Punjab-Haryana High Court
Swami Assemanand vs National Investigation Agency on 28 August, 2014
Bench: S.S. Saron, Lisa Gill
Crl. Appeal No.D-539-DB of 2014 (O & M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No.D-539-DB of 2014 (O & M)
Date of decision: 28.08.2014
Nabha Kamar Sarkar @ Swami Asima Nand
.....Appellant
versus
National Investigation Agency
......Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MS. JUSTICE LISA GILL
Present: Mr. Satya Pal Jain, Senior Advocate with
Mr. Dheeraj Jain, Advocate,
Mr. Padamkant Dwivedi, Advocate
for the appellant.
Mr. S. S. Sandhu, Advocate NIA Special Prosecutor.
***
S.S. SARON, J.
This appeal has been filed by the appellant Nabha Kamar Sarkar @ Swami Asima Nand against the order dated 30.11.2013 whereby the application of the appellant for the grant of bail in NIA case No.09 dated 29.07.2010 for the offences under Sections 302, 307, 324, 326, 124-A, 438 and 440 of the Indian Penal Code ('IPC' - for short) and Sections 150, 151 and 152 of the Railways Act, 1989; besides, Sections 3, 4 and 6 of the AMIT KHANCHIPrevention of Damage to Public Property Act, 1984 and under the 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -2- provisions of the Unlawful Activities (Prevention) Act, 1967 has been dismissed. An appeal against an order passed by the learned Special Judge under the National Investigation Agency Act, 2008 ('NIA Act' - for short) is appealable under Section 21 of the NIA Act.
Train No.4001 UP Attari Express (Samjhauta Express) left Railway Station, Diwana at 11:53 pm on the intervening night of 18/19.02.2007. Two coaches of the said train i.e. GS No. 03431 and GS No.14857 had caught fire. A telephone message in this regard was received at Government Railway Police Station, Karnal from ASI Ranjit Singh, Police Post GRP, Panipat at 3:00 am on 19.02.2007. The initial investigations that were conducted showed that the two coaches had caught fire as a result of bomb explosions due to which 68 persons i.e. 64 civil passengers and 4 railways officials died; besides, 12 persons were injured. This seditious act of terrorism was committed with the object to kill passengers, railways and police officials in the train. Initial investigations were conducted by the Railway Protection Force/ Special Investigation Team of the Haryana Police.
The Government of India, Ministry of Home Affairs (Internal Security-I Division) (IS-I Desk) thereafter passed an order dated 26.07.2010, which was to the effect that the Central Government had received information from the Haryana Government about registration of FIR No.28 dated 19.02.2007 at Police Station Karnal for the offences under Sections 302, 307, AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -3- 124-A, 438 and 440 IPC; besides, Sections 3, 4 and 6 of the Explosive Substances Act, 1908; Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 and Sections 150, 151 and 152 of the Railways Act, 1989 relating to the bomb blast in the Samjhauta Express. In exercise of the powers conferred by Sub Section (4) of Section 6 read with Section 8 of the NIA Act, the Central Government directed the National Investigation Agency to take up the investigation of the aforesaid case and such other offences as may come to light during investigation. In terms of the said order, the investigations of the case relating to bomb explosion in the Samjhauta Express were taken up by the National Investigation Agency.
Case CR No.09/2010 dated 29.07.2010 was registered. In the investigation that was conducted by the National Investigation Agency, it was brought out that Train No.4001 UP Attari Express (Samjhauta Express) departed for Attari from platform No.18 of Delhi Railway Station at 10:50 pm on 18.02.2007. In consequence of a criminal conspiracy, the accused persons with the common intention and motive it is alleged had caused explosion in the train during the intervening night of 18.02.2007 and 19.02.2007 at about 11:53 pm while the train was passing Diwana Railway Station near Panipat. The train had sixteen coaches of which four were reserved coaches and the remaining were unreserved. Two of the unreserved coaches caught fire due to the explosion and 67 persons died while 13 AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -4- were injured who were taken to Safdarjung Hospital, New Delhi for treatment. Another person died at the said hospital due to which the number of those who died rose to 68 with 12 injured persons. During investigation, it was found that four Improvised Explosive Devices commonly known as 'IEDs' were placed in the unreserved compartments of the train and those that were placed in the 12th and 13th compartments had exploded which resulted in fire in the other compartments. An unexploded IED was found in the 15th compartment, which exploded while it was being defused by the technical persons. Another unexploded IED was recovered from a suitcase from the spot down the railway line on the railway track near the 15th compartment. The case according to the National Investigation Agency was one as a result of acts of terrorism carried out by a group of persons in pursuance of a criminal conspiracy with an intent to threaten the unity, integrity, security and sovereignty of India and to strike terror in the people of India and in foreign country. By the said act Indian Civilians, Government Officials and large number of Pakistani nationals were killed.
