As per case facts, the appellant, a veterinary doctor, became offended when a shop owner (deceased) posted a message supporting a controversial comment in a WhatsApp group. The appellant then ...
Manoj 4-APEAL-1144-2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1144 OF 2024
Yusuf Khan s/o. Bahadur Khan
Age-46 years, Occ-Veterinary Doctor,
R/a Opposite Wahed Khan D.S. College,
Bilal Colony, Amravati. …. Appellant
(Org. Accused No.6)
V/s.
1) The State of Maharashtra
2) The National Investigation Agency
(Through its Ld. Spl. Public Prosecutor
for NIA, Mumbai) …. Respondents
_______________________________
Dr. Yug Mohit Chaudhry a/w. Mr. Sharif Shaikh, Ms. Afrin Khan,
Mr. Muzammil Shaikh, Mr. Ejaz Shaikh, Mr. Anush Shetty, Ms. Muskan
Shaikh, Adv. Benazir Khan i/b. Adv. Mateen Shaikh for the Appellant.
Smt. Madhavi H. Mhatre, APP for the Respondent No.1 – State.
Mr. Anil C. Singh, The Additional Solicitor General of India a/w.
Mr. Chintan Shah, Mr. Aditya Thakkar, Mr. Sandeep Sadawarte,
Adv. Prasanna Bhangale, Mr. Krishnakand Deshmukh for the Respondent
No.2– NIA.
Mr. Manish Prabhune, DYSP, NIA, Mumbai, present.
Mr. Akhilesh Singh, P.I., NIA, Mumbai, present.
_______________________________
CORAM: A.S. GADKARI AND
SHYAM C. CHANDAK, JJ.
RESERVED ON : 08
th
JANUARY, 2026
PRONOUNCED ON : 20
th
JANUARY, 2026
JUDGMENT : [PER SHYAM C. CHANDAK, J.] :-
1) Present Appeal is directed against the impugned Order dated
12.07.2023, passed below Exh.12, in Special Case No.1493 of 2022, by the
learned Special Judge, City Civil and Sessions Court, Greater Mumbai,
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WAKLE
MANOJ
JANARDHAN
Digitally
signed by
WAKLE
MANOJ
JANARDHAN
Date:
2026.01.20
16:25:24
+0530
Manoj 4-APEAL-1144-2024
thereby, the said Application (Exh.12) filed by the Appellant/Original
Accused No.6 for grant of bail, was rejected. Said case arises out of RC
No.02/2022/NIA/MUM, under Sections 109, 120B, 302, 153-A, 201 & 505
of the Indian Penal Code (“IPC”) and Sections 16, 18 & 20 of the Unlawful
Activities (Prevention) Act, 1967 (“UAPA”).
The Respondent-NIA has filed an Affidavit-in Reply and
opposed the Appeal.
2) Heard Dr. Chaudhry, the learned counsel for the Appellant,
Ms. Mhatre, the learned APP for the Respondent No.1-State and Mr. Singh,
the Additional Solicitor General of India for the Respondent No.2-NIA.
Perused the record.
3) The prosecution case is that, on 26.05.2022, the ex-
spokesperson of a political party named “BJP”, made a controversial
comment in a TV debate. Her said statement went viral on social media,
which caused outrage in the Muslim community at Amravati. Therefore, on
08.06.2022 Accused Nos.7, 9 and others went to Nagpuri Gate Police
Station at Amravati and requested registration of an FIR on account of that
comment. The police refused to register such an FIR as number of FIRs
were already registered in that regard at other Police Stations. As alleged,
on 09.06.2022, a special meeting of the Muslim community was called by
A-7 and A-9, through a WhatsApp group “Meeting Only”, at Roshan Hall,
Amravati, to discuss the issue of the controversial comment and to take a
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call to appeal for “Bharat Band” but for the intervention of the local police,
the said call was not taken. However, the A-7, A-9 and A-10 were not
satisfied with that resolution. Thereafter, a chain of messages in support
and against that controversial comment went viral on social media.
Between 09.06.2022 to 11.06.2022, certain persons had supported the
controversial comment through social media. Therefore, they were
threatened by A-1 and A-10 and asked to post an apology.
