Karnataka High Court
Mohammed Ali Khan vs State Of Karnataka on 30 March, 2022
Author: B. Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO.1444 OF 2021
BETWEEN:
MOHAMMED ALI KHAN,
S/O LATE ANWAR KHAN,
AGED ABOUT 45 YEARS,
R/AT CHINNAVENKATACHALA,
PILLAI STREET, SATYAMANGALAM,
ERODE (TAMIL NADU) - 638 401.
... APPELLANT
(BY SRI SYED AHMED, ADV. FOR SRI JUNAID AHAMED,
ADVOCATE)
AND:
STATE OF KARNATAKA,
THROUGH VYALIKAVAL P.S.,
(BY CCB), BENGALURU,
KARNATAKA, REPRESENTED BY SPP,
HIGH COURT BUILDING,
BANGALORE - 560 001.
... RESPONDENT
(BY SRI V.S. HEGDE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 21(4) OF NIA ACT CR.PC PRAYING TO SET
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ASIDE THE BAIL REJECTED ORDER IN S.C.NO.381/2015
CONNECTED WITH 1347/2016 DATED 26.08.2021 IN
COURT OF XLIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE (SPECIAL COURT FOR NIA CASES) AT
BENGAURU AND ENCLARGED THE APPELLANT ON BAIL
FOR THE OFFENCE PUNISHABLE UNDER SECTION 120B,
121, 121-A, 123, 212, 201, 307, 332, 435 AND 427 OF
IPC, SECTIONS 3,4,5 AND 6 OF EXPLOSIVE
SUBSTANCES ACT, SECTION 4 OF THE PREVENTION OF
DAMAGES TO PUBLIC PROPERTY ACT AND SECTIONS
13,15,16,17,18,19 AND 20 OF THE UNLAWFUL
ACTIVITIES PREVENTION ACT, 1967.
THIS CRIMINAL APPEAL COMING ON FOR
ADMISSION THIS DAY, B.VEERAPPA J, DELIVERED
THE FOLLOWING:
JUDGMENT
Accused No.18 has filed the present criminal appeal under the provisions of Section 21(4) of the National Investigation Act (for short 'NI Act') against the impugned order dated 26.08.2021 made in S.C.No.1347/2016 C/w S.C.No.381/2015, rejecting the regular bail application filed by him under Section 439 of the Code of Criminal Procedure.
2. Brief facts of the case are:
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It is the case of the prosecution that an explosion of a bomb took place in Malleshwaram, Bengaluru.
Accordingly, the jurisdictional police have arrested several persons, who were involved in the said incident.
During the course of investigation, accused No.3- Kitchen Buhari made a statement before the police on 12.05.2013, wherein in one place, he stated the involvement of one Ali Khan Kutty in the incident. After the said statement, the said Ali Khan Kutty was present, when the blast material was alleged to have been exchanged between the other accused. However, neither the name of the father of the present accused, nor the physical description, address and other details have been mentioned in the alleged statement of accused No.3. Hence, the present appeal is filed by the appellant-accused No.18.
3. It is further case of the prosecution that the statements of other witnesses, namely A.Mohan Raj- CW.114, Jameela-CW.119, V.Shanmugam Bharathi- CW.151, Mohammed Mubin-CW.166 and B.Marimuttu- 4 CW.177 and others were also recorded by the police. Again, none of the witnesses mentioned anything about the description of said Ali Khan Kutty. As per the statement of the accused/witnesses, it appears that Ali Khan Kutty is a resident of Maliupalyam in Tirunalveli District, Tamilnadu.
4. It is further contended that the appellant has been wrongly arrested and the charge sheet filed by the police on the basis that the appellant, who is Mohammed Ali Khan is the same Ali Khan Kutty as named by accused No.3 in his statement. The appellant is resident of Sathyamangalam, which is more than 700 kms away from Meliupalyam. Further, it is contended that no recovery has been made at the instance of the present appellant. There is no evidence to show that the appellant was in touch with any of the accused either through mobile phone or through any other means. There is no test identification parade of the appellant conducted to show that the present appellant was involved in the incident. Even, charge sheet filed 5 against the appellant on 11.11.2016, nothing has been mentioned regarding the identification of the present appellant. Thereby, the appellant has been wrongly arrested and charge sheeted. Therefore, the application has been filed by the appellant under Section 439 of Cr.P.C to release him on bail.