The appellant was initially arrested by the Central Bureau of Investigation ('CBI' - for short) on 19.11.2010 from Hyderabad. He made a confessional statement while in CBI custody on 18.12.2010 in the Court of Metropolitan Magistrate Central, Delhi. While in custody of the National Investigation Agency he made another confessional statement on 15.1.2011 in AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -5- the Court of Chief Judicial Magistrate, Panchkula. Later, the appellant retracted from his confessional statement on 8.4.2011. He submitted a written statement in the Court of the Chief Judicial Magistrate, Ajmer with a request to forward the same to the Special Court, NIA, Panchkula stating that he had retracted his statement dated 15.1.2011. According to the National Investigation Agency, the appellant admitted his involvement in the conspiracy to cause bomb blast in the Samjhauta Express Train in terms of his confessional statement. The investigation in the case were completed and a police report ('challan') was filed on 20.06.2011 in the Court of Special Judge under the NIA Act, Panchkula.
Shri Satpal Jain, Senior Advocate appearing with Shri Dheeraj Jain and Shri Padamkant Dwivedi, Advocates for the appellant has strongly contended that the prosecution case against the appellant is absolutely false and concocted and in any case even according to the prosecution, the appellant is not the principal accused. It is submitted that the trial in the case will be delayed inordinately in view of the large number of witnesses that have been cited. It is submitted that the incident had occurred on the intervening night of 18.02.2007 and 19.02.2007 and the appellant was arrested in the present case on 23.12.2010 and since then he has been in custody for a period of three years and eight months. The charges in the case were framed on 24.02.2014 and so far out of 299 witnesses, only 35 AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -6- witnesses have been examined and 7 given up; besides, 2 witnesses have died. The appellant, it is stated, is a respectable person. He has renounced the world and is 77 years of age, besides, he is well-educated and a M.Sc. in Physics. Therefore, according to the learned Senior Counsel his further incarceration in jail would be unnecessary as even otherwise, he is unable to tamper with any prosecution evidence or influence the prosecution witnesses. The appellant, was arrested on 19.11.2010 and remand was taken against him from the Court at Hyderabad. He was harassed continuously mentally as well as physically by the investigating team for 18 days. Several inducements were given to him to become an approver. Therefore, under threat he was compelled to make a statement before the Chief Judicial Magistrate, Panchkula insofar as the present case is concerned. Threats were held out against him that his brothers and other family members would be arrested and humiliated in case he did not make a statement. It is due to the threats held out to him and to save his family members and others, he is shown and alleged to have also made an extra judicial confession to a person namely Khaleem who was confined in Central Jail, Ambala as an accused. In fact he had never met any such person by the name of Khaleem nor interacted with him. The appellant was lodged in Tihar Jail and he was interrogated by an official by the name of Mr. Raja Balaji who handed over to him a typed written statement which was to be AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -7- made before the Magistrate. The appellant was informed that after his statement was recorded his custody would again be taken by the Police along with copy of the statement. The appellant was produced before the Metropolitan Magistrate Central at Delhi on 18.12.2010 where the said official along with others were present. Before the appellant entered the Court room, he was directed to follow the instructions and pressurized to name one Indresh Kumar as a person acquainted with the conspiracy. The appellant under compulsion made a statement before Shri Deepak Dabas, Metropolitan Magistrate Central at Delhi on 18.12.2010 and thereafter he was compelled to make a second statement before the Chief Judicial Magistrate at Panchkula on 15.01.2011. The said statement made before the Chief Judicial Magistrate, Panchkula insofar as the present case is concerned has been retracted on 08.04.2011. The Investigation Agency after his statement was recorded on 18.12.2010 before the Metropolitan Magistrate Central Delhi again got his custody on 22.12.2010 and it is alleged that he was humiliated; besides, tortured physically and mentally. According to the appellant, one Bharat Bhai was got by the National Investigation Agency and his statement was recorded by the Additional Superintendent of Police at NIA Camp, Panchkula on 29.12.2010. The said statement according to the appellant is only a reproduction of his statement dated 18.12.2010, which had already been published in a newspaper. The entire story set up by the Investigation AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -8- Agency is concocted against him and is based on the statement of Bharat Bhai. It is contended on behalf of the appellant that according to the National Investigation Agency, the appellant is stated to have had a meeting with Bharat Bhai as per his statement recorded under Section 161 of the Code of Criminal Procedure (Cr.P.C.