3.1) As the prosecution case goes further, deceased Umesh Kolhe,
was a Veterinary Medical Shop owner. The Appellant is a Veterinary Doctor
and he used to visit the deceased’s shop to get medicines. Therefore, the
two were acquainted with each other. Additionally, they both were
members of a WhatsApp group, namely “Black Freedom” where many other
veterinary chemists and medical representatives were members. On
14.06.2022, deceased posted one photo of the said ex-spokesperson
alongwith certain text message from his mobile in support of her comment,
in that WhatsApp group. The Appellant, who was the only Muslim member
in that WhatsApp group, got offended by that post. The Appellant,
therefore, decided to avenge the deceased and hence, he took a screenshot
of that message of the deceased, typed his own instigating message, tagged
it to the screenshot of the post by deceased and finally posted it in other
WhatsApp group and to many individuals with the intent to expose the
deceased, spread hatred against him and to avenge the deceased for his act
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of posting that supporting message. But before taking such screenshot, the
Appellant changed the second-last digit of the mobile number of the
deceased saved in his contact list and then re-saved the mobile number,
thereafter took the screenshot of the WhatsApp post of the deceased
displaying the changed mobile number. This the Appellant did to expose the
identity of the deceased and to achieve the objective behind his instigating
message. The instigating message posted by the Appellant reads:
“
Amit Medical Prabhat Takiz Tehsil ke Samane isko batana hain ke
jin logon ke bharose kamai ki unse hi dushmani ka anjam kya hota
hai, is message ko zyada se zyada group or gore walo ko send kare”
.
3.2) It is alleged that, the Appellant then, with criminal intent,
visited at A-5, who was already known to A-6 as his client. A-5 was already
aware of and equally miffed by that post of the deceased. In this meeting,
the criminal conspiracy to eliminate the deceased began. Accordingly, on
18.06.2022, A-4 and A-5 met at Gausiya Hall and discussed about the
disputed post forwarded by the deceased. A-5 then told about that post to
A-7, who was also the recipient of that post from the Appellant and A-3,
being a member of other WhatsApp groups. On 19.06.2022, another
meeting was held between the accused persons, wherein it was decided to
behead (kill) the deceased because he had committed a crime against their
faith. With that common objective, the accused persons formed a terrorist
gang under the leadership of A-7 to kill the deceased and to strike terror in
the general public, who supported the controversial comment. In
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furtherance of the conspiracy, on 20.06.2022, at around 21.30 hours, A-4
and A-11, at the instance of A-5 and A-7, went on a motorbike to kill the
deceased. However, on that day, the deceased’s medical shop was closed.
3.3) It is alleged that, on 21.06.2022, as pre-decided with the co-
accused, A-1 to A-3 went near the medical shop of the deceased for Recce
on instructions from A-5 and A-7 and, took their positions. In the
meantime, A-4, A-5 and A-11 went to the lane of the incident and took their
positions. At about 22.20 hours, after closing his medical shop, when the
deceased was proceeding home riding his scooter, A-4 and A-11 wrongfully
restrained him and stabbed in his neck with a sharp knife with an intention
to behead him. As a result, the deceased suffered a serious injury and died.
3.4) On receipt of the information of the murder, an FIR bearing
C.R. No.306 of 2022 dated 22.06.2022 under Section 302 and 34 IPC was
registered with City Kotwali Police Station Amravati, against 3 unknown
persons. During investigation, Section 153-A, 153-B and 120-B of IPC and
section 16, 18, 20 of UAPA, came to be added. The Central Government
directed the NIA to investigate the case. The NIA re-registered the crime
vide RC-02/2022/NIA/MUM and investigated into the same. The sanction
was accorded on 15.12.2022, by the Ministry of Home Affairs, CTCR
Division under Section 45 (1) of UAPA against the Appellant and his co-
accused. The Appellant was arrested on 01.07.2022. On completion of
investigation, charge sheet was filed against the Appellant and others.
