Madhya Pradesh High Court
Raghuraj Pratap Singh vs State Of M.P. on 15 December, 2005
Equivalent citations: 2006(1)MPHT222
Bench: Dipak Misra, Jeetendra K. Maheshwari
JUDGMENT
1. In this appeal preferred under Section 34 of the Prevention of Terrorism Act, 2002 (for brevity 'the POTA') the defensibility and pregnability of the order dated 29-11-2005 passed by the Special Court under the POTA at Jabalpur in Misc. Cr. No. 3439/2005 whereby the Designated Court has declined to admit the appellant to bail has been called in question.
2. The factual score as frescoed is that the house of Uday Pratap Singh, the father of the accused appellant, was raided in pursuance of execution of warrant of arrest in connection of Crime No. 93/93 under Section 2/3 of the Gangster Act pending before the learned Special Judge, Allahabad. During the raid the concerned police officer and his team found Uday Pratap Singh standing with one AK 56 rifle with black colour belt hanging on his right shoulder. On being asked to produce the licence, said Uday Pratap Singh could not produce the licence nor was he ready to divulge how he had acquired the said weapon along with the bullets. When they entered into the bedroom they found certain other articles which are impermissible to be retained under POTA. The Investigating Officer while preparing the recovery memorandum disclosed that a conspiracy was hatched to cause a massacre by killing some VIPs and there was also conspiracy to take some action against the Chief Minister. As per the said recovery memorandum statement of one Rajendra Yadav in his statement had stated that the present appellant and other co-accused Akshay Pratap Singh had bought AK-47/56 rifle and given to Uday Pratap Singh. It was alleged that after the statement was recorded he was murdered on 3-3-2003 and father of the deceased filed an FIR No. 16/2003 which gave rise to registration of offences punishable under Sections 302/34, 506, 120 of the Indian Penal Code at Police Station Hunda, Pratapgarh. Conspiracy was hatched by Uday Pratap Singh and Akshay Pratap Singh. A statement of Uday Pratap Singh was recorded which became the foundation for launching the prosecution under Sections 3 and 4 of POTA against the accused person. After the case under POTA was registered the accused was arrested and while he was suffering incarceration there was change of regime and the new regime revoked the earlier order passed under POTA, by order dated 29-8-2003. As is discernible from the factual depiction the accused filed a review petition under Section 60 of POTA and eventually the review committee found that there was no justification to proceed against the accused under POTA and the State of U.P. was directed to release the accused persons. Th6 said order was called in question before the Apex Court the decision of which has been rendered in the case of S.K. Shukla and Ors. v. Slate of U.P. and Ors., 2005 AIR SCW 6054.
3. It is worthnoting here that the present accused along with his father, Uday Pratap Singh was proceeded under Sections 3 and 4 of the POTA. When the matter was pending before the Apex Court the present appellant was enlarged on bail. The Apex Court taking into consideration the material collected against the accused persons and the absence of notification defining the area as requisite under Section 4(a) of the POTA expressed the view that as notification under Section 4(a) had not come into existence at the time when the raid on the premises of Uday Pratap Singh was conducted the charge under Section 4(a) of POTA could not be sustained. As far as Section 4(b) was concerned Their Lordships after referring to anatomy of the provision expressed the view that considering connotative expanse inhered in the conceptuality of hazardous substance under Section 4(b) of the Act observed that AK-56 is a very dangerous weapon and it is used in the warfare as well as in the terrorist activities very frequently. While commenting upon the cases relating to the accused persons the Apex Court has expressed the view as under :-
.... So far as this case is concerned, we are of the opinion that there is prima facie case for prosecuting the accused persons. These accused persons were charged under Section 3(3) read with Section 4(a)(b) of the Act. But so far as Section 4(a) is concerned, for reasons mentioned above, it can not proceed now. But it can proceed so far as under Section 3(3) and Section 4(b) of the Act is concerned along with Arms Act & Explosives Act. Therefore, we allow this appeal in part. We set aside the order of the Review Committee and hold that the respondents can be prosecuted under Section 3(3) and Section 4(b) of the Act and other provisions of the Explosive and Arms Act. The accused Mr. Uday Pratap Singh and Raghuraj Pratap Singh alias Raja Bhaiya may surrender before the Judge, Designated Court, under POTA Act/Sessions Judge, Kanpur Nagar within a week and apply for bail. In case they fail to appear before the Judge, the Judge, Designated Court under POTA Act, Kanpur Nagar get them arrested. So far as Akshay Pratap Singh is concerned, as he is already on bail, he need not to surrender. However, any observation made in this order will not prejudice their trial.
4. Be it placed on record while dealing with the writ petition wherein the assail was to the direction issued to the Public Prosecutor to withdraw the POTA cases against the accused persons, their Lordships opined as under :
The Public Prosecutor can not act like a post box or act on the dictate of the State Governments. He has to act objectively as he is also an officer of the Court. At the same time Court is also not bound by that. The Courts are also free to assess whether the prima facie case is made or not. The Court, if satisfied, can also reject the prayer. However in the present case we have examined the matter and found that there is a prima facie case to proceed against the accused persons under Section 4(b) of the Act and other provisions of the Explosive or Arms Act, therefore, the sanction granted by the Government and application moved by public prosecutor for withdrawal of the cases can not be sustained.