-for short). According to the said statement, the appellant was introduced to Manoj, Sadhvi Pragya, Sandeep Dange, Lokesh Shamna, Amit and Ramji. According to this witness, they discussed about the Hindu situation and the appellant reportedly stated; "Bomb ka jawab bomb se dena chaiya" (A reply to a bomb attack should be given with a bomb). The other accused suggested that they would have to do something. Sandeep Dange stated that the Government had started Samjhauta Rail service to please the Muslims and Sandeep Dange stated; "Mein Samjhauta train ko hi udha doonga aur aap log sirf baatein karte rehna, mein apko batata hoon ki kaam kaisa hota hai" (He would blow up the Samjhauta Train, while the others would sit and talk only. He would show as to how work is done). It is submitted that the appellant is an ascetic and has renounced the world. He holds an academic degree of M.Sc in Physics and after completing his education he did not chase a worldly life and dedicated his life for the welfare of humanity. He worked for a long time without gain in the tribal students' hostel and worked for uplifting the tribal persons in Dang District of Gujarat. For the said object, he established the AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -9- Shabri Dham Ashram. The only allegation against him, it is submitted, is that he is said to have provided Rs.25,000/- and Rs.30,000/- to Manoj alias Sunil Joshi and in fact he is not the principal accused in the case. The role of planting bombs in the Samjhauta Express are attributed to Sandeep Dange and others. According to the prosecution, it is submitted that the blast cases including the Samjhauta Express had been planned by Sunil Joshi and executed by Sandeep Dange and Ram Chander Kalsangra. The appellant, it is submitted, is not involved in the crime and there is no evidence or material with the prosecution to show his involvement with the Samjhauta Express train blast for which he is being tried.
In response, Shri S. S. Sandhu, Advocate Special Prosecutor for National Investigation Agency has submitted that in fact the appellant himself has confessed his involvement in the case by his statement made before the Metropolitan Magistrate Central at Delhi on 18.12.2010 and then reiterated before the Chief Judicial Magistrate at Panchkula on 15.01.2011. He disclosed the facts and circumstances showing his involvement including involvement in the conspiracy and execution of the Samjhauta Express train blast. According to Shri Sandhu, the appellant and other accused entered into a criminal conspiracy on 18.02.2007 with an intent to threaten the unity, integrity and security of India; besides, strike terror in the people of India and in foreign country. With the said avowed object they planted AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -10- IEDs in the unreserved coaches of the Samjhauta Express which resulted in bomb blasts killing 68 persons and causing injuries to 12 persons. These included Indian and Pakistani travellers in the train. The explosion and fire in the train resulted in the incineration and destruction of several coaches of the train, which caused loss not only to human life but huge public property of the Indian Railways. The conspiracy to cause the blast was hatched and executed by a group of persons which included the appellant. Out of the eight persons whose involvement has been ascertained, only four have been arrested and one of the accused has died while the others are evading arrest. The National Investigation Agency has investigated the case and collected several documents as well as oral evidence to unravel the conspiracy planning, training, execution and role in respect of each accused including the appellant who had close links with Sunil Joshi, who has since died, but was the master mind behind the Samjhauta Express train blast and also the Mecca Masjid blast and a blast in Ajmer in 2007. The National Investigation Agency after taking over the investigation in the case probed all available leads and the possibility of all known terror groups including the jihadi terror groups like LeT, Al Qaida, SIMI etc. and the suspected persons associated with it. The first major breakthrough in the case came during the investigation of Malegaon bomb blast by the ATS Maharashtra in 2008 and the second breakthrough from the statement of the appellant under AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -11- Section 164 Cr.P.C. It is submitted that charges in the case have been framed and the trial is going on. Therefore, it would be inexpedient to extend the concession of bail to the appellant at this stage as he would interfere with and try to win over the prosecution witnesses which would be prejudicial to the prosecution case. It is submitted that the appellant is one of the key conspirators and there is sufficient evidence against him of his raising funds and perpetuating the offences in the schedule of the NIA Act. Therefore, he is not liable to be released on bail. According to Shri Sandhu, Bharat Bhai a resident of Valsat in Gujarat met the appellant in 1999 and he became his close associate. The appellant also met Pragya Singh and Sunil Joshi and they all became close to each other. All of them were upset with the Islamic jihadi terrorist