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4) Dr. Chaudhry, the learned Counsel appearing for the Appellant,
at the outset, pointed out the instigating message which the Appellant had
attached to the screenshot of the subject post and circulated through
WhatsApp amongst his acquaintances. Further, Dr. Chaudhry submitted
that, like the Appellant, several other veterinary doctors used to purchase
medicines from the deceased and thus were giving him the business. The
post of the deceased was not approved by the conscience of the Appellant.
He, therefore, only wanted to adversely affect the business of the deceased
by persuading the other veterinary doctors to stop purchasing medicines
and giving him an earning. Except this, the Appellant had no other
intention behind sending that message.
4.1) Dr. Chaudhry, urged that there is no material on record against
Appellant that he was radicalised Islamist. As alleged, first the Appellant
met A-5 to discuss the subject post of deceased and it was at that point of
time that the alleged conspiracy to kill the deceased began. However, as to
exactly what was discussed in that meeting about the conspiracy, not an
iota of evidence exists. He submitted that, thereafter, allegedly a couple of
meetings were held by the co-accused to deepen the conspiracy and give its
intended effect, but the Appellant was not part of those meetings which
according to the prosecution, led to killing of the deceased. Therefore,
according to Dr. Chaudhry, the Appellant cannot be blamed for the
conspiracy and the murder.
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4.2) Dr. Chaudhry, the learned counsel emphatically submitted that,
the main evidence against the Appellant is in the form of extra-judicial
confessions, allegedly made by his co-accused before certain individuals
and the police. However, said confessions are very belated, which indicates
that the confessions are outcome of a pressure exerted by the police and
therefore, non-voluntary. Moreover, such confessions by co-accused have
limited acceptance in law.
4.3) Lastly, raising the ground of incarceration, Dr. Chaudhry urged
that since last more than three and half years, the Appellant is in the jail.
His further detention is not required for any purpose. Till date, no charge is
framed against the accused. If such charge is framed, the prosecution will
examine many witnesses, as the number of witnesses are 254. Thus, the
trial would take its own time. As such, and having regard to the quality of
the evidence against the Appellant, his continued detention in jail will be
nothing but a per-trial punishment, which is against Article 21 of the
Constitution of India and the settled principles of law relating to grant of
bail in such cases. He therefore, prayed for grant of bail.
4.4) To substantiate these submissions, Dr. Chaudhry, has relied
upon following reported decisions. We have carefully perused the same.
i)
Pancho Vs. State of Haryana, (2011) 10 SCC 165 and ii) Vernon Vs. State
of Maharashtra and another, (2023) 15 SCC 56
.
5) Mr. Singh, the learned ASG, on the other hand, strongly
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opposed the Appeal. He submitted that, the Appellant was the only Muslim
member in the WhatsApp group in which the deceased had posted his
message, supporting the controversial comment. The Appellant felt that
message to be offending, he therefore prepared his mind to avenge against
the deceased. He took a screenshot of the WhatsApp post of the deceased,
added his instigating message to that and finally forwarded that post of the
deceased to other individuals and another WhatsApp group namely “Kalim
Ibrahim” of Muslim members to disclose the name and create hatred
against the deceased. The Appellant then met A-5, who was equally
offended by the message of the deceased. Prior to that meeting, a large
number of messages in support of and against the controversial comment
were posted on social media. Certain individuals, who had supported that
comment like the deceased, were threatened and made to post their
apology. The learned ASG submitted that the meeting of the Appellant and
A-5 was the first step taken towards the conspiracy to avenge against the
message posted by the deceased. Accordingly, the conspiracy was taken
further with the aid of the co-accused in a designed manner and finally the
deceased was murdered. As such there is a prima facie case of a very
serious offence against the Appellant. Therefore, upholding the rejection of
the bail by the trial Court is the only option in this Appeal.
5.1) To buttress these submissions, the learned ASG relies upon the
decision in
Union of India rep. by the Inspector of Police, National
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Investigation Agency, Chennai Branch Vs. Barakathullah, etc.,
2024 SCC
OnLine SC 1019
.