Thereafter Their Lordships proceeded to deal with the Transfer Application Nos. 82-84/2004. In the aforesaid context Their Lordships stated as under:-
It is alleged that accused Raghuraj Pratap Singh alias Raja is an independent MLA who is supporting the present Government and is a Minister in the Government. After going through the transfer petition and counter affidavit on behalf of the respondents, we are of the opinion that there is likelihood of miscarriage of justice in the background mentioned above. It is alleged that murder of Shri Rajender Yadav has taken place and his younger brother is connected with this case. Therefore, in the interest of justice both these cases be transferred to any other Court where, in a proper atmosphere, the matter can be dealt with fairly. In the interest of justice, we direct that Criminal Case No. 3/2003 in Crime Case No. 10/2003 under Sections 3 and 4 of POTA Act titled as State v. Udai Pratap Singh, Raghuraj Pratap Singh @ Raja Bhaiya and Akshay Pratap Singh @ Gopalji and Case No. 113/2002 and 209/2002 under Section 2/3 of UP Gangster and Social Activities (Prevention) Act, 1986 titled as State of U.P. v. Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja Bhaiya @ Akshay Pratap Singh pending in the Court of Special Judge (Gangster Act), Allahabad, UP be transferred to a Special Judge in MP.
5. The appellant in pursuance of the order passed by the Apex Court surrendered before the Designated Court at Kanpur. It is appropriate to mention here that Their Lordships directed that if he fails to surrender, the Court would get him arrested. As far as Akshay Pratap Singh is concerned it was expressed that he had been already on bail and he need not surrender. It was also expressed by Their Lordships that any observation made therein would not prejudice their trial. As is demonstrable the appellant was produced before the Designated Court at Jabalpur as the said Court was nominated by Hon'ble the Chief Justice of High Court of Madhya Pradesh to be the Court for trial. The POTA Court at Jabalpur, as indicated hereinabove, declined to accept the prayer for bail. While rejecting the prayer for bail the learned Special Judge under the POTA has referred to the observation of the Apex Court that there was a prima facie case against the appellant; that the benefit of parity claimed on the basis that Akshay Pratap Singh has been released on self same allegations was not acceptable as the reasons given for his release on bail was not approved by the Apex Court; and that there was some sufficient acceptable ground to presume that the accused has committed offence punishable under Section 3(3) of the POTA as the charge had been framed in respect of aforesaid offences; and that it is difficult to believe that the accused is not guilty of offences. It is condign to state that a contention was raised by the accused before the learned Special Judge that as the Special Public Prosecutor appointed by the State of U.P. has not opposed the prayer for bail, bail was to be granted but the learned Judge negatived the said contention by taking note of the fact that the Public Prosecutor appointed by the State of M.P. had the authority to oppose and had opposed the prayer for bail.
6. We have heard Mr. Sushil Kumar, Mr. S.C. Datt and Mr. Vijay Bahadur Singh, learned Senior Counsel along with Mr. H.S. Dubey, Mr. C.D. Singh and Mr. Manish Datt for the appellant, Mr. P.R. Bhave, learned Senior Counsel along with Mr. S.K. Yadav and Mr. Anupam Mehrotra for the State of Uttar Pradesh and Mr. T.S. Ruprah and Mr. R.S. Patel, learned Advocates General for the State of Madhya Pradesh. We have also heard Mr. Surender Singh, learned Senior Counsel along with Mr. Pratulya Shandilya who has entered appearance on behalf Awadhesh Pratap Shukla, one of the witnesses in another case. Mr. Sushil Kumar, learned Senior Counsel very fairly stated that he has no objection if Mr. Surendra Singh addresses the Court to aid and assist but he may not be permitted to argue on behalf of the witness. In view of the aforesaid we had the privilege of assistance of Mr. Singh.
7. Mr. Sushil Kumar, learned Senior Counsel for the appellant has raised the following contentions :
(a) The appeal preferred under Section 34 of the POTA as per the engrafted provision is an appeal of facts and law and, therefore, this Court should scrutinise the material brought on record in great detail so that the legislative intendment for providing an appeal even against the order of rejection of bail is appropriately construed and appreciated.
(b) The Designated Court has fallen into grave error by expressing the opinion that it was difficult to record a finding that there are grounds for believing that the accused is not guilty of committing such offences though the said rigour as employed under Section 49(7) of the Act is not applicable inasmuch as the period of one year of incarceration has already expired.
(c) Assuming the rigours of Section 49(7) is attracted, the only material against the accused is the alleged confessional statement of his father Uday Pratap Singh. The ground to believe he is not guilty of committing such offence is available inasmuch as the said confessional statement is not to be taken aid of due to non-compliance of safeguards provided under Section 32 of the POTA. In addition, there is non-compliance of Section 52 of the Act which makes the trial vitiated in law.
(d) The doctrine of parity gets invited to a case at hand since the accused Akshay Pratap Singh and the present accused stand on similar footing as the allegations are same.
(e) The finding recorded by the POTA Court that the Apex Court had not approved the release of Akshay Pratap Singh is sans substratum inasmuch as Their Lordships have not interfered with the order of bail mainly on the ground that Akshay Pratap Singh had been in long detention and as far as the present appellant is concerned, the had languished in jail for a longer period than that of Akshay Pratap Singh hence, he has a better case to be enlarged to bail than Akshay Pratap Singh.