5. The learned Special Public Prosecutor before the trial Court has filed objections for the said application and contended that the offences alleged against the accused were serious in nature, some of which are punishable with imprisonment for life or death sentence. This Court, after verifying the entire charge sheet, has framed the charges against the present appellant-accused No.18 and others, in case charges are established, the applicant is liable for conviction either for life imprisonment or death sentence. The trial Court has already come to the conclusion that there is a prima facie case and hence, framed the charges against this accused and others.
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6. It is further contended that the application is not maintainable as the accused has already filed bail applications on two occasions and the same were rejected by this Court. This application is filed on frivolous grounds as there is no substantive changed circumstances to file fresh application. It is further contended that the Hon'ble Supreme Court in the case of G.R.Ananda Babi Vs. State of Tamil Nadu and another in SLP (Crl) No.213/2021, has deprecated the practice of allowing fresh bail applications on the specious grounds of changed circumstances. It is stated that the framing of the charge is not a changed circumstance. In this case, the applicant is the same Ali Khan Kutty, who has been named by the other accused. The appellant-accused is a founder member of the banned terrorist organization-'Al-Umma'.
7. It is further contended that the said terrorist organisation caused serial explosions in Sri L.K.Advani's rally in 1998, at Coimbatore and the applicant/accused was the prime accused in the said case for supplying the 7 explosives and he has undergone life imprisonment for the same. The applicant is a habitual offender and has been involved in nine different crimes, as mentioned in detail in the objections. In Coimbatore bomb blast explosion case, more than 58 persons died and after serving the sentence, the applicant has once again indulged in anti-national, seditious terrorist activities. Even in 1998 Kerala Train Blast case, this accused was the prime accused and he was involved in almost all bomb blast cases carried out by 'Al-Umma' terrorist organization, etc.
8. The trial Court considering the aforesaid pleadings framed the point for consideration as under:
"Whether the appellant-accused No.18 has made out ground for grant of bail under Section 439 of Cr.P.C?"
9. After considering the material on record, the trial Court answered the point in the negative holding that the accused has not made out any ground to grant 8 bail and recording the findings that after the arrest of the appellant-accused, his detailed voluntary statement was recorded on 20.08.2016. The records further disclose that the accused was produced before the committal Court on 16.08.2016 and a perusal of the order sheet of the committal Court reveals that the accused has not stated before the committal Court that his name is Mohammad Ali Khan and not Ali Khan Kutty as mentioned in the records. The records further disclose that a Mahazar, dated 16.08.2016 was conducted when the accused was in police custody and a mobile phone was recovered, which is reported in PF.No.16/2016 dated 16.08.2016. The documents prima facie reveal that the accused along with accused No.3 and others, taken part in the conspiracy that took place for causing explosion at BJP Office, Malleshwaram, Bengaluru and so also, associated in transporting the explosives and handing over the same to accused No.9. The trial Court further recorded a finding that the accused has been involved in several other cases and, 9 thereby, he is not entitled for grant of bail, accordingly, the application was rejected. Hence, the present appeal has been filed.
10. We have heard learned counsel for the parties.
11. Sri Syed Ahammad on behalf of Sri Junaid Ahammed, learned counsel for the appellant contended with vehemence that the trial Court committed an error in rejecting the regular bail to the appellant without considering that the appellant has been under trial for more than 5 years even there is no chance of starting the trial in the near future as there are 312 witnesses in this case.
12. He further contended that there is no sanction taken under Section 45(2) of Unlawful Activities (Prevention) Act, 1967 (for short 'UAP Act') against the appellant. The sanction which was taken 2½ years before the arrest of the appellant, was against so-called Ali Khan Kutty a resident of Melupalyam, 10 Thirunelvali District, Tamilnadu. Therefore, the provisions of UAP Act cannot be attracted against the appellant and invoking the said provisions is a gross violation of the said provisions of the Act.
13. He further contended that the appellant has been suffering from heart ailment from many years. According to the medical examination report, which was last done on 06.01.2017 while undergoing imprisonment at Jayadeva Institute of Cardiovascular Sciences and Research Hospital, where the appellant was admitted for undergoing Angiogram Surgery. It was diagnosed that he has 'triple vessel disease', for that, he has to undergo bypass surgery. It is also contended that now the age of the appellant is 52 years and day by day, his heart and health condition is worsening.