attack on Hindu Temple and they propounded the theory of "bomb ka badla bomb" (revenge of a bomb, should be with a bomb). A meeting was held at Surat in October, 2005 and Indresh Kumar visited Shabri Dham. Sunil Joshi arranged a meeting of the appellant with Indresh Kumar at Shabri Dham and discussions were carried out of giving befitting replies to jihadi attacks. After the blast at Sankat Mochan Mandir in Varanasi in March, 2006, Sunil Joshi and the appellant held a meeting at Shabri Dham. The appellant exhorted to retaliate against the same by undertaking terrorist attacks on Islamic Religious sites. Sunil Joshi had represented that he could do the needful as he had some boys but that would entail heavy AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -12- financial expenses and logistics arrangements were required to be made. The appellant contributed Rs.25,000/- which he gave to Sunil Joshi and also directed him to visit various places in Uttar Pardesh and Jharkhand along with Bharat Bhai to meet resourceful Hinduwadi leaders. Sunil Joshi asked for more money but the appellant expressed his helplessness in giving more. Thereafter Sunil Joshi and Bharat Bhai briefed the appellant about their visits to Uttar Pardesh and Jharkhand in May, 2006. Sunil Joshi then requested the appellant to call a coordination meeting at the residence of Bharat Bhai for chalking out future strategies of their mission. A meeting of the conspirators attended by five persons mentioned in charge-sheet No.1 along with Amit Chauhan and Bharat Bhai was held in June, 2006. The appellant presided over the said meeting and they all agreed with the views of the appellant that "bomb ka jawab bomb sa dena chaiya" (A reply for a bomb, should be given with a bomb only). Sunil Joshi and Sandeep Dange had criticized the Hindu and the people like the appellant for inaction. It is submitted that it is the appellant who had suggested that bomb blast be caused at Malegaon, Ajmer, Hyderabad and the Samjhauta Express train and Sunil Joshi took the responsibility for the same as most of the passengers in the train would be Pakistani Muslims and he had already done some ground work; besides, Sunil Joshi represented that Sandeep Dange was an expert in making bombs and he would undertake the work. Sunil AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -13- Joshi after Diwali festival in 2006 met and informed the appellant that his boys had executed the Malegaon blast on 26.09.2006. Bharat Bhai and Sunil Joshi met at Karatmeshwar Mahadev Mandir at Balpur District Tapi on 16.02.2007 to celebrate Shivratri and Sunil Joshi informed that they would hear some good news in the next two-four days. Pragya and her associates Neera Singh, Ritesh Sharma and Sunil Joshi arrived at Shabri Dham on 20.02.2007. The appellant asked Sunil Joshi that the Samjhauta Express train blast had already taken place while Sunil Joshi was still sitting with him. The latter informed that the task was done by his men and he mentioned the name of Sandeep Dange and his men for having executed the bomb blast. The appellant then in 2007 gave Rs.40,000/- on demand to Sunil Joshi for carrying out bomb blast at Mecca Masjid at Hyderabad. Sunil Joshi visited the appellant at Shabri Dham in May, 2007 and showed him the news about the Mecca Masjid blast at Hyderabad in a Telgu Newspaper and claimed that the said work had been done by his men. Some days after the Ajmer blast on 11.10.2007 Sunil Joshi called the appellant and informed that he would hear about the said blast shortly. Some days later Sunil Joshi met the appellant and informed that the task had been done by his men. Sunil Joshi was murdered on 29.12.2007. The appellant got in touch with Col. P.S. Purohit and asked about the person who had committed the murder of Sunil Joshi. The appellant, it is stated, attended a meeting at AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -14- Nasik with Col. P. S. Purohit. He gave a speech there for starting a Hindu Organization namely Abhinav Bharat. The appellant also met two persons at Pune arrested in connection with the Malegaon blast case. The appellant met Sandeep Dange and Ram Chander Kalsangra and travelled with them in September/October, 2008. The appellant left Shabri Dham when he learnt about Devinder Gupta and Lokesh Sharma being involved in connection with Ajmer blast. He then stayed at village Atmalpur, Haridawar and impersonated as Swami Omakarnand. He obtained a fake ration card and voter ID card. He was arrested on 18.11.2010 by the CBI from village Atmalpur. During investigation he was taken to Thakur Ghar Valsad which is the residence of Bharat Bhai. The appellant disclosed and pointed out the place of conspiracy. He also disclosed the place of secret meeting held at Shabri Dham and also showed the place where he gave Rs.25,000/- to Sunil Joshi in March, 2006. He also disclosed the place at Shiv Mandir Balpur where Sunil Joshi informed him that he would receive good news in two-four days. Therefore, according to Shri Sandhu, keeping in view the involvement, propensity and inclination towards various criminal activities of such a scale, it would be improper, besides, imprudent to grant him the concession of bail and at the most this Court may order expeditious disposal of the trial for which the prosecuting agency would take all steps to cooperate.