(f) Emphasis by the learned Special Judge on that expression regarding prima fade case by the Apex Court is a total misunderstanding of the judgment inasmuch as the Apex Court has itself stated that the observations arc not be utilised during trial and further granted leave to the accused appellant to move the Designated Court for bail and in any case the continuance of case by the order of the Apex Court does not necessarily mean that the application for bail is not to be considered or the said judgment create any remora or impediment for grant of bail.
(g) The accused was enlarged on bail by the Designated POTA Court at Kanpur and the said order was not brought to the notice of the Apex Court and had it been brought, he would have been dealt with similarly like Akshay Pratap Singh.
(h) Once the rigour of Section 49(7) is lifted, eclipse gets over and parameters of Section 439 of the Code of Criminal Procedure would alone be attracted and if considered on that backdrop there would be no constraint for grant of bail.
(i) The appellant had remained in custody for more than 15 months and thereafter he was released on bail and during that period no overt act has been committed by him and hence, his conduct should be taken into consideration for releasing him on bail.
8. Mr. P.R. Bhave, learned Senior Counsel alongwith Mr. S.K. Yadav and Mr. Anupam Mehrotra appearing for the State of U.P. have categorically stated that they have the instructions not to oppose the prayer for bail. However, they agreed to provide the data as required by this Court and answer the queries.
9. Mr. T.S. Ruprah and Mr. R.S. Patel, learned Additional Advocate Generals for the State of M.P. fairly stated that as they are Public Prosecutors they have to oppose the prayer for bail in a case of this nature and it is their obligation to provide the case diary to show the allegations that have been levelled against the appellant and also enlighten about the antecedents.
10. Mr. Surender Singh, learned Senior Counsel has submitted that it is not a fit case where the benefit of bail should be extended to the appellant.
11. Submissions raised by the learned Counsel for the opposing respondents in oppugnation to the submissions put forth by the learned Counsel for the appellant can be stated in seriatim as under :
(a) Even if the rigours of Section 49(7) of the POTA are not attracted the criminal antecedents of the appellant go a long way to show that he does not deserve to be enlarged on bail.
(b) The number of cases that are pending against him show his criminal conduct and if such a person is admitted to bail he would tamper with the evidence which would create impediment in holding the trial in a fair manner.
(c) The tall claim that the accused has been acquitted in number of cases is totally inconsequential inasmuch as the position he holds and the attitude he reflects, makes it luminescent and clear as day that no witness would dare to depose against him and in the absence of material brought on record it would be difficult to record a conviction against him.
(d) The possession of weapon as defined under the Act and dealt with by the Apex Court can not be lightly understood and if the gravity of the offence is taken into consideration in juxtaposition of the punishment provided, the case of the appellant is sans merit and hence, he is not entitled to be released on bail.
(e) The accused appellant has the political support of the party in power and when his case has been transferred to the State of M.P. because of apprehension in the mind of the witnesses as regards the fair trial, the same has to be given seemly weightage and once that is given the appeal has to be dismissed.
(f) Once the Apex Court has come to hold that prima facie there is a case against the accused appellant there is not much scope to extend the privilege of bail to the appellant as the possibility of his tampering with the evidence can never be brushed aside or marginalised.
(g) The long list of cases pending against the accused would show his criminal temperament, accentuated potentiality to create a tremolo in the State of U.P. where witnesses live and ergo, the prayer for bail should be refused.
12. To appreciate the rivalised submissions raised at the Bar it is seemly to reproduce Sub-sections (6) to (9) of Section 49 of POTA. They read as under :
49. Modified application of certain provisions of the Code.
(6) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond unless the Court gives the Public Prosecutor an opportunity of being heard.
(7) Where the Public Prosecutor opposes the application of the accused to release on bail, no person accused of an offence punishable under this Act or any rule made thereunder shall be released on bail until the Court is satisfied that there are grounds for believing that he is not guilty of committing such offence :
Provided that after the expiry of a period of one year from the date of detention of the accused for an offence under this Act, the provisions of Sub-section (6) of this Section shall apply.
(8) The restrictions on granting of bail specified in Sub-sections (6) and (7) are in addition to the restrictions, under the Code or any other law for the time being in force on granting of bail.
(9) Notwithstanding anything contained in Sub-sections (6), (7) and (8), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing.
