reasons is different from dis-

cussing merits or demerits. At the stage of

granting bail a detailed examination of

evidence and elaborate documentation of

the merits of the case has not to be under-

taken. … That did not mean that whilst

granting bail some reasons for prima facie

concluding why bail was being granted

did not have to be indicated.”

We respectfully agree with the above dictum of

this Court. We also feel that such expression of

prima facie reasons for granting bail is a require-

ment of law in cases where such orders on bail

application are appealable, more so because of

the fact that the appellate court has every right to

know the basis for granting the bail. Therefore,

we are not in agreement with the argument ad-

dressed by the learned counsel for the accused

that the High Court was not expected even to in-

dicate a prima facie finding on all points urged

22

before it while granting bail, more so in the back-

ground of the facts of this case where on facts it

is established that a large number of witnesses

who were examined after the respondent was en-

larged on bail had turned hostile and there are

complaints made to the court as to the threats ad-

ministered by the respondent or his supporters to

witnesses in the case. In such circumstances, the

court was duty-bound to apply its mind to the al-

legations put forth by the investigating agency

and ought to have given at least a prima facie

finding in regard to these allegations because

they go to the very root of the right of the accused

to seek bail. The non-consideration of these vital

facts as to the allegations of threat or inducement

made to the witnesses by the respondent during

the period he was on bail has vitiated the conclu-

sions arrived at by the High Court while granting

bail to the respondent. The other ground apart

from the ground of incarceration which appealed

to the High Court to grant bail was the fact that a

large number of witnesses are yet to be examined

and there is no likelihood of the trial coming to an

end in the near future. As stated hereinabove,

this ground on the facts of this case is also not

sufficient either individually or coupled with the

period of incarceration to release the respondent

on bail because of the serious allegations of tam-

pering with the witnesses made against the re-

spondent.’

48. In Jayendra Saraswathi

Swamigal v. State of T.N. (2005) 2 SCC 13 : 2005

SCC (Cri) 481] this Court observed [(SCC pp. 21-

22, para 16)]

‘16. … The considerations which normally

weigh with the court in granting bail in non-

bailable offences have been explained by this

Court in State v. Jagjit Singh [(1962) 3 SCR

622 : AIR 1962 SC 253 : (1962) 1 Cri LJ 215]

and Gurcharan Singh v. State (UT of Delhi)

[(1978) 1 SCC 118 : 1978 SCC (Cri) 41] and

basically they are — the nature and serious-

ness of the offence; the character of the evid-

ence; circumstances which are peculiar to the

accused; a reasonable possibility of the pres-

ence of the accused not being secured at the

trial; reasonable apprehension of witnesses

being tampered with; the larger interest of the

public or the State and other similar factors

23

which may be relevant in the facts and cir-

cumstances of the case.’”

22.In the case of Vernon (supra), it was observed:-

“36. In the case of Zahoor Ahmad Shah Watali (supra), it has

been held that the expression “prima facie true” would mean

that the materials/evidence collated by the investigating

agency in reference to the accusation against the accused

concerned in the chargesheet must prevail, unless overcome

or disproved by other evidence, and on the face of it, materi-

als must show complicity of such accused in the commission

of the stated offences. What this ratio contemplates is that on

the face of it, the accusation against the accused ought to pre-

vail. In our opinion, however, it would not satisfy the prima

facie “test” unless there is at least surface-analysis of probat-

ive value of the evidence, at the stage of examining the ques-

tion of granting bail and the quality or probative value satis-

fies the Court of its worth………”

23.We must point out here that Mr. Nataraj has taken a fair

stand in this case and in response to our query on necessity of

detention of the appellant at this stage, for further investigation,

he has submitted that the prosecution at present would not

require custody of the appellant for such purpose. He has

simultaneously emphasised on gravity and seriousness of the

offences alleged against the appellant and submitted that the

question of entitlement of the appellant to be enlarged on bail

would have to be examined in the light of the bail restricting

clause of Section 43D (5) of the 1967 Act and on that basis, he

has contested the appeal. We shall first examine the applicability

of the offences contained in Chapters IV and VI in relation to the

24

materials which have been disclosed before us and then go on to

apply the normal principle of granting bail, only on our

satisfaction that the materials disclosed before us do not establish

reasonable grounds for believing that the accusations against the

appellant under the bail restricting provisions of the 1967 Act are

prima facie true. The substance of allegations against the

appellant are, inter-alia, contained in paragraphs 17.4, 17.5,

17.8, 17.10.1, 17.11, 17.12, 17.15, 17.16 and 17.18 of the

chargesheet dated 15.11.2018 and paragraphs 17.4, 17.5 and

17.16 of the first supplementary chargesheet dated 21.02.2019.