14. He further contended that the appellant has been wrongly implicated in the case by the prosecution by wrongly alleging that he is Ali Khan Kutty named in 11 the statement of one of the accused and witnesses. He further contended that the appellant has never resided in Melupalayam and he is a resident of Satyamangalam which is 700 kms from Melupalayam. There is no test identification parade that was conducted by the prosecution to identify the appellant, no overt-act is attributed to the appellant and no recovery has been made at the instance of the appellant. There is no material against the appellant, and thereby, he is entitled to grant of bail. Hence, he sought to allow the appeal.
15. In support of his contentions, learned counsel for the appellant, relied upon the following:
a) Dictum of the Hon'ble Supreme Court in the case of Shaheen Welfare Association Vs. Union of India and others reported in 1996 (2) SCC 616 (para 13).
b) Dictum of the Division Bench of Kerala High
Court (sitting at Ernakulam) dated
17.03.2022 in Crl.RP.No.732/2019 to the 12 effect that in the absence of any sanction within a time, the trial Court was not justified in rejecting the application for bail.
c) Dictum of the Hon'ble Supreme Court in the case of Rangku Dutta @ Ranjan Kumar Dutta Vs. State of Assam made in Crl.A.No.2307/2009, to the effect that in absence of any approval or sanction, rejection of the bail application by the trial Court cannot be sustained.
16. Per contra, Sri V.S.Hegde, learned Additional SPP-II for respondent-State, while justifying the order passed by the trial Court contended that the very appeal filed by the accused is not maintainable and the same is liable to be dismissed. He further contended that this is the third successive application filed for grant of bail. Earlier, he had filed two bail applications which had been rejected by the trial Court. He further contended that the present bail application is filed on the ground 13 that charges have been framed, but the same is not a changed circumstance and cannot be raised at this stage. He further contended that the trial Court took cognizance as long back i.e. on 24.02.2013 and he has not challenged the same. Now, he cannot raise all the questions with regard to sanction, though the State Government accorded the sanction on 05.05.2014 which is the time stipulated. He further contended that the appellant is also called as Khan Kutti and he is a founder member of the banned terrorist organization, i.e. Al- Umma. The said terrorist organisation caused serial explosions at Sri L.K.Advani's rally in 1998 in Coimbatore and he was involved in more than 9 cases. He further contended that there was material against the present accused. The trial court, considering the entire material on record, has rightly rejected the bail application. Therefore, he sought to reject the application.
17. He further contended that in view of the provisions of Sub-Section (5) of Section 43D of the UAP 14 Act, 1967, since there is a prima facie case against the appellant, he is not entitled for bail which is rightly rejected by the trial Court.
18. In support of his contention, the learned SPP-II relied upon the judgment of the Co-ordinate Bench of this Court made in Crl.A.No.1232/2021 A/w Crl.A.No.885/2021 wherein this Court considering the similar circumstances, has rightly confirmed the order passed by the trial Court and rejected the bail application.
19. He further relied upon the dictum of Hon'ble Supreme Court in the case of National Investigation Agency Vs. Zahoor Ahmad Shah Watali reported in (2019) 5 SCC 1 and the trial Court relied upon the very judgment and rejected the bail application. Therefore, he sought to dismiss the present appeal filed by the appellant-accused No.18.
20. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only 15 point that arises for our consideration, in the present appeal is:-
"Whether the accused has made out a case to interfere with the impugned order passed by the trial Court rejecting the bail application filed under Section 439 of Cr.P.C in exercise the power of this Court under the provisions of Section 21(4) of the NI Act, in the peculiar facts and circumstances of the present case?"
21. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire materials including the original records carefully.
22. It is not in dispute that the Vyalikaval Police registered a case in Crime No.118/2013 against the present accused and others under the provisions of Sections 120B, 121, 121A, 123, 307, 332, 435, 201 and 475 of IPC and Sections 3, 4, 5 and 6 of the Explosive Substances Act, 1908 and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 and 16 Sections 10, 11, 13, 15, 16, 17, 18, 19 and 20 of Unlawful Activities (Prevention) Act, 1967. After investigation, the jurisdictional Investigating Authority filed a charge sheet.