Submission of Mr. Sushil Kumar is that Sections 49(6) and 49(7) are to be read together and as the period of more than one year of incarceration has expired the condition precedent engrafted under Sub-section (7) would not get attracted. To bolster the aforesaid submission he has commended us to the decision rendered in the case of People's Union for Civil Liberties and Anr. v. Union of India . In the aforesaid case the constitutional validity of various provisions of POTA was called in question. While dealing with the validity of Section 49 Their Lordships in Paragraphs 66 to 70 expressed the view as under :
66. The petitioners' main grievance about this section is that under Section 49(7) a Court could grant bail only if it is satisfied that there are grounds for believing that an accused "is not guilty of committing such offence"; since such a satisfaction could be attained only recording of evidence there is every chance that the accused will be granted bail only after minimum one year of detention; that the proviso to Section 49(7), which is not there under TADA, makes it clear that for one year from the date of detention no bail could be granted; that this section has not incorporated the principles laid down by this Court in Sanjay Dutt case (at p. 439, paras 43-48 of SCC), wherein it is held that if a challan is not filed after expiry of 180 days or extended period, the indefeasible right of an accused to be released on bail is ensured, provided that the same is exercised before filing of challan; that the prosecution is curtailing even this right under POTA. Therefore, the petitioners want us to make the section less stringent according to the settled principles of law. Learned Attorney General submitted that the provisions regarding bail are not onerous nor do they impose any excessive burden or restriction on the right of the accused; that similar provisions are found in Section 37 of the NDPS Act, 1985 and in Section 10 of the U.P. Dacoity Affected Areas Act; that on a true construction of Sections 49 (6) and (7); it is not correct to conclude that the accused can not apply for bail during the period of one year; that the right of the accused to apply for bail during the period of one year is not completely taken away; that the stringent provision of bail under Section 49(7) would apply only for the first one year of detention and after its expiry the normal bail provisions under the Cr.PC would apply; that there is no dispute that the principle laid down by this Court in D.K. Basu v. State of W.B. will apply; that in the light of effective safeguards provided in the Act and effective remedies against adverse orders there is no frailty in Section 49.
67. Section 49 of the Act is similar to Section 20 of the TADA, constitutional validity of which has been upheld by this Court in Kartar Singh case (pp. 691-710 of SCC). Challenge before us is limited to the interpretation of Sections 49 (6) and (7). By virtue of Section 49(8), the powers under Sections 49 (6) and (7) pertaining to bail are in addition to and not in derogation to the powers under the Code or any other law for the time being in force on granting of bail. The offences under POTA are more complex that that of ordinary offences. Usually the over and covert acts of terrorism are executed in a chillingly efficient manner as a result of high conspiracy, which is invariably linked with anti-national elements both inside and outside the country. So an expanded period of detention is required to complete the investigation. Such a comparatively long period for solving the case is quite justifiable. Therefore, the investigating agencies may need the custody of the accused for a longer period. Consequently, Sections 49 (6) and (7) are not unreasonable. In spite of this, bail could be obtained for an accused booked under POTA if the "Court is satisfied that there arc grounds for believing that he is not guilty of committing such offence" after hearing the Public Prosecutor. It is the general law that before granting the bail the conduct of the accused seeking bail has to be taken into account and evaluated in the backgrounds of the nature of crime said to have been committed by him. That evaluation shall be based on the possibility of the likelihood of his either tampering with the evidence or committing the offence again or creating threat to the society. Since the satisfaction of the Court under Section 49 (7) has to be arrived at based on the particular facts and after considering the abovementioned aspects, we do not think the unreasonable attributed to Section 49(7) is fair. (See Kartar Singh case, p. 707, Paras 349-52 SCC).
68. Proviso to Section 49(7) read as under :
Provided that alter the expiry of a period of one year from the date of detention of the accused for an offence under this Act, the provisions of Sub-section (6) of this Section shall apply.
69. It is contended that this proviso to Section 49(7) of POTA is read by some of the Courts as a restriction on exercise of power for grant of bail under Section 49(6) of POTA and such power could be exercised only after the expiry of the period of one year from the date of detention of the accused for offences under POTA. If the intention of the legislature is that an application for bail can not be made prior to expiry of one year after detention for offences under POTA, it would have been clearly spelt out in that the manner in Section 49(6) itself. Sections 49(6) and 49(7) of POTA have to be read together and the combined reading of these two sections is to the effect that the Public Prosecutor has to be given an opportunity of being heard before releasing the accused on bail and if he opposes the application, the Court will have to be satisfied that there are grounds for believing that he is not guilty of having committed such offence. It is by way of exception to Section 49(7) that the proviso is added which means that after expiry of one year after the detention of the accused for offences under POTA, the accused can be released on bail after hearing the Public Prosecutor under ordinary law without applying the rigour of Section 49(7) of POTA. It also means that the accused can approach the Court for bail subject to conditions of Section 49(7) of POTA within a period of one year after the detention for offences under POTA.
70. Proviso to Section 49(7) provides that the condition enumerated in Sub-section (6) will apply after the expiry of one year. There appears to be an accidental omission or mistake of not including the word "not" after the word "shall" and before the word "apply". Unless such a word is included, the provision will lead to an absurdity or become meaningless. Even otherwise, read appropriately, the meaning of the proviso to Section 49(7) is that an accused can resort to ordinary bail procedure under the Code after that period of one year. At the same time, the proviso does not prevent such an accused to approach the Court for bail in accordance with the provisions of POTA under Sections 49 (6) and (7) thereof. This interpretation is not disputed by the learned Attorney General. Taking into account the complexities of terrorism-related offences and intention of Parliament in enacting a special law for its prevention, we do not think that the additional conditions regarding bail under POTA arc unreasonable. We uphold the validity of Section 49.
13. The learned Counsel for the respondents fairly conceded that the rigour of Section 49(7) of POTA would not be attracted inasmuch as the accused appellant had remained in custody from 13-2-2003 to 17-6-2004. In view of the aforesaid position there can be no scintilla of doubt that after expiry of detention of one year the stringent provisions of Section 49(7) would not apply and only the parameters of Section 439 of the Code of Criminal Procedure would have full play.
14. In the case of Ghanchi Rubina Salimbhai v. Metubha Diwan Singh Solanki and Ors. , Their Lordships expressed the view that the High Court while granting bail reversing the Trial Court's finding should briefly indicate the reasons.