According to learned Senior counsel for the appellant, AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -15- the prosecution case as against the appellant is based on three witnesses namely Bharat Mohan Lal Rateshwar alias Bharat Bhai, Sheikh Abdul Khaleem and Maqbul Bin Ali. It is submitted that in fact Bharat Bhai who is cited as a witness and in case the allegations made by him are taken to be correct, then he was liable to be nominated as an accused rather than set up as a prosecution witness as he is said to be a part of the so called conspiracy. Insofar as Sheikh Abdul Khaleem the other witnesses are concerned, Sheikh Abdul Khaleem was arrested as a SIM card was stated to have been purchased by him on the basis of false documents but he was questioned in connection with Mecca Masjid blast case by the Hyderabad Police and after remaining in jail, the case against him was dropped. The said witness is purported to be in a barrack close to that of the appellant and the appellant is stated to have made certain incriminating statements against himself to the said witness. The statement of Maqbul Bin Ali recorded on 08.06.2011 was in fact with a view to corroborate the alleged version of Sheikh Abdul Khaleem. It is submitted that the inmates at Chanchal Guda Jail at Hyderabad where the appellant was detained were predominantly Muslims and because of the allegations of the involvement of the appellant in the Mecca Masjid blast case, he was kept away from the other Muslims and in solitary confinement. There was, therefore, no occasion for the appellant to get in touch with Sheikh Abdul Khaleem or Maqbul Bin Ali. Sheikh Abdul Khaleem AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -16- was himself arrested in connection with Mecca Masjid bomb blast case and was in jail for more than one year; besides, his brother was a LeT activist. The Jail Administration in such circumstances would prevent interaction between Sheikh Abdul Khaleem and the appellant.
The first confessional statement of the appellant was recorded on 18.12.2010 before the Metropolitan Magistrate Central, Delhi while he was in CBI custody and the second was recorded in the Court of Chief Judicial Magistrate, Panchkula on 15.01.2011 when he was in the custody of the National Investigation Agency. A written statement was submitted by the appellant in the Court of Chief Judicial Magistrate at Ajmer with the request to forward the same to the Special Court, NIA, Panchkula retracting from the statement dated 15.01.2011 and in the retraction statement dated 08.04.2011, the appellant in detail mentioned various reasons for his retraction which include mental and physical torture due which he made the statements.
Learned Senior counsel for the appellant has submitted that the so called confessional statement recorded before the Chief Judicial Magistrate at Panchkula was recorded in his chambers and not in open Court; besides, it was in violation of the procedure prescribed for recording confessional statements as provided for in the Punjab and Haryana High Court Rules and Order. While recording the statement of the appellant there was an eye contact between him and the officials of National AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -17- Investigation Agency. In the other bomb blast cases the accused have been charged on the basis of the so called confession of the appellant. It is submitted that the prosecution had various other leads in the case which show the involvement of others but the prosecution is proceeding only on the basis of so called confession of the appellant. It is also submitted that the amendments brought about to the Unlawful Activities (Prevention) Act, 1967 and the enactment of the National Investigation Agency Act, 2008 which was enacted by the Parliament on 31.12.2008 are after the incident of Samjhuata Express Train blast on the intervening night of 18/19.02.2007. Therefore, the amended Unlawful Activities (Prevention) Act, 1967 and the provisions of the National Investigation Agency Act, 2008 would be inapplicable. It is also submitted that the appellant has never been involved in any criminal activities in the past; besides, he did not delay the trial in the case and even the complete material which is relied upon by the prosecution in its case has not been given to the appellant in view of Section 173 (6) Cr.P.C. It is also submitted that further supplementary 'challans' are likely to be filed which would further delay the case.