The allegations against the appellant are, inter-alia, contained in

paragraphs 17.24, 17.25, 17.29, 17.32, 17.39, 17.45, 17.55,

17.56, 17.73, 17.74, 17.75 and 17.78 of the second

supplementary chargesheet dated 09.10.2020.

24. It is admitted position that appellant was present at

Shanivarwada within the district of Pune on 31.12.2017 when

the Elgar Parishad event took place. But there is no allegation at

this stage that apart from being present, she had any further

active participation on that date in the programme. For instance,

there is no allegation that she had delivered any provocative

speech. She was also not named in the initial FIR which was

25

registered at Vishrambaug Police Station, Pune on 08.01.2018.

The prosecution’s case is that the appellant is an active member

of CPI (Maoist) and conspired with other accused persons to

violently overthrow democracy and the State. There are also

allegations that she provided party funds and also received party

funds from another accused Mahesh Raut, she was paid a sum of

Rs. five lakhs by two other co-accused persons and made

constant attempts to further terrorist activities of the banned CPI

(Maoist). It is also the prosecution’s case that she has been

encouraging youngsters and recruited them as members in the

banned organization and participated in a broad conspiracy to

organize Elgar Parishad programme. It is further alleged that the

appellant is associated with the Indian Association of Peoples

Lawyer (“IAPL”), Committee for the Protection of Democratic

Rights (“CPDR”) Anuradha Ghandy Memorial Committee

(“AGMC”) and Kabir Kala Manch (“KKM”) which have been

described as frontal organization of the CPI (Maoist) on the

ground that they are instrumental in organizing meetings and

exchange of messages for implementation of aims and policies of

the said banned organization. Her involvement in the controversy

hatched by two other accused and underground members has

26

also been highlighted. As we have already indicated, there was a

search in her residential premises on 06.06.2018. It is the

prosecution’s case that materials recovered from her, as also other

accused persons, revealed her participation in the meetings and

conferences of Revolutionary Democratic Front (“RDF”), which

again has been alleged to be a frontal organization to spread the

propaganda of the banned CPI (Maoist). The presence of the

appellant in the National Conference of RDF conducted in

Hyderabad is sought to be demonstrated through the first

supplementary chargesheet.

25.In the second supplementary chargesheet, allegations

against her are contained in the paragraphs which we have

already referred to. Here also, the video of the RDF Conference

held on 22-23.04.2012 has been highlighted. It is also indicated

that she took active part in the Elgar Parishad function. In this

chargesheet, her conduct and coordination with other accused

persons has been sought to be demonstrated, which include

Anand Teltumbadde, Gautam Navlakha, Hany Babu, Jyoti Jagtap

and Stan Swamy (since deceased). It is also pointed out that she

was in close connection with the other members of CPI (Maoist)

through e-mail and mobile phones. But we do not find these

27

allegations to reveal involvement of the appellant in any

outrageously offensive act or activities having characters

altogether different from those contained in the two earlier

chargesheets. In this chargesheet, only her interaction and

connection with other accused persons has been revealed and

forms part of the same chain of accusations.

26.In its counter-affidavit, the NIA, being the contesting

respondent before us, has primarily taken the stand confined to

its preliminary objections on maintainability of this appeal, which

we have already noted. But in course of hearing before us, we

were addressed on merit of the appeal on the question of

entitlement of the appellant to be released on bail, having regard

to the proviso of Section 43D(5) of 1967 Act. The materials which

form part of the three chargesheets, were brought on record

before us by the appellant through two additional affidavits. Apart

from these of these of the appellant, detailed written submission

has been filed by Mr. Nataraj, which contains a series of

documents found to be incriminating by the prosecution along

with witness statements implicating the appellant.

28

27. So far as the appellant is concerned, the prosecution has

emphasised on the following list of materials forming part of this

appeal:-

(i)A Letter dated 08.06.2017 from one “Comrade M”

addressed to “Comrade Surendra”, which carries reference to the

appellant to the limited extent that the party leadership has sent

instructions to “Comrade Shomasen” for strengthening CPDR and

Radical Student’s Union in Nagpur, Chandrapur and Gondia

region. This letter also records that necessary funds have been

sent, but no specific person is named as the recipient of such

funds.

(ii) Letter dated 23.12.2017 from one “R” addressed to

“Comrade Prakash” which relates to constituting a fact-finding

team to gauge the truth about fake encounters in Gadchiroli and

it has been indicated that letter that “Shoma” will speak to the

friends, presumably of the author and addressee of the letter, in

Nagpur who might join the team.