6) In the backdrop of aforestated rival submissions and the settled
position of law, we have considered the material on record enclosed with
report of police under Section 173 of Cr.P.C. This exercise surfaces that, the
Appellant was a member in the WhatsApp group namely “Black Freedom”
in which deceased had posted the message supporting the controversial
comment. If that post by the deceased is read in juxtaposition with the
alleged instigating text message that Appellant added to the screenshot of
that post of the deceased coupled with the statements of the witnesses, it is
clear that the Appellant got upset and angry, and he wanted to avenge the
deceased for his said act. The Appellant, therefore, drafted his message in
such a manner that, on reading it any individual or group of individuals
would easily get angry and make up their mind to avenge the deceased.
7) According to Dr. Chaudhry, the words in the message of the
Appellant,
i.e., “zyada se zyada gore walo ko send kare” make it very much
clearer that the Appellant only wanted to damage the business and earning
of the deceased, as many Muslims were his customers. But, Dr. Chaudhry
could not point out such customers from the record. On the contrary, the
word “
group” suffixed to the words “zyada se zyada”, clearly depicts the
otherwise intention “to avenge” behind that message. The use of the words
“
Amit Medical Prabhat Takiz Tehsil ke Samane isko batana hain” also
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indicates that the deceased was specifically selected to target. Because
unlike others, he was not told to post an apology for his supporting post. Dr.
Chaudhry could not justify as to why the use of said words was necessary.
In this context, Section 14 of the Evidence Act is relevant and it reads :
14. Facts showing existence of state of mind, or of body or bodily
feeling.– Facts showing the existence of any state of mind such as
intention, knowledge, good faith, negligence, rashness, ill-will or
good-will towards any particular person, or showing the existence
of any state of body or bodily feeling, are relevant, when the
existence of any such state of mind or body or bodily feeling is in
issue or relevant.
[
Explanation 1. - A fact relevant as showing the existence of a
relevant state of mind must show that the state of mind exists, not
generally, but in reference to the particular matter in question.
Explanation 2. - But where, upon the trial of a person accused of
an offence, the previous commission by the accused of an offence
is relevant within the meaning of this section, the previous
conviction of such person shall also be relevant fact.]
8) If indeed, the Appellant only wanted to limit the impact of his
message to adversely affect the business of the deceased, firstly; he would
have drafted his message with that angle. Secondly, which is most
important having regard to the investigation material, the Appellant would
have forwarded his message only to those who were customers of the
deceased. However, instead of that, which, according to us was quite
natural and normal, what the Appellant did, he circulated the post crafted
by him in the WhatsApp group namely “Kalim Ibrahim” as well as to many
individuals, irrespective of whether the recipients were customers of the
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deceased or not. Soon thereafter, the Appellant met with A-5, and
immediately thereafter, as perceivable from the statement of the witnesses,
the conspiracy was hatched.
9) Considering the text of the message posted by Appellant and its
circulation through WhatsApp but not before suitably altering the mobile
number of the deceased to be displayed in that message it is evident that, at
a time the Appellant wanted to unwrap the deceased to many individuals,
so that some individual or a group of persons would immediately come in
action and avenge against the deceased in a short time.
10) Perusal of record indicates that, there was already an outrage
due to the controversial comment and the societal situation was very tense.
Meantime, several individuals were threatened for they had posted the
messages supporting that comment like the deceased and therefore, were
commanded to post their apology. The Appellant being a literate and most
importantly a veterinary doctor, was capable of understanding that delicate
situation in the interest of public at large and to maintain the orderly
society. But he believed in sending his message to take revenge of the
deceased and to meet A-5 for that end.
11) Additionally, what appears significant to us is the phone calls
exchanged between the Appellant and A-5. Record indicates that, in all 25
phone calls were exchanged by them before and after the commission of the
crime. Therefore, and having regard to their acquaintance with each other,
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the contention of the prosecution that after sending his instigating message
the Appellant had met with A-5 appears probable. Looking at the material
on record it appears that, A-5 was the main conduit between the Appellant
and the other co-accused. Because like the Appellant, A-5 had also
exchanged a large numbers of phone calls with the co-accused. In the
meanwhile, the A-5 took steps for meetings to make the conspiracy work.
Thus, it prima facie appears that those calls and the meeting were for the
purpose of hatching conspiracy.