23. It is also not in dispute that the main charge sheet filed on 08.10.2013 and additional charge sheet filed on 09.11.2016 and subsequently, taken cognizance. Admittedly, the charge sheet filed by the Investigating Officer under the Special Act and taking cognizance of the case under the provisions of Section 45 of the UAP Act was not at all challenged by the appellant. The charge sheet filed by the jurisdictional Investigating Authority clearly depicts that the present accused No.18 and other accused persons conducted various blasts in the entire Country, thereby, wage war against India. It is further revealed that there were several secretive meetings held by the present accused No.18 and other accused persons between October 2012 and April 2013, in Coimbatore, Tamilnadu i.e. at the residence of accused No.3-Kitchen Bhuhari and 17 accused No.13-Zulfikar Ali, Near Eswari Koyil, Snagam Marriage Hall and Azadnagar Play Ground and at Bharathi Complex, Melupalyam, Thirunalveli. In the said meetings, accused Nos.3 and 8 motivated the other accused persons to get involved in Jihadi activities to wage war against India and to damage the economic fabric of the Country to take revenge against Hindus thereby ensuring justice to Muslims and upholding Islam, the Islamisation of India and discussed the plan to execute the bomb blast at Bengaluru in particular to avenge against the ruling party-B.J.P. Government of Karnataka.
24. The charge sheet further depicts that all the accused persons including the present appellant were members of terrorist gang with unlawful common intention of waging war against India, damaging the economic fabric of the Country, to Islamise India, and destabilising Governments by engineering violence in India, thereby disturbing the National Unity, Integrity and defy the sovereignty of India, involved themselves 18 in terrorist activities, collected explosive substances illegally and transported them to where they prepared the live bomb and planted it at the place of public movement. Though knowing fully well that if the bomb exploded, there would be destruction of public property and loss of human lives and serious injuries to the public with the sole definitive intention of causing death and injury to the public. They executed the said bomb blast resulting in causing grievous injuries to 12 police officers of KSRP 4th Battalion who were on duty, Lisha and other public persons and also causing damage to the public property. Further the accused also caused the disappearance of evidence to shield the offenders. Therefore, the charge sheet came to be filed and the final report submitted under the provisions of Section 173 of Cr.P.C.
25. The bail application is consdiered under the provisions of Sub-Section (5) of Section 43D of the UAP Act, it clearly depicts, which reads as under: 19
"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 believing that the accusation against such person is prima facie true."
A careful perusal of the said provisions, clearly depicts that no person accused of an offence punishable under Chapter IV and VI of this Act shall, if in custody, be released on bail 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 perusal of the case diary or the report made under Section 173 of Cr.P.C., is of the opinion that there are no reasonable grounds for believing that 20 the accusation against such person is prima facie true. In view of the said mandatory provisions, the trial Court justified in rejecting the application.
26. It is not in dispute that the present bail application is the third successive bail application filed by the present appellant. As earlier, two bail applications filed by the appellant have been rejected by the trial Court and there must be a substantive changed circumstance to file the present application. In the case of G.R.Ananda Babi (Supra) the Hon'ble Supreme Court deprecated the practice of allowing fresh bail applications on the specious grounds of changed circumstances. Mere filing of charge sheet does not change circumstance in the present case, thereby, the trial Court has rightly rejected the bail application.
27. Considering the entire materials on record, it clearly depicts that as can be seen from the charge sheet dated 09.11.2016, the present appellant was an active worker of 'Al-Umma' which is an association 21 involved in unlawful activities and he is also said to have suffered conviction and imprisonment for 10 years, pertaining to the Coimbatore bomb blast case. The appellant was also involved in the case of attempt to murder of Sri L.K.Advani to take revenge for killing of one Imam Ali of 'Al-Umma' organisation in an encounter by Karnataka Police, in the months of October and April, 2012 under the leadership of accused No.3. The material on records also depicts that after the arrest of the present accused, his detailed voluntary statement was recorded on 20.08.2016 and produced before the committal Court on 16.08.2016. A perusal of the order sheet of the committal Court reveals that the accused has not stated before the committal Court that his name is Mohammad Ali Khan and not Ali Khan Kutty as mentioned in the records. Further, it is depicted that a Mahazar dated 16.08.2016 was conducted when the accused was in the Police custody and a mobile phone was recovered, which is reported in PF.No.16/2016 dated 16.08.2016. It is further revealed that the 22 accused along with accused No.3 and others, taken part in the conspiracy that took place for causing explosion at BJP Office, Malleshwaram, Benglauru and so also associated with transporting explosives and handing over the same to accused No.9.