(iii) Next is a letter dated 02.01.2018 from one “Com. M” to

“Comrade Rona” and the offending part of this letter, so far as the

appellant is concerned, is to the effect that “Com. Shoma” and

“Com. Surendra” were authorised to provide funds for the future.

29

(iv) Next document bears the character of a minutes of a

meeting dated 02.01.2008, which marks the presence of

“Shomasen” as a “leading CPDR member”, along with certain

other accused individuals.

(v) Thereafter, an undated account statement is relied on by the

prosecution, which mentions “Shoma” as recipient of “1L”

(presumably Rs. one lakh) from “Surendra” who is the accused

no. 3 in the present case.

(vi) The prosecution has relied on another letter dated

25.09.2017, written by “Com. Prakash” addressed to “Comrade

Surendra” where the author asks the addressee to coordinate

with “shomasen” and ensure that all pgp files are securely wiped

out from all the computers.

(vii) Then there is another letter dated 05.11.2017 purported to

have been written by “Comrade Surendra” and addressed to

“Comrade Prakash” wherein the author informs the addressee

that the information from the party has been communicated to

“Soma” and she has destroyed all the data on her computer in

addition to all the APT files sent by the party, old and new letters

and the party’s resolutions etc.

30

(viii) The last set of documents includes the panchnama of the

search conducted at the house of the appellant, along with the

Forensic Science Laboratory (‘FSL”) Report containing the

analysis of the materials seized from the appellant. These

documents have been cited by Mr. Nataraj to corroborate the

allegations of destruction of evidence at the instance of the co-

accused persons. The FSL report reveals that deleted audio and

video files were retrieved from hard disk and also mentions that

uninstalled softwares have been recovered, but no substantive

content of the deleted materials has been placed in the

chargesheets. The material placed before us only indicates that

the process of deletion had taken place.

It appears that all the letters and other materials mentioned in

the above list have been purported to have been recovered from

the electronic devices of co-accused Rona Wilson.

28.The next set of evidences to which our attention has been

drawn by Mr. Nataraj are four witness statements, two of whom

were originally given the status of protected witnesses. We have

referred to their present status earlier in this judgment. The

accusations made by the four witnesses in their respective

statements placed before us are as follows:-

31

(i) The first protected witness (KW1) statement carries

reference to Shoma Sen as having addressed the delegates of the

conference of RDF held in April 2012. The relevant part of the

said recorded statement reads:-

“………Shoma Sen said that we have to understand the es -

sence of the Maoist slogan 'women hold up half the sky'. To

solve the problems women in our country, as well as in other

countries, the struggle for New Democratic Revolution is the

only way forward. Simply she was advocating women to join

CPI Maoist to solve their issues……....”

(ii) The statement of KW-2 recorded by the NIA under Section

161 of the 1973 Code on 10.08.2020 reveals alleged presence of

the appellant in the office of a co-accused person i.e. Surendra

Gadling, when KW-2 purported to have joined the CPI (Maoist) at

the instance of Surendra.

(iii)A redacted statement of KW-3, who is a protected witness,

has been produced by the NIA in its written submissions. This

witness, on being asked about senior Naxal members of CPI

(Maoist), stated that he first met the appellant in 2007-08, during

the classes of communist ideology, revolutionary movement, party

working etc. in Nagpur, which were attended by some other

individuals. The same witness goes on implicate the appellant in

certain message channels working to exchange messages

32

regarding urban work of CPI (Maoist). In this regard, he has stated

that:-

“……..During year 2017, there were 3-4 message channels

were working to exchange message between Deepak and

Angela regarding urban work of CPI (Maoist) viz (i) Deepak

-Nandu (Myself)- Kalyan Hirekhan-Gadling-Angela; for

legal work (ii) Deepak-Nandu (Myself)-Kalyan Hirekhan-

Angela Sontakke at Shoma Sen's house for meeting with

Deepak in Nagpur (iii) Deepak-Nandu (Myself)- Arif Shaikh

(WCL worker and Journalist)-Vipalav Teltumbde (Nephew

of Deepak Teltumbde)-Angela; this was the second option

for meeting of Deepak & Angela (iv) Deepak-Nandu (My -

self)-Arif Shaikh-NT Maske- Angela Sontakke; alternative

meeting channel……...”