We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through the record of the case.
In the trial of cases which relate to terrorist acts and activities, the Courts are generally loath to grant bail as these AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -18- affect the trial and also create a sense of insecurity in the general public. However, at the same time some balancing process is to be applied so that the rights of an accused to speedy and expeditious trial are not infringed. Wherever there is an infraction of the right to speedy trial as enshrined by Article 21 of the Constitution of India, an accused would get a right for consideration for grant of bail. Bail in such cases is not automatic and is not a vested right but a concession.
The Hon'ble Supreme Court in Shahen Welfare Association v. Union of India, AIR 1996 SC 2957 in a case relating to the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA Act - for short) considered the release on bail of under-trials when it is severely restricted as in the case of TADA Act. It was held that it becomes necessary that the trial proceeds and concludes within reasonable time. However, where this was not practical, release on bail could be taken to be embedded in the right of speedy trial may, in some cases, be necessary to meet the requirements of Article 21 of the Constitution. It was observed that it had become necessary to grant some relief to those persons who had been deprived of their personal liberty for a considerable length of time without any prospect of the trial being concluded in the near future. Undoubtedly, the safety of the community and of the nation needed to be safeguarded looking the nature of the offence, the under-trials had been charged with. But the ultimate justification AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -19- for such deprivation of liberty pending trial could only be their being found guilty of the offence for which they had been charged. If such a finding was not likely to be arrived at within a reasonable time some relief becomes necessary. No one can justify gross delay in disposal of cases when under-trials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21 of the Constitution. For the purpose of grant of bail to the TADA Act detenus, the Supreme Court divided under-trials into the following classes, namely, (a) hard-core under-trials whose release would prejudice the prosecution case and whose liberty may prove to be a menace to society in general and to the complainant and prosecution witnesses in particular; (b) other under-trials whose overt acts or involvement directly attract Section 3 and/or Section 4 of the TADA Act; (c) under-trials who are roped in, not because of any activity directly attracting under Sections 3 and 4 but by virtue of Section 120-B or Section 147 IPC; and (d) those under-trials who were found possessing incriminating articles in notified areas and booked under Section 5 of TADA Act. It was held that ordinarily it is true that the provisions relating to restriction of grant of bail would apply to all the aforesaid classes but while adopting a pragmatic approach, no one could dispute the fact that all of them could not be dealt with by the same yardstick. Different approaches would be justified on the basis of the gravity of the charges.
The case of the appellant primarily falls under category AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -20-
(c) above inasmuch as he being an under-trial who is not directly involved in the activity of causing the bomb blast in Samjhauta Express train but is said to be involved by virtue of Section 120-B IPC; besides, he is attributed other roles of holding meetings and carrying out deliberations with the view to create terror. Moreover, even if it is taken that the appellant is a hard-core under trial, the question whether his release would prejudice the prosecution case and his liberty would be a menace to the society in general or to the complainant and prosecution witnesses in particular and thereby fall under category (a) laid down by Hon'ble Supreme Court would also require consideration.
The case of the appellant indeed causes a problem of reconciling the conflict between the rights of the community and the nation to safety and protection from terrorism and disruptive activities and his claim of individual liberty. As held by the Supreme Court that while it is essential that innocent people should be protected from terrorists and disruptive forces, it is equally necessary that terrorists and disruptionists are speedily tried and punished. In fact protection to innocent civilians is dependent on such speedy trials and punishment. The conflict is generated on account of gross delay in the trial of such person. This delay may contribute to absence of proper evidence at the trial so that the really guilty may have to be ultimately acquitted. It also causes irreparable damage to innocent persons who may have been wrongly accused of the crime and ultimately acquitted, AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -21- but who remain in jail for a long period pending trial because of the stringent provisions of bail, they may suffer severe hardship and the families may be ruined. It is in the back drop of these circumstances of conflict between individual liberty and right of the community and nation that the case is to be considered and resolved.
A Full Bench of this Court in Dalip Singh alias Deepa v. State of Punjab, 2010 (2) RCR (Criminal) 566 as regards grant of bail pending trial and suspension of sentence after conviction of an accused inter alia summed up the position as follows:-
"(a) long pendency of the trial or an appeal after conviction would be a ground for consideration for grant of bail or suspension of sentence of an accused or a convict as the case may be in the spirit of Article 21 of the Constitution of India.