28. Considering the aforesaid materials on record, the trial Court was of the opinion that the accused is not entitled for bail in view of provisions of Sub-Section (5) of Section 43-D of the UAP Act, accordingly, rejected the bail petition.
29. The Hon'ble Supreme Court while considering the provisions of Sub-Section (5) of Section 43-D of the UAP Act in the case of National Investigation Agency Vs. Zahoor Ahmad Shah Watali reported in (2019) 5 SCC 1 at paragraph 21, 22, 23, 53, 54 and 55, has held as under:
"21. Before we proceed to analyse the rival submissions, it is apposite to restate the settled legal position about matters to be considered for deciding an application for bail, to wit:23
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with; and
(viii) danger, of course, of justice being thwarted by grant of bail. (State of U.P. v. Amarmani Tripathi14).
22. When it comes to offences punishable under special enactments, such as the 1967 Act, something more is required to be kept in mind in view of the special provisions contained in Section 43-D of the 1967 Act, inserted by Act 35 of 2008 w.e.f. 31-12-2008. Sub-sections (5), (6) and (7) thereof read thus:
24
"43-D. Modified application of certain provisions of the Code. -(1)-(4) (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 believing 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 subsections (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 illegally except in very 25 exceptional circumstances and for reasons to be recorded in writing."
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 believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions 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 considering 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 Psychotropic 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 offences. There is 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 satisfaction 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 26 materials/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 overcome 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 establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of accused "not guilty" of such offence as required under 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 degree 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 Sharma12, wherein a three- Judge Bench of this Court was called upon to consider the scope of power of the Court to grant bail. In paragraphs 36 to 38, the Court observed thus: (SCC pp.316-17) 27 "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 enlarged on bail, he would not commit any offence whatsoever?
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 restrictions 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 committing 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 28 would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering 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 paragraphs 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 maintain a delicate balance between a 29 judgment of acquittal 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 considering an application for grant of bail, although detailed 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 applicant 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 regard to the provisions contained 30 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 accused during the investigation may not justify a judgment 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 evidence adduced at the trial, without in any manner being prejudiced thereby.
47. In Kalyan Chandra Sarkar v. Rajesh Ranjan15 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 expected of the court considering a bail application. Still one should not forget, as observed by this Court in the case Puran v.
Rambilas16: (SCC p. 344, para 8) "8. ...Giving reasons is different from discussing merits or demerits.
At the stage of granting bail a 31 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 large number of witnesses who were examined after the respondent was enlarged on bail had turned hostile and there are complaints 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 32 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 witnesses made against the respondent.'
48. In Jayendra Saraswathi Swamigal v. State of T.N.17 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 33 State v. Jagjit Singh18 and Gurcharan Singh v. State (UT of Delhi)19 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.' "
53. The appellant has relied on the exposition in Salim Khan10, to contend that in cases where the High Court adopted a totally erroneous approach, as in the present case, discarding the crucial material/evidence which is referred to in the report under Section 173 Cr.P.C. and presented before the Designated Court, then the order granting bail by the High Court cannot be countenanced. The argument of the respondent is that the said decision would make no difference as it is concerning an application for cancellation of bail made by the informant. However, we find force in the argument of the appellant that the High Court, 34 in the present case, adopted an inappropriate approach whilst considering the prayer for grant of bail. The High Court ought to have taken into account the totality of the material and evidence on record as it is and ought not to have discarded it as being inadmissible. The High Court clearly overlooked the settled legal position that, at the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities. The Court is expected to apply its mind to ascertain whether the accusations against the accused are prima face true. Indeed, in the present case, we are not called upon to consider the prayer for cancellation of bail as such but to examine the correctness of the approach of the High Court in granting bail to the accused despite the materials and evidence indicating that accusations made against him are prima facie true.
54. In a decision of this Court in Chenna Boyanna Krishna Yadav13, to which reference has been made, the Court has restated the twin conditions to be considered by the Court before grant of bail in relation to MCOCA offences. We are of the view that in the present case, the Designated Court rightly opined that there are reasonable grounds for believing that the 35 accusation against the respondent is prima facie true. As we are not inclined to accept the prayer for bail, in our opinion, it is not necessary to dilate on other aspects to obviate prolixity.