This statement, however, does not prima facie show any direct

involvement of the appellant in the offending acts with which she

has been charged vis-à-vis the bail restricting provisions of the

1967 Act.

(iv) From the three statements of Kumarasai who was originally

identified as “KW-4”, there are only two purported incriminating

references to the appellant, in the second and the third ones,

recorded on 23.12.2018 and 24.08.2020 respectively. In the

former statement, which was recorded by the State Police, he

stated that appellant was working along with an intellectual

group for solving problems of women and students. In the latter

statement, recorded by the NIA, he stated that the appellant was

an urban Naxalite working with CPI (Maoist). The name of the

33

appellant, however, does not figure in his first statement recorded

by the State Police on 02.11.2018.

29.In the light of these materials we shall have to examine the

strength of prosecution’s case to implicate the appellant in the

offences specified under Sections 16, 17, 18, 18B, 20, 38, 39 and

40 of the 1967 Act. There is also allegation against her for

commission of offence under Section 13 of the same statute, but

that offence does not come under the purview of the bail

restricting provision of Section 43D (5) of the 1967 Act and we

shall deal with that accusation in the succeeding paragraphs of

this judgment. The offences under Chapter IV of the 1967 Act

with which the appellant has been charged with by the

prosecuting agency, mainly stem from commission of a terrorist

act or any act in connection therewith. Section 15 of the 1967 Act

stipulates: -

“15. Terrorist act.— (1) Whoever does any act with intent to

threaten or likely to threaten the unity, integrity, security, eco-

nomic security, or sovereignty of India or with intent to strike

terror or likely to strike terror in the people or any section of

the people in India or in any foreign country,—

(a) by using bombs, dynamite or other explosive sub -

stances or inflammable substances or firearms or other

lethal weapons or poisonous or noxious gases or other

chemicals or by any other substances (whether biological

radioactive, nuclear or otherwise) of a hazardous nature or

by any other means of whatever nature to cause or likely

to cause—

(i) death of, or injuries to, any person or persons; or

34

(ii) loss of, or damage to, or destruction of, property; or

(iii) disruption of any supplies or services essential to the

life of the community in India or in any foreign country;

or

(iii-a) damage to, the monetary stability of India by way

of production or smuggling or circulation of high quality

counterfeit Indian paper currency, coin or of any other

material; or

(iv) damage or destruction of any property in India or in

a foreign country used or intended to be used for the de-

fence of India or in connection with any other purposes

of the Government of India, any State Government or

any of their agencies; or

(b) overawes by means of criminal force or the show of

criminal force or attempts to do so or causes death of any

public functionary or attempts to cause death of any public

functionary; or

(c) detains, kidnaps or abducts any person and threatens

to kill or injure such person or does any other act in order

to compel the Government of India, any State Government

or the Government of a foreign country or an international

or inter-governmental organisation or any other person to

do or abstain from doing any act; or commits a terrorist act.

Explanation.—For the purpose of this sub-section,—

(a) “public functionary” means the constitutional authorit-

ies or any other functionary notified in the Official Gazette

by the Central Government as public functionary;

(b) “high quality counterfeit Indian currency” means the

counterfeit currency as may be declared after examination

by an authorised or notified forensic authority that such

currency imitates or compromises with the key security fea-

tures as specified in the Third Schedule.

(2) The terrorist act includes an act which constitutes an of-

fence within the scope of, and as defined in any of the treat-

ies specified in the Second Schedule.”

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

35

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 16

2

of the

1967 Act.

31.On the allegations of raising funds for a terrorist act

forming part of charges under Section 17 of the 1967

3

Act, most

of the materials have emanated from recovery of documents from

devices of third parties and at this stage, on the strength of the

materials produced before us, the prosecution has not been able

to corroborate or even raise a hint of corroboration of the

allegation that the appellant has funded any terrorist act or has

received any money for that purpose. What we can infer on the

2 16. Punishment for terrorist act .—

(1) Whoever commits a terrorist act shall,—

(a) if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and

shall also be liable to fine;

(b) in any other case, be punishable with imprisonment for a term which shall not be less than five years but

which may extend to imprisonment for life, and shall also be liable to fine.

3 17. Punishment for raising funds for terrorist act.—Whoever, in India or in a foreign country, directly or indirectly,

raises or provides funds or collects funds, whether from a legitimate or illegitimate source, from any person or persons or

attempts to provide to, or raises or collects funds for any person or persons, knowing that such funds are likely to be used,

in full or in part by such person or persons or by a terrorist organisation or by a terrorist gang or by an individual terrorist

to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such act, shall

be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment

for life, and shall also be liable to fine.