12) In this context we have noticed that, after the meeting with the
Appellant, the A-5 met with A-4 at Gausiya Hall and discussed about the
post sent by the deceased. A-5 then intimated about that post to A-7 in
person, who was already aware of it being recipient from the Appellant and
A-3. It can be noticed that A-7 was already aggressive over the
spokesperson’s issue alongwith A-1, A-9 and A-10. Further, A-5 and A-7
decided to meet at Gausiya Hall on 19.06.2022. Accordingly, in the evening,
A-4, A-5, A-7 and A-11 assembled at Gausiya Hall to discuss the matter of
the deceased and decided that, there should be only one punishment of
beheading the deceased, which act A-4, A-5 and A-11 voluntarily agreed to
do and A-7 agreed to support till it accomplished.
13) Considering the material on record, prima facie it appears that,
a terrorist gang was formed by the accused persons under the leadership of
A-7 to avenge the alleged dishonour of their faith by the deceased, by
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brutally killing him and to strike terror into the hearts and minds of general
public irrespective of whether they supported the spokesperson’s comment
or not. Therefore when the deceased was not found on the previous day, the
accused found him on the very next day and committed his murder.
14) Dr. Chaudhry, the learned Counsel submitted that, as alleged,
only once the Appellant had met with A-5. Thereafter, the Appellant was
not involved in any the other meetings or activities. However, that itself is
not sufficient to accept that the Appellant has been innocent or was not part
of the conspiracy to eliminate the deceased. Because, from the material on
record it appears that, after igniting the anger with his instigating message,
the Appellant shrewdly kept himself away from co-accused till the
commission of murder, so that he cannot be held responsible for the crime.
The 25 phone calls exchanged between him and A-5, also indicates the
same. Meaning, the Appellant was quietly active behind the curtain.
15) The Appellant was not present in a particular meeting with
certain other accused is not material, as conspiracy can be inferred and
proved by circumstantial evidence also. Conspiracies are secretary planned
and direct evidence is therefore difficult to produce. However, the Court for
the purpose of arriving at a finding as to whether the said offence has been
committed or not, must bear in mind that meeting of the minds is essential;
mere knowledge or discussion would not be.
15.1) In this context we have noticed that in order to avenge the
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deceased, first, the Appellant changed the deceased’s mobile no. in a
suitable manner. He then added the instigating message to that, sent it to
individuals and in the WhatsApp group. He then met with A-5, who was
part of a couple of meetings which were also attended by some of the co-
accused. Large numbers of phone calls were exchanged by the accused
persons including the Appellant and the A-5, who was one of the
mastermind of the crime. On 09.06.2022, the mobile location of the
Appellant was found to be at Roshan Hall, where the meeting was held to
discuss the issue of filing FIR against the controversial comment. All these
circumstances show that there was a meeting of minds by the Appellant and
the other accused persons to hatch the criminal conspiracy to kill the
deceased which they did at the end. Thus, even independent of the extra
judicial confessions of the co-accused, there is a prima facie case against the
Appellant of having committed the alleged offence.
16) In case of
Vernon (Supra), it was not possible for the Hon’ble
Supreme Court to form an opinion that, there were reasonable grounds for
believing that the accusation against the Appellant of committing or
conspiring to commit terrorist act was prima facie true. That being the
position, the apex Court held that, prima facie, neither the provisions of
Section 18 nor Section 18-B can be invoked against the Appellants, therein
at the stage of the bail. The actual involvement of the Appellants in any
terrorist act was not surfaced from any of third-party communications. Nor
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was there any credible case of conspiracy to commit offences enumerated
under Chapters IV and VI of the 1967 Act. It is therefore held that, mere
participation in seminars by itself cannot constitute an offence under the
bail-restricting Sections of the 1967 Act, with which the Appellants were
charged. In paragraph 39, the Hon’ble Supreme Court considered the
applicability of Section 20 of the 1967 Act and held that, prima facie
Section 20 cannot be made applicable against the Appellants, on the basis
of the available materials. To form this view, it affirmed the interpretation
given to Section 20 by the Division Bench of this Court in
Anand Teltumbde
Vs. NIA,
2022 SCC OnLine Bom 5174, which is as under:
“52.Section 20 cannot be interpreted to mean that merely being
a member of a terrorist gang would entail such a member for the
above punishment. What is important is the terrorist act and what is
required for the Court to see is the material before the Court to
show that such a person has been involved in or has indulged in a
terrorist act. Terrorist act is very widely defined under Section 15.