55. A fortiori, we deem it proper to reverse the order passed by the High Court granting bail to the respondent. Instead, we agree with the conclusion recorded by the Designated Court that in the facts of the present case, the respondent is not entitled to grant of bail in connection with the stated offences, particularly those falling under Chapters IV and VI of the 1967 Act."
30. In view of the provisions of the UPA Act and the entire material on record, we are of the considered opinion that the accused has not made out any case for inference by this Court for grant of bail.
31. Learned counsel for the appellant relied upon the dictum of the Hon'ble Supreme Court in the case of Rangku Dutta @ Ranjan Kumar Dutta Vs. State of Assam made in Crl.A.No.2307/2009 wherein the statutory appeal was filed under Section 19 36 of Terrorist and Disruptive Activities (Prevention) Act, 1987 against the final order passed on 10.09.2009 by the Designated Court TADA wherein the Hon'ble Supreme Court laid down the principle that no information about the commission of an offence under the Act can be recorded by the Police without prior approval of the District Superintendent of Police. Therefore, the requirement of prior approval must be satisfied at the time of recording the information. If a subsequent investigation is carried on without a proper recording of information by the District Superintendent of Police in terms of Section 20(A)(1) of the Act, that does not cure the inherent defect of recording the information without the prior approval of the District Superintendent of Police. The said case was decided on merits of the appeal. Admittedly, though the contention raised by the learned counsel for the appellant that there was no sanction as contemplated under Rule IV of the Unlawful Activities Prevention and Acknowledgment Sanction Rule, 2008. The facts remains that the said 37 rule proposed to the provisions of Section 45 of the UAP Act. Section 45 of the UAP Act clearly depicts that no court shall take cognizance of any offence under Chapter III without the previous sanction of the Central Government or any officer authorized by the Central Government in this behalf and under Chapters IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and where such offence is committed against the Government of a foreign country without the previous sanction of the Central Government. Admittedly, in the present case, on the recommendation made by the State Government sanction granted in the year 2014, the learned Judge, after filing the charge sheet, took the cognizance and proceeded to trial. Admittedly, the filing of the charge sheet or taking cognizance has not been challenged and the sanction made by the Government has also not been challenged. Therefore, the said judgment relied upon by the learned 38 counsel for the appellant has no application to the facts and peculiar circumstances of the present case.
32. Learned counsel for the appellant also relied upon the judgment of the Hon'ble Supreme Court in the case of of Shaheen Welfare Association Vs. Union of India and others reported in 1996 (2) SCC 616, which was the case for grant of bail under TADA. The said case has no application to the facts and circumstances of the present case. Admittedly, the charge sheet filed in the present case prima facie depicts that there is a serious overt-act against the accused. Admittedly, the charge sheet has not been challenged. In view of the provisions of Section 43-D sub-clause 5 of the UAP Act, a proviso of the act, the bail cannot be granted. Therefore, the said judgment relied upon by the learned counsel for the appellant has no application to the facts and peculiar circumstances of the present case.
39
33. In view of the aforesaid reasons, the point raised in the present appeal is answered in the affirmative by holding that the trial Court is justified in rejecting the bail application filed by the present appellant-accused No.18 under the provisions of Section 439 of Cr.P.C. The appellant has not made out any ground to interfere with the impugned order passed by the trial Court rejecting bail application in exercise of the appellate powers of this Court under the provisions of Section 21(4) of NI Act.
34. In view of the above, we pass the following:
ORDER
(i) The appeal filed by accused No.18 is hereby dismissed..
(ii) The impugned order dated 26.08.2021
made in S.C.No.1347/2016 and
S.C.No.381/2015 on the file of the XLIX Additional City Civil and Sessions Judge, 40 (Special Court for trial of NIA Cases) Bengaluru in rejecting the bail application filed by the appellant-accused No.18 under the provisions of Section 439 of Cr.P.C. is hereby confirmed.
(iii) Though the crime registered in Cr.No.118/2013 and later has become S.C.No.1347/2016 and S.C.No.381/2015, we are in the year 2022, it is the duty of the trial Court to ensure the speedy disposal of the main case to ensure within the protective ambit not only due procedure and fairness and also to offer justice and speedy trial to all the parties. .
(iv) The trial Court is directed to expedite the trial subject to co-operation of both the appellant and other accused persons as well as State. We hope and trust that both the parties will co-operate with the trial Court in 41 order to ensure an expeditious disposal of the main case itself on merits strictly in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE KTY