Explanation.—For the purpose of this section,—

(a) participating, organising or directing in any of the acts stated therein shall constitute an offence;

(b) raising funds shall include raising or collecting or providing funds through production or smuggling or circula-

tion of high quality counterfeit Indian currency; and

(c) raising or collecting or providing funds, in any manner for the benefit of, or, to an individual terrorist, terrorist

gang or terrorist organisation for the purpose not specifically covered under Section 15 shall also be construed as an

offence.

37

basis of the materials produced before us, are mere third-party

allegations that money has been directed to be sent to her. None

of the materials reveal receipt of any funds by her or her direct

role in raising or collecting funds. We are conscious of the fact

that in course of trial, the prosecution will have the opportunity

to bring more detailed evidence in that regard, but here we are

only examining whether the offences under Part IV & VI of the

1967 Act, alleged to have been committed by the appellant, are

prima facie true or not.

32.As regards the allegation against the appellant for

committing an offence under Section 18

4

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.

4 18. Punishment for conspiracy, etc.—Whoever conspires or attempts to commit, or advocates, abets, advises or incites,

directs or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist

act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to im-

prisonment for life, and shall also be liable to fine.

38

33. KW-2 has found her to be present in the office of another co-

accused Surendra, when he was being convinced by Surendra to

join CPI (Maoist), but her mere presence on the spot, by itself,

would not constitute an offence of recruiting any person or

persons for a terrorist act, as specified in Section 18 thereof. As

regards the statement of KW-3, he claims to have met the

appellant in 2007-08 during her lectures on communist ideology

and party-functioning of CPI (Maoist) at Nagpur. At that point of

time, CPI (Maoist) had not been included in the First Schedule of

the 1967 Act enumerating terrorist organisations. It came to be

banned on 22.06.2009, as we have already specified. Kumarasai,

i.e. KW-4 in his third statement recorded on 24.08.2020 has only

stated she is an urban Naxal working for CPI (Maoist). On this

thin thread, we cannot apply the rigors of Section 43D (5) of the

1967 Act against her. Apart from that, there is no evidence that

she was a member of CPI (Maoist). There are no specific materials

or statements produced by the prosecution which attribute acts of

recruitment in banned organization by the appellant. Thus, at

this stage, we cannot form an opinion that the accusation against

her under Section 18-B

5

of the 1967 Act is prima facie true.

5 18-B. Punishment for recruiting of any person or persons for terrorist act. —Whoever recruits or causes to be

recruited any person or persons for commission of a terrorist act shall be punishable with imprisonment for a term which

shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

39

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 20

6

of the 1967 Act

can be made applicable against the appellant at this stage of the

proceeding based on the available materials.

35. The next set of allegations against her to bring her case

within the bail restricting provisions relates to offences specified

under Chapter VI of 1967 Act. This set of allegations relates to

being associated with a terrorist organization. We have already

6 20. Punishment for being member of terrorist gang or organisation. —Any person who is a member of a terrorist

gang or a terrorist organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which

may extend to imprisonment for life, and shall also be liable to fine.

40

given our finding on such allegations and in our prima facie

opinion, the allegations of the prosecution that the appellant is a

member of a terrorist organisation or that she associates herself

or professes to associate herself with a terrorist organization are

not true, and at this stage, she cannot be implicated in the

offence under Sections 38

7

of 1967 Act. Mere meeting of accused

individuals or being connected with them through any medium

cannot implicate one in Chapter VI offences under of the 1967

Act, in the absence of any further evidence of being associated

with a terrorist organisation. Such association or connection

must be in relation to furtherance of terrorist act. It has been held

by this Court in the case of Vernon (supra):-

“32. “Terrorist act” as defined under Section 2(k) of the

1967 Act carries the meaning assigned to it in Section 15.

This Section also stipulates that the expressions “terror-

ism” and “terrorist” shall be construed accordingly. This

implies construction of these two expressions in the same

way as has been done in Section 15.

“terrorist organisation” has been independently defined in

Section 2(m) to mean an organisation listed in the First

Schedule or an organisation operating under the same

name as an organisation so listed. But so far as the word

7 38. Offence relating to membership of a terrorist organisation.—

(1) A person, who associates himself, or professes to be associated, with a terrorist organisation with intention to

further its activities, commits an offence relating to membership of a terrorist organisation:

Provided that this sub-section shall not apply where the person charged is able to prove—

(a) that the organisation was not declared as a terrorist organisation at the time when he became a member or

began to profess to be a member; and

(b) that he has not taken part in the activities of the organisation at any time during its inclusion in the First

Schedule as a terrorist organisation.

(2) A person, who commits the offence relating to membership of a terrorist organisation under sub-section (1),

shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both.