In the present case, seizure of the incriminating material as alluded
to hereinabove does not in any manner prima facie lead to draw an
inference that the Appellant has committed or indulged in a
“terrorist act” as contemplated under Section 15 of the UAP Act.”
In paragraph 46, the Hon’ble Supreme Court observed that, “In
NIA Vs.
Zahoor Ahmad Shah Watali
,
(2019) 5 SCC 1, 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 charge-sheet must prevail, unless overcome or
disproved by other evidence and on the face of it, materials must show
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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 prevail. However, it would not satisfy the prima facie
“test” unless there is at least surface-analysis of probative value of the
evidence, at the stage of examining the question of granting bail and the
quality or probative value satisfies the court of its worth.
In the wake of above, although the Appellants therein as
undertrials had not crossed a substantial term of the sentence that may
have been ultimately imposed against them on proof of the charges, it
followed the fundamental proposition of law laid down in
Union of India
Vs. K.A. Najeeb,
(2021) 3 SCC 713, that a bail-restricting clause cannot
denude the jurisdiction of a constitutional court in testing if continued
detention in a given case would breach the concept of liberty enshrined in
Article 21 of the Constitution of India, would apply in a case where such a
bail-restricting clause is being invoked on the basis of materials with prima
facie low-probative value or quality. Therefore, bail was granted in the case.
16.1) In case of
Pancho (Supra), on referring the earlier decisions in
the field, the Hon’ble Supreme Court observed and held that, an extra-
judicial confession can be used against its maker, but as a matter of caution,
courts look for corroboration to the same from other evidence on record. An
extra-judicial confession is a weak evidence and the Courts are reluctant in
the absence of a chain of cogent circumstances to rely upon it for the
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purpose of recording a conviction. In Haricharan Kurmi Vs. State of Bihar,
AIR 1964 SC 1184
, the apex Court observed that Section 30 merely enables
the Court to take the confession into account. It is not obligatory on the
Court to take the confession into account. A confession cannot be treated as
substantive evidence against a co-accused. Where the prosecution relies
upon the confession of one accused against another, the proper approach is
to consider the other evidence against such an accused and if the said
evidence appears to be satisfactory and the Court is inclined to hold that
the said evidence may sustain the charge framed against the said accused,
the Court turns to the confession with a view to assuring itself that the
conclusion which it is inclined to draw from the other evidence is right. In
paragraph 28, the Hon’ble Supreme Court observed that, in Haricharan
(Supra)
it is clarified that though confession may be regarded as evidence
in generic sense because of the provisions of Section 30 of the Evidence Act,
the fact remains that it is not evidence as defined in Section 3 of the Act.
17) However, in our considered view these cited decisions are not
applicable to the case in hand because, on a careful analysis of the
probative value of the material on record, we are satisfied that a prima facie
case has been made out against the Appellant showing his involvement in
the crime since its inception. In so far as the extra-judicial confessions are
concerned, majorly, it is an additional material against him.
17.1) In this context, it is apt to refer the decision in
Barakathullah,
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etc. (Supra). Therein the Hon’ble Supreme Court has considered the earlier
decisions in
Gurwinder Singh Vs. State of Punjab 2024, SCC OnLine SC 109
and NIA Vs. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1.
17.2) In
Barakathullah
(Supra), in paragraph 12, it is observed that
in
Gurwinder Singh Vs. State of Punjab
(supra), the apex Court has culled
out following guidelines from Watali’s Case :-
“34.In the previous section, based on a textual reading, we
have discussed the broad inquiry which Courts seized of bail
applications under Section 43D(5) UAP Act r/w Section 439 CrPC
must indulge in. Setting out the framework of the law seems
rather easy, yet the application of it, presents its own
complexities. For greater clarity in the application of the test set
out above, it would be helpful to seek guidance from binding
precedents. In this regard, we need to look no further than
Watali’s case which has laid down elaborate guidelines on the
approach that Courts must partake in, in their application of the
bail limitations under the UAP Act. On a perusal of paragraphs 23
to 29 and 32, the following 8-point propositions emerge and they
are summarised as follows :
• Meaning of ‘Prima facie true’ [para 23] : On the face of it,
the materials must show the complicity of the accused in
commission of the offence. The materials/evidence must be
good and sufficient to establish a given fact or chain of facts
constituting the stated offence, unless rebutted or contradicted
by other evidence.
• Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet
and Post-Charges - Compared [para 23] : Once charges are
framed, it would be safe to assume that a very strong suspicion
was founded upon the materials before the Court, which
prompted the Court to form a presumptive opinion as to the
existence of the factual ingredients constituting the offence
alleged against the accused, to justify the framing of charge. In
that situation, the accused may have to undertake an arduous
task to satisfy the Court that despite the framing of charge, the
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materials presented along with the charge-sheet (report under
Section 173 CrPC), do not make out reasonable grounds for
believing that the accusation against him is prima facie true.
Similar opinion is required to be formed by the Court whilst
considering the prayer for bail, made after filing of the first
report made under Section 173 of the Code, as in the present
case.
• Reasoning, necessary but no detailed evaluation of evidence
[para 24]: The exercise to be undertaken by the Court at this
stage—of giving reasons for grant or non-grant of bail—is
markedly different from discussing merits or demerits of the
evidence. The elaborate examination or dissection of the
evidence is not required to be done at this stage.
• Record a finding on broad probabilities, not based on proof
beyond doubt [para 24]: “The Court is merely expected to
record a finding on the basis of broad probabilities regarding
the involvement of the accused in the commission of the stated
offence or otherwise.”
• Duration of the limitation under Section 43D(5) [para
26] : The special provision, Section 43-D of the 1967 Act,
applies right from the stage of registration of FIR for the
offences under Chapters IV and VI of the 1967 Act until the
conclusion of the trial thereof.
• Material on record must be analysed as a ‘whole’; no
piecemeal analysis [para 27] : The totality of the material
gathered by the investigating agency and presented along with
the report and including the case diary, is required to be
reckoned and not by analysing individual pieces of evidence or
circumstance.
• Contents of documents to be presumed as true [para 27] :
The Court must look at the contents of the document and take
such document into account as it is.
• Admissibility of documents relied upon by Prosecution
cannot be questioned [para 27] : The materials/evidence
collected by the investigation agency in support of the
accusation against the accused in the first information report
must prevail until contradicted and overcome or disproved by
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other evidence……. In any case, the question of discarding the
document at this stage, on the ground of being inadmissible in
evidence, is not permissible.”
17.3) In paragraph 13, it is observed that, “… It is quite well settled
position of law that the chargesheet need not contain detailed analysis of
the evidence. It is for the concerned court considering the application for
bail to assess the material/evidence presented by the investigating authority
alongwith the report under Section 173 Cr.P.C. in its entirety to form its
opinion as to whether there are reasonable grounds for believing the
accusation against the accused is prima facie true or not.”
In paragraph 19, the Hon’ble Supreme Court observed that, “as
held in the case of
Watali (Supra), the question of discarding the material
or document at the stage of considering the bail application of an accused
on the ground of being not reliable or inadmissible in evidence is not
permissible. The Court must look at the contents of the documents and take
such documents into account as they are and satisfy itself on the basis of
broad probabilities regarding the involvement of the accused in the
commission of the alleged offences for recording whether a prima facie case
is made out against the accused.
18) In the wake of above and having considered the principles
enunciated and noted in case of
Barakathullah
(Supra), we are of the view
that there are reasonable grounds to believe that the accusation against the
Appellant is prima facie true. Undoubtedly, the offence alleged is grave and
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heinous in nature. Such offences affect the very core and conscious of the
society, make it vulnerable and think to live in constant fear. Having
reached to this prima facie opinion, we are not inclined to exercise the
discretion of bail in favour of the Appellant.
18.1) In the result, the Appeal fails and is accordingly dismissed.
(SHYAM C. CHANDAK, J.) (A.S. GADKARI, J.)
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