15. In this context, we may refer with profit to a two-Judge Bench decision of the Apex Court rendered in the case of Salim Khan v. Sanjai Singh and Anr. , wherein Their Lordships expressed the view that the High Court is duty bound to consider all statements recorded under Section 161 of the Cr.PC, examine the gravity of the offence and also examine the question of possibility of the accused's tampering with the evidence and possibility of getting the attendance of the accused during trial.
16. In the case of State of Maharashtra v. Sitaram Popat Vetal and Anr. (2004) 7 SCC 521, while dealing with the duty of the Court while passing an order of bail Their Lordships expressed the view as under :
6. There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accuscd was charged of having committed a serious offence. It is necessary for the Courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are :
(1) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(2) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(3) Prima facie satisfaction of the Court in support of the charge.
7. Any order dehors of such reasons suffers from non-application of mind as was noted by this Court in Ram Govind Upadhyay v. Sudarshan Singh, Puran v. Rambilas and in Kalyan Chandra Sarkar v. Rajesh Ranjan.
8. Though a conclusive finding in regard to the points urged by the parties is not expected of the Court considering the bail application, yet giving reasons is different from discussing merits or demerits. As noted above, at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. But that does not mean that while granting bail some reasons for prima facie concluding why bail was being granted is not required to be indicated.
17. In Chamanlal v. State of U.P. and Anr. , Their Lordships ruled thus :
At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case is not to be undertaken, but there is a need to indicate in the order reasons for prima facie concluding why bail was being granted, particularly where an accused was charged of having committed a serious offence. Though a conclusive finding in regard to the points urged by the parties is not expected of the Court considering the bail application, yet giving reasons is different from discussing merits or demerits. Any order dehors of such reasons suffers from non-application of mind. The Court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. The factors which the Court must consider among other circumstances before granting bail are (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant and (iii) prima facie satisfaction of the Court in support of the charge." (Quoted from the placitum)
18. In Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and Anr. , Their Lordships opined as under :-
11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the Court granting bail to consider among other circumstances, the following factors also before granting bail; they are:--
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the Court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas).
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18. We agree that a conclusive finding in regard to the points urged by both the sides is not expected of the Court considering a bail application. Still one should not forget, as observed by this Court in the case Puran v. Rambilas (SCC p. 344).
Giving reasons is different from discussing 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 undertaken.... 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 requirement 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 addressed by the learned Counsel for the accused that the High Court was not expected even to indicate a prima facie finding on all points urged before it while granting bail, more so in the background of the facts of this case where on facts it is established that a larger number of witnesses who were examined after the respondent was enlarged on bail had turned hostile and there are complainants made to the Court as to the threats administered 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 allegations 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 conclusions 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 tampering with the wit nesses made against the respondent.
19. In the case of Jayendra Saraswathi Swamigal v. State of T.N. (2005) 2 SCC 13', the Apex Court observed as under :
16. The consideration which normally weigh with the Court in granting bail in non-bailable offences have been explained by this Court in State v. Capt. Jagjit Singh and Gurcharan Singh v. State (Delhi Admn.) and basically they are the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence 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 which may be relevant in the facts and circumstances of the case.
20. At this juncture, we may mention with profit that the appellant has been charged under Section 3(3) of the POTA by the Designated Court. The same has been brought on record. The learned Sessions Judge-cum-Special Judge under the POTA, Jabalpur, has expressed the opinion while framing charge, as under :
It is relevant to note that vide order dated 13-8-2003 the learned Judge of the Special Court under POTA at Kanpur Nagar has already framed charges against all the 3 accused persons. Accordingly, the accused No. 2 Raghuraj Pratap Singh and accused No. 3 Akshay Pratap Singh @ Gopalji have been charged with the offence punishable under Section 3(3) of the POTA, whereas the accused No. 1 Udai Pratap Singh stands charged with the offence punishable under Section 4 of the POTA.
A bare perusal of the charge framed against the accused No. 1 Udai Pratap Singh would reveal that first part of the charge relates to the offence punishable under Sub-section (a) of Section 4 of POTA. However, as explained by the Hon'ble Apex Court in order dated 10th November, 2005 passed in Writ Petition (Criminal) Nos. 132-34 of 2003 and Criminal Misc. Petition No. 8093-8095 of 2003, the prosecution against him can proceed only for the offence punishable under Section 4(b) of the POTA. Accordingly, the first charge is deleted and the second and third parts are renumbered as part first and second, respectively and (b) is added after Section 4.
Issue summons to the prosecution witnesses as per the trial programme.
Case for prosecution evidence on 20th and 21st December, 2005.
21. Keeping the aforesaid pronouncement of law in view we shall presently proceed to deal with the material brought on record. While adverting to such a necessity we shall also keep in view the contentions raised by Mr. Sushil Kumar in relation to parity and other facets.