41

“terrorist” is concerned, in this Section also, the interpreta-

tion thereof would be relatable to the same expression as

used in Section 15. It is one of the basic rules of statutory

construction that an expression used in different parts of a

statute shall ordinarily convey the same meaning – unless

contrary intention appears from different parts of the same

enactment itself. We do not find any such contrary inten-

tion in the 1967 Act.

33. Section 38 of the 1967 Act carries the heading or title

“offence relating to membership of a terrorist organisation”.

As we have already observed, a terrorist act would have to

be construed having regard to the meaning assigned to it

in Section 15 thereof. We have given our interpretation to

this provision earlier. “terrorist organisation” [as employed

in Section 2(m)], in our opinion is not a mere nomenclature

and this expression would mean an organisation that car-

ries on or indulges in terrorist acts, as defined in said Sec-

tion 15. The term terrorism, in view of the provisions of

Section 2(k) of the said Act, ought to be interpreted in tan-

dem with what is meant by ‘terrorist Act’ in Section 15

thereof.

34. In this context, to bring the appellants within the fold of

Section 38 of the 1967 Act, the prosecution ought to have

prima facie establish their association with intention to fur-

ther the said organisation’s terrorist activities. It is only

when such intention to further the terrorist activities is es-

tablished prima facie, appellants could be brought within

the fold of the offence relating to membership of a terrorist

organisation. To bring within the scope of Section 38 of the

1967 Act, it would not be sufficient to demonstrate that one

is an associate or someone who professes to be associated

with a terrorist organisation. But there must be intention to

further the activities of such organisation on the part of the

person implicated under such provision. But the same line

of reasoning in respect of membership of a terrorist organ-

isation under Section 20, ought to apply in respect of an al-

leged offender implicated in Section 38 of the 1967 Act.

There must be evidence of there being intention to be in-

volved in a terrorist act. So far as the appellants are con-

cerned, at this stage there is no such evidence before us on

which we can rely.”

We, further, do not think the undated account statement has

sufficient probative value at this stage to prima facie sustain a

case against her and implicate her for offences relating to the

42

provision of support or raising of funds for a terrorist

organisation, specified under Section 39

8

and 40

9

of 1967 Act.

Evidence of her involvement in any fund-raising activities for the

CPI (Maoist) or her support to the said organisation has not

transpired through any reliable evidence before us at this stage.

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

8 39. Offence relating to support given to a terrorist organisation. —

(1) A person commits the offence relating to support given for a terrorist organisation,—

(a) who, with intention to further the activity of a terrorist organisation,—

(i) invites support for the terrorist organisation, and

(ii) the support is not or is not restricted to provide money or other property within the meaning of Sec-

tion 40; or

(b) who, with intention to further the activity of a terrorist organisation, arranges, manages or assists in arran-

ging or managing a meeting which, he knows, is—

(i) to support the terrorist organisation, or

(ii) to further the activity of the terrorist organisation, or

(iii) to be addressed by a person who associates or professes to be associated with the terrorist organisa-

tion; or

(c) who, with intention to further the activity of a terrorist organisation, addresses a meeting for the purpose of

encouraging support for the terrorist organisation or to further its activity.

(2) A person, who commits the offence relating to support given to a terrorist organisation under sub-section (1)

shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both.

9 40. Offence of raising fund for a terrorist organisation.—

(1) A person commits the offence of raising fund for a terrorist organisation, who, with intention to further the

activity of a terrorist organisation,—

(a) invites another person to provide money or other property, and intends that it should be used, or has reason-

able cause to suspect that it might be used, for the purposes of terrorism; or

(b) receives money or other property, and intends that it should be used, or has reasonable cause to suspect that

it might be used, for the purposes of terrorism; or

(c) provides money or other property, and knows, or has reasonable cause to suspect, that it would or might be

used for the purposes of terrorism.

Explanation.—For the purposes of this sub-section, a reference to provide money or other property includes—

(a) of its being given, lent or otherwise made available, whether or not for consideration; or

(b) raising, collecting or providing funds through production or smuggling or circulation of high quality counter-

feit Indian currency.

(2) A person, who commits the offence of raising fund for a terrorist organisation under sub-section (1), shall be

punishable with imprisonment for a term not exceeding fourteen years, or with fine, or with both.

43

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.

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 ap-

pear compelling at first glance, it lacks depth and 22 sub-

stance. 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 groun-

ded 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

44

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 respond-

ent-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 avail-

able 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 ap-

pellant 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 in-

stant case cannot be used as a ground to grant bail.

Hence, the aforesaid argument on the behalf the appellant

cannot be accepted.”

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

45

ground to enlarge an accused on bail in spite of the bail-

restricting provision of Section 43D (5) of the 1967 Act. Pre-

conviction detention is necessary to collect evidence (at the

investigation stage), to maintain purity in the course of trial and

also to prevent an accused from being fugitive from justice. Such

detention is also necessary to prevent further commission of

offence by the same accused. Depending on gravity and

seriousness of the offence alleged to have been committed by an

accused, detention before conclusion of trial at the investigation

and post-chargesheet stage has the sanction of law broadly on

these reasonings. But any form of deprival of liberty results in

breach of Article 21 of the Constitution of India and must be

justified on the ground of being reasonable, following a just and

fair procedure and such deprival must be proportionate in the

facts of a given case. These would be the overarching principles

which the law Courts would have to apply while testing

prosecution’s plea of pre-trial detention, both at investigation and

post-chargesheet stage.

39.As regards second part of Mr. Nataraj’s argument which we

have noted in the preceding paragraph, we accept it with a

qualification. The reasoning in Najeeb’s (supra) case would also

46

have to be examined, if it is the Constitutional Court which is

examining prosecution’s plea for retaining in custody an accused

charged with bail-restricting offences. He cited the case of

Gurwinder Singh (supra) in which the judgement of K. A. Najeeb

(supra) was distinguished on facts and a judgment of the High

Court rejecting the prayer for bail of the appellant was upheld.

But this was a judgment in the given facts of that case and did

not dislocate the axis of reasoning on constitutional ground

enunciated in the case of Najeeb (supra). On behalf of the

prosecution, another order of a Coordinate Bench passed on

18.01.2024, in the case of Mazhar Khan -vs- N.I.A. New Delhi

[Special Leave Petition (Crl) No. 14091 of 2023] was cited. In this

order, the petitioner’s prayer for overturning a bail-rejection order

of the High Court under similar provisions of the 1967 Act was

rejected by the Coordinate Bench applying the ratio of the case of

Watali (supra) judgment and also considering the case of Vernon

(supra). We have proceeded in this judgment accepting the

restrictive provisions to be valid and applicable and then dealt

with the individual allegations in terms of the proviso to Section

43D (5) of the 1967 Act. Thus, the prosecution’s case, so far as

47

the appellant is concerned, does not gain any premium from the

reasoning forming the basis of the case of Mazhar Khan (supra).

40.Two authorities have 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.

41.Once we find that Section 43D (5) of the 1967 Act would

not be applicable in the case of the appellant, we shall have to

examine the case of the appellant in relation to accusation

against her under Section 13 of the 1967 Act and also other

offences under the provisions of the 1860 Code, which we have

narrated earlier. We have already indicated that she is a lady of

advanced age, suffering from various ailments. The ailments by

themselves may not be serious enough for granting bail on

48

medical ground. But taking cognizance of the composite effect of

delay in framing charge, period of detention undergone by her, the

nature of allegations against her vis-à-vis the materials available

before this Court at this stage in addition to her age and medical

condition, we do not think she ought to be denied the privilege of

being enlarged on bail pending further process subsequent to

issue of chargesheets against her in the subject-case.

42. We repeat here that our observations as regards the nature of

allegations against her are only prima facie views and the future

course of her prosecution would be dependent upon framing of

charge and if charges are framed, the nature of evidence the

prosecution can adduce against her in trial as also her own

defence. With these observations, we set aside the impugned

judgment and direct that the appellant be released on bail on

such conditions the Special Court may consider fit and proper

but the conditions shall include the following:-

(a)The appellant shall not leave the State of Maharashtra

without leave of the Special Court.

(b)The appellant shall surrender her passport, if she possesses

one, with the Special Court, during the period she remains

enlarged on bail.

49

(c)The appellant shall inform the Investigating Officer of the NIA

the address where she shall reside during the period she re-

mains enlarged on bail.

(d)The appellant shall use only one mobile number, during the

time she remains on bail, and shall inform her mobile num-

ber to the Investigating Officer of the NIA.

(e)The appellant shall also ensure that her mobile phone re-

mains active and charged round the clock so that she re -

mains constantly accessible throughout the period she re-

mains enlarged on bail.

(f)During this period, i.e. the period during which she remains

on bail, the appellant shall keep the location status (GPS) of

her mobile phone active, twenty-four hours a day, and her

phone shall be paired with that of the Investigating Officer of

the NIA to enable him, at any given time, to identify the

appellants’ exact location.

(g)The appellant, while on bail, shall report to the Station House

Officer of the Police Station within whose jurisdiction she

shall reside, once every fortnight.