22. At the very outset, we think it apt to refer to the material by which the appellant has been implicated. The main stay of the prosecution is the confessional statement of Uday Pratap Singh, the father of the appellant. The said confessional statement has been brought on record. English translation of the same reads as under :
On questioning Shri Udai Pratap Singh s/o Shri Trilochan Pratap Singh r/o Bhadri PS Kotwali Kunda District Pratapgarh has disclosed My son Raghuraj Pratap Singh had given me this A.K. 56 rifle. I could not state that from where my son had got this rifle when he gave that rifle to me at that time Akshay Pratap Singh had also come along with him to Bhadri Kothi. Akshay Pratap Singh was also holding such kind of rifle. As we are Kshtriya and also king for this region we are entitled to possess best quality weapon. Collector or Government may or may not issue licence to us. I have frequently used that at time to punish the traitor and at times in Election for my son. My son had also used rifle during election and to bring the people under his banner. It is not possible to rule without creating fear and terror. Nobody is alive nor can be alive after bearing animosity against me. I am the king and shall be the king and you must know your Chief Minister (He became invective against the Chief Minister, to mention it, would be against the office and dignity of her) having sent my son and Akshay Pratap to jail has challenged me Raja Udai Pratap Singh today you people have apprehended me otherwise I would show to your Chief Minister tomorrow on 26th January, that what are the consequences of hostility towards us. I had made all the arrangements, the explosive which you have seized from our place is the refuse of the actual quantity. Real quantity has been sent to Lucknow for accomplishing the task tomorrow, you can not understand the extent of our connection/contacts wait and watch what would happen next and what does the Chief Minister Mayawati thinks that because of confinement of my son and Akshay in different jails I am incapacitate to get the messages and news about them. I would not disclose that presently how do I manage to get the news and messages about them. On questioning further, he has stated that since the confinement of my son and Akshay in jail, whereabouts are their rifles, I can not state and from where do they send for all these articles ?
He answered- inquire from them and once again he said- am the king and became quiet and did not disclose anything on questioning.
23. On that basis the case has been pyramided. Submission of Mr. Sushil Kumar, learned Senior Counsel is that the confessional statement is acceptable if the parameters required under Section 32 of the POTA are met with. Section 32 of POTA reads as under :
32. Certain confessions made to police officers to be taken into consideration.
(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical or electronic device like cassettes, tapes or sound tracks from out of which sound or image can be reproduced, shall be admissible in the trial of such person or an offence under this Act or the rules made thereunder.
(2) A police officer shall, before recording any confession made by a person under Sub-section (1), explain to such person in writing that he is not bound to make a confession and that if he does so, it may be used against him :
Provided that where such person prefers to remain silent, the police officer shall not compel or induce him to make any confession.
(3) The confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it.
(4) The person from whom confession has been recorded under Sub-section (1), shall be produced before the Court of a Chief Metropolitan Magistrate along with the original statement of confession, written or recorded on mechanical or electronic device within forty-eight hours.
(5) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate, shall, record the statement, if any, made by the person so produced and get his signature or thumb impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon and thereafter, he shall be sent to judicial custody.
24. Contention of Mr. Sushil Kumar is that confessional statement was not recorded by the Superintendent of Police and the conditions precedent requisite for acceptance of confession were not carried out inasmuch as it was not explained to the accused that he is not to make confession and if he docs, it could be used against him; that right of silence was not explained;" that confession was not recorded in an atmosphere free from threat; that a person from whom a confession has been recorded was not produced before the Court of Metropolitan Magistrate or a Chief Judicial Magistrate along with original statement of confession; that Sub-section (5) of Section 32 has not been complied. Submission of the learned Counsel is that nothing has been recovered from the custody of the accused-appellant but he has been roped in solely and primarily on the basis of the confessional statement made by the co-accused. Incriminating the aforesaid submission it is propounded Mr. Sushil Kumar, learned Senior Counsel that under the facts and circumstances satisfaction the accused should be enlarged on bail. In this context we may profitably refer to the decision rendered in the case of State (NCT of Delhi) v. Navjot Sandhu, 2005 Cr.LJ 3950, wherein the Apex Court observed thus:-
The strict enforcement of the provisions as to judicial remand and the invalidation of confession merely on the ground of its non compliance may present some practical difficulties at times. Situations may arise that even after the confession is made by a person in custody, policy custody may still be required for the purpose of further investigation. Sending a person to judicial custody at that stage may retard the investigation. Sometimes, the further steps to be taken by the investigator with the help of the accused may brook no delay. An attempt shall however be made to harmonize this provision in Section 32(5) with the powers of investigation available to the police. At the same time, it needs to be emphasized that the obligation to send the confession maker to judicial custody can not be lightly disregarded. The police custody can not be given on mere asking by the police. It shall be remembered that sending a person who has made the confession to judicial custody after he is produced before the CJM is the normal rule and this procedural safeguard should be given its due primacy. The CJM should be satisfied that it is absolutely necessary that the confession maker shall be restored to police custody for any special reason. Such a course of sending him back to police custody could only be done in exceptional cases after due application of mind. Most often, sending such person to judicial custody in compliance with Section 32(5) soon after the proceedings are recorded by the CJM subject to the consideration of the application by the police after a lew days may not make material difference for further investigation. The CJM has a duty to consider whether the application is only a ruse to get back the person concerned to police custody in case he disputes the confession or it is an application made bonafide in view of the need and urgency involved. Therefore the non-compliance with the judicial custody requirement does not per se vitiate the confession, though its non-compliance should be one of the important factors that must be borne in mind in testing the confession.