43.In the event there is breach of any of these conditions or

any other condition that may be imposed by the Special Court

50

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.

44.The appeal stands allowed in the above terms and Criminal

Miscellaneous Petition No.166531 of 2023 shall also stand

disposed of.

45. Pending application(s), if any, shall stand disposed of.

………................................J.

(ANIRUDDHA BOSE)

.……..................................J.

(AUGUSTINE GEORGE MASIH)

NEW DELHI

April 5

th

, 2024

51

ITEM NO.1501 COURT NO.5 SECTION II-A

(For Judgment)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No. 2595/2023

SHOMA KANTI SEN Appellant(s)

VERSUS

THE STATE OF MAHARASHTRA & ANR. Respondent(s)

(IA No. 166531/2023 - INTERIM BAIL)

Date : 05-04-2024 This matter was called on for pronouncement of

judgment today.

For Appellant(s) Mr. Anand Grover, Sr. Adv.

Mr. Paras Nath Singh, Adv.

Ms. Nupur Kumar, AOR

Mr. Rohin Bhatt, Adv.

For Respondent(s) Mr. Aniruddha Joshi, Adv.

Mr. Siddharth Dharmadhikari, Adv.

Mr. Aaditya Aniruddha Pande, AOR

Mr. Bharat Bagla, Adv.

Mr. Sourav Singh, Adv.

Mr. Aditya Krishna, Adv.

Mrs. Preet S. Phanse, Adv.

Mr. Omkar Deshpande, Adv.

Mr. Aadarsh Dubey, Adv.

Mr. K. M. Nataraj, ASG

Mr. Sharath Nambiar, Adv.

Mr. Kanu Agarwal, Adv.

Mr. Annam Venkatesh, Adv.

Mr. Siddharth Dharmadhikari, Adv.

Mr. Chitransh Sharma, Adv.

Ms. Indra Bhakar, Adv.

Mr. Vinayak Sharma, Adv.

Mr. Vatsal Joshi, Adv.

Mr. Anuj Udupa, Adv.

Mr. Yogya Rajpurohit, Adv.

Satwika Thakur, Adv.

Mr. Shubham Mishra, Adv.

Mr. Siddhant Kohli, Adv.

Mr. Anirudh Bhatt, Adv.

Mr. Arvind Kumar Sharma, AOR

52

Hon’ble Mr. Justice Aniruddha Bose pronounced

the judgment of the Bench comprising His Lordship

and Hon’ble Mr. Justice Augustine George Masih.

The appeal stands allowed; Criminal

Miscellaneous Petition No. 166531 of 2023 shall

stand disposed of and the appellant is directed to

be released on bail in terms of the signed

reportable judgment. The operative portion of the

signed reportable judgment held, inter alia, as

under:-

“……………..With these observations, we set

aside the impugned judgment and direct

that the appellant be released on bail on

such conditions the Special Court may

consider fit and proper but the conditions

shall include the following:-

(h)The appellant shall not leave the

State of Maharashtra without leave of

the Special Court.

(i)The appellant shall surrender her

passport, if she possesses one, with

the Special Court, during the period

she remains enlarged on bail.

(j)The appellant shall inform the Inves -

tigating Officer of the NIA the ad -

dress where she shall reside during

the period she remains enlarged on

bail.

(k)The appellant shall use only one mo -

bile number, during the time she re -

mains on bail, and shall inform her

mobile number to the Investigating Of -

ficer of the NIA.

(l)The appellant shall also ensure that

her mobile phone remains active and

charged round the clock so that she

53

remains constantly accessible through -

out the period she remains enlarged on

bail.

(m)During this period, i.e. the period

during which she remains on bail, the

appellant shall keep the location sta -

tus (GPS) of her mobile phone active,

twenty-four hours a day, and her phone

shall be paired with that of the In -

vestigating Officer of the NIA to en -

able him, at any given time, to iden -

tify the appellants’ exact location.

(n)The appellant, while on bail, shall

report to the Station House Officer

of the Police Station within whose ju -

risdiction she shall reside, once ev -

ery fortnight.

43. In the event there is breach of any

of these conditions or any other condition

that may be imposed by the Special Court

independently, it would be open to the

prosecution to seek cancellation of bail

granted to the appellant before the

Special Court only, without any further

reference to this Court.”

Pending application(s), if any, shall stand

disposed of.

(SNEHA DAS) (VIDYA NEGI)

SENIOR PERSONAL ASSISTANT ASSISTANT REGISTRAR

(Signed reportable judgment is placed on the file)

54