25. Tested on the anvil of the aforesaid pronouncement submits Mr. Shushil Kumar, learned Senior Counsel for the appellant that the confessional statement on which the case against the appellant is structured is bound to collapse on the principle that when the infrastructure collapses, superstructure is bound to flounder. We have noted this facet only to highlight the same as that has a bearing on the case at hand.
26. At this juncture it is worth noting that the appellant was proceeded in Sessions Trial No. 425/2004 in the Court of Sessions Judge, Pratapgarh and the learned Trial Judge has delivered the judgment of acquittal under Section 120B read with Section 302 of the Indian Penal Code.
27. We have referred to the said order only to indicate that the accused-appellant has been acquitted of the said offence. The same has been required to be stated as the learned Senior Counsel for the appellant has claimed parity with the co-accused. Afcihay Pratap Singh alias Gopalji, who has been released on bail and the Apex Court, as has been indicated earlier, has allowed the bail order to remain on the ground that he had been released on bail and had been detained in custody for long.
28. To appreciate the question of parity in our earlier order dated 9-12-2005 we had directed the Director General of Police, Uttar Pradesh to file an affidavit with regard to the cases pending against the present appellant and Akshay Pratap Singh. The cases pending against the appellant as well as Akshay Pratap Singh has been given in a chart. We proceed to produce the chart hereunder:
(1) Pending cases against Raghuraj Pratap Singh alias Raja Bhaiya :
-----------------------------------------------------------
S.No. Crime Sections Police Status
No. Station
-----------------------------------------------------------
1. 222/92 279/427/342/365, IPC Kunda Pending before
ACJM,
Pratapgarh
2. 248/97 147/148/149/323/504/ Kunda Pending before
506/379, IPC ACJM, Kunda,
Pratapgarh
3. 30/00 395/397/447/44S/286/ Kunda Pending before
504, IPC ACJM,
Pratapgarh
4. 05/03 364/302/201, IPC Kunda Pending before
ACJM,
Pratapgarh
5. 10/03 3/4 POTA Act Kunda Pending before
(present ACJM,
case) Pratapgarh
6. 126/95 147/452/323/504/ Nawabganj Pending before
506, IPC Court of Sessions
Judge, Jabalpur,
Madhya Pradesh
7. 340- 147/148/149/323/ Nawabganj Pending before
A/97 504/427/341, IPC ACJM, Kunda,
Pratapgarh
8. 55/93 2(1) Gangsters Act Hathi- Pending before
gawan Gangsters Court,
Allahabad.
-------------------------------------------------------------
(II) Pending cases against Akshay Pratap Singh alias Gopalji :
-------------------------------------------------------------
Sr.No. Crime Sections Police Status
No. Station
-------------------------------------------------------------
1. 118/93 25, Arms Act Jethwara Pending before
JM, Pratapgarh
2. 248/97 147/148/149/323/ Kunda Pending before
504/506/379, IPC ACJM, Kunda,
Pratapgarh
3. 710/97 395/397/447/448/ Kunda Pending before
286/504, IPC ACJM, Pratapgarh
4. 30/00 395/397/447/448/ Kunda Pending before
286/504, IPC ACJM,
Pratapgarh
5. 10/03/05* 3/4 POTA Act Kunda Pending before
(present ACJM,
case) Pratapgarh
6. 126/95 147/452/323/504/ Nawabganj Pending before
506, IPC Court of Sessions
Judge, Jabalpur,
Madhya Pradesh
7. 65/98 147/148/149/504/ Manikpur Pending before
506/307, IPC ACJM, Kunda
Pratapgarh
-----------------------------------------------------------
(3) Pending cases against Akshay Pratap Singh alias Gopalji:
Thus, apart from the present case under POTA, there are 7 criminal cases pending against Raghuraj Pratap Singh alias Raja Bhaiya and 6 criminal cases pending against Akshay Pratap Singh alias Gopalji.
29. On comparison of the cases it is noticeable that in the year 1993 the appellant was booked under Section 2 (1) of the U.P. Gangsters' Act and in the year 2003 he was booked under Sections 364, 320 and 201 of the Indian Penal Code. It is noticed that he has spent more than fifteen months in custody under POTA. Submission of Mr. Sushil Kumar, learned Senior Counsel is that looking to the period of detention in custody; the conduct shown by the accused; his immediate resignation from the office; and his non-interference, the charge framed under Section 3(3) of the POTA against the appellant, which lessens the gravity of the offence are to be understood in proper perspective and he should be released on bail. The learned Senior Counsel further submitted that though some cases are pending against the accused, it can not be deduced that he would tamper with the evidence on record. It is urged by him that the case has been transferred to the State of Madhya Pradesh as the State of Uttar Pradesh had withdrawn the cases against him. The learned Counsel further submitted that the material brought on record are quite sketchy and scanty though charge has been framed. The learned Counsel further submitted that there can be no apprehension that the presence of the accused would not be secured at the trial.
30. Countering the aforesaid facets submitted by Mr. Surendra Singh, learned Senior Counsel and Mr. T.S. Ruprah, learned Additional Advocate General for the State of M.P. that the witnesses are scared of the accused-appellant and there is immense possibility of his tampering with the witnesses and the collective interest warrants that he should not be enlarged on bail. Mr. Singh has apprised us that the statements of three witnesses have been recorded, who have chosen to remain anonymous and they have stated that the accused-appellant alongwith his father has put a scare into them at the time of election in the year 1993; and that he has got weapons viz. AK-47 and AK-56 rifles in his house. As far as parity is concerned, the learned Counsel for the respondents have submitted that doctrine of parity is not attracted to the case at hand.
31. Having heard the learned Counsel for the parties, we are disposed to think that following factors weigh in favour of the appellant:--
(a) Charge has been framed under Section 3(3) of the POTA and there is no charge as regards possession of certain unauthorised arms as contemplated under Section 4(b) of the POTA.
(b) The foundation of filing of charge-sheet fundamentally rests on the confession of the co-accused, Uday Pratap Singh, the father of the accused-appellant and the same, as we are inclined to think albeit prima facie, is not in consonance with Section 32 of the POTA.
(c) In the confessional statement the co-accused has stated that the weapon had been given by the accused-appellant 3-4 years back to him and the statement was recorded in the year 2003.
(d) The accused-appellant has remained in custody for more than fifteen months under the POTA and the rigour of 49 (7) of POTA gets ostracised.
(e) He was enlarged on bail by the Designated Court at Kanpur Nagar, Uttar Pradesh and there is no material brought on record that he has abused his liberty in any manner whatsoever.
(f) The doctrine of parity between the accused-appellant and Akshay Pratap Singh whose release on bail has not been disturbed by the Apex Court gets attracted.
(g) There is no reason of apprehension that he would not co-operate with the trial and his presence can not be ensured.
(h) The fact situation tilts in favour of the appellant in the absence of any concrete material that he is likely to tamper with the witnesses and further the apprehension in the mind of the witness who is represented by Mr. Surendra Singh, learned Senior Counsel should be reasonable but not a spacious one.
(i) He has been acquitted in the case which was instituted against him under Section 302 along with other offences of the Indian Penal Code.
32. At this juncture, we should note the factors which have been accentuated by the learned Counsel opposing the prayer for bail against the accused-appellant. They can be categorised as under :--
(i) There are certain criminal cases pending against the accused-appellant.
(ii) The offence, as alleged to have been committed by him has some grievous connotation.
(iii) There are cases pending against him and as has been pointed by Mr. Surendra Singh, learned Senior Counsel, Mr. R.S. Patel and Mr. T.S. Ruprah, learned Additional Advocate Generals for the State they have their own gravity and the witnesses are scared of him and if he is enlarged on bail he would create an atmosphere of fear which would ostracise in essentiality the conception of fair trial.
33. At this juncture, we may profitably refer to the decision rendered in the case of Prakash Kumar alias Prakash Bhutto v. State of Gujarat , wherein the Apex Court in Paragraphs 43 and 44 has expressed the view as under :--
43. Having said so, we also notice the note of caution of this Court in Kartar Singh in Para 352 (SCC p. 707) as under :--
352. It is true that on many occasions, we have come across cases wherein the prosecution unjustifiably invokes the provisions of the TADA Act with an oblique motive of depriving the accused persons from getting bail and in some occasions when the Courts are inclined to grant bail in cases registered under ordinary criminal law, the investigating officers in order to circumvent the authority of the Courts invoke the provisions of the TADA Act. This kind of invocation of the provisions of misuse and abuse of the Act by the police. Unless, the Public Prosecutors rise to the occasion and discharge their onerous responsibilities keeping in mind that they are prosecutors on behalf of the public but not the police and unless the presiding officers of the Designated Courts discharge their judicial functions keeping in view the fundamental rights particularly of the personal right and liberty of every citizen as enshrined in the Constitution to which they have been assigned the role of sentinel on the qui vive, it can not be said that the provisions of TADA Act are enforced effectively in consonance with the legislative intendment.
44. In our view, the above observation is eloquently sufficient to caution police official as well as the Presiding Officers of the Designated Courts from misusing the Act and to enforce the Act effectively and in consonance with the legislative intendment which would mean after the application of mind. We reiterate the same.
34. We have referred to the aforesaid decision as Mr. Sushil Kumar, learned Counsel appearing for the accused-appellant has submitted that the detention of the appellant in custody would be an anathema to personal liberty which is a constitutional guarantee and there should not be deprivation of the same without taking recourse to due procedure established by law. Submission of the learned Counsel for the appellant is that it has to be borne in mind that each case has its own facts and in the case at hand the nature and character of materials that have been brought on record do not warrant further detention of the accused-appellant should be admitted to bail.
35. Regard being had to the facts and totality of the circumstances of the case and the material brought on record, the foundation of accusations, the validity of confessional statement, we are inclined to admit the accused-appellant to bail subject to the following conditions :--
(A) The accused-appellant shall furnish a bail bond of Rs. 10 lakhs (Rupees ten lakhs) only with two solvent sureties for the like amount to the satisfaction of the Designated Court.
(B) The appellant shall appear on each date when the case is fixed before the Designated Court.
(C) The appellant shall appear before the Police Station Civil Lines, Jabalpur on the last Sunday of every month between 2 P.M. -4P.M. (D) The accused shall surrender his Passport, if any before the Designated Court.
(E) The accused shall not tamper with the evidence brought on record or do anything which would create any impediment in the fair trial.
(F) He shall not enter into the District of Pratapgarh in the State of U.P. except on those days when his presence is required in respect of cases pending in the Courts situated in the said district.
36. Ex consequenti, the appeal is allowed.