(b) In the case of delay in conclusion of the trial the right is of consideration for release on bail and not an automatic right of grant of bail. In the consideration process for the grant of bail on the ground of delay in concluding the trial it shall have to be seen who was responsible for the delay. In case it is the accused who had delayed the trial no relief can be granted. In AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -22- case of delay by the prosecution, which is oppressive or unwarranted, besides, affecting the right of an accused under-trial in terms of Article 21, remedial orders including grant of bail or fixing a time frame for the conclusion of the trial are to be passed.
(c) XXXXXX
(d) While considering the case for release from custody on bail during trial or suspension of sentence pending an appeal the Court is also to consider:--
(i) the nature of the offence;
(ii) the manner in which the offence has occurred;
(iii) the role attributed to the accused or the appellant as the case may be seeking bail or suspension of his sentence;
(iv) the nature of gravity or heinousness of the crime or cruel mode of its execution.
(v) whether a bail earlier granted had been misused and other criminal cases, if any, pending against the accused or the convict or other cases where he has been convicted;
(vi) the propensity and potentiality of the accused or the convict indulging in criminal AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -23- activities while on bail;
(vii) the likelihood of an accused in case of an under-trial or a convict prisoner after his conviction to abscond or being a proclaimed offender, besides, in case of an under-trial prisoner the likelihood of his interfering in the trial of the case by influencing the witnesses or tampering with the evidence.
(viii) conduct of an accused or a convict while in jail and in the case of a convict whether he has misused the concession of parole or furlough;
(ix) whether the concession of bail, parole or furlough earlier granted has been misused;
these and other circumstances which are
illustrative and not exhaustive are to be
adverted to and taken into consideration at the time of consideration of an application seeking bail by an under-trial or suspension of sentence by a convict after his conviction.
(e) to (g) XXXXXXXX
As has already been noticed in the facts and
circumstances of the present case, there has been considerable delay in the trial of the case inasmuch as the appellant has been in custody for the last three years and eight months and it is not shown that the appellant had delayed the trial. In fact the AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -24- appellant being in custody cannot be said to have delayed the trial of the case. He did file an application in terms of Section 91 Cr.P.C. for production of documents, relevant material and for directing the National Investigation Agency to admit or deny the documents in terms of Section 294 Cr.P.C. The said application was declined by the learned Judge, Special NIA Court, Panchkula vide order dated 02.11.2011. The appellant filed Crl. Appeal No.D-196-DB of 2012 against the said order. However, learned Senior counsel appearing for the appellant in view of the judgment of the Supreme Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 by a separate order passed today in the said appeal has withdrawn the same. Besides, it is also to be noticed that the NIA Act being a new Act has also resulted in some procedural delays as regards its interpretation and follow up for which the appellant cannot be held responsible. The prosecution is to examine 299 witness and till date 35 have been examined; besides, 7 have been given up. The examination of the other witnesses would take substantial time and in case the appellant remains incarcerated all this while, the very purpose of his trial would be defeated as he would in any case have undergone his sentence or most part of it and in case he acquitted the liberty for the period of imprisonment undergone would not be restored. The appellant according to his learned Senior counsel is 77 years of age and is M.Sc in Physics. He is stated to be a respectable person and there is nothing shown that AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -25- he has misconducted himself during his incarceration in jail. In the circumstances, even if it is taken that the appellant is a hard-core under trial, his release would not prejudice the prosecution case and his liberty would not be a menace to the society in general or to the complainant and prosecution witnesses in particular and thereby fall under category (a) laid down by Hon'ble Supreme Court in the case of Shahen Welfare Association v. Union of India (Supra).
Therefore, by adopting the balancing process as regards the individual liberty of the appellant and the right of the community and the nation to safety and protection from terrorism and disruptive activities, the scales would tilt in favour of the appellant in view of his long incarceration, the role attributed to him, his conduct subsequent to his arrest, his age of 77 years, his being a M.Sc. in Physics and the fact that the trial in the case would be delayed, it would be just and expedient to grant him the concession of bail.
Accordingly, the appeal is allowed and the order dated 30.11.2013 passed by the learned Special Judge under the NIA Act, Panchkula is set aside. The appellant-Nabha Kamar Sarkar @ Swami Assemanand, on his furnishing personal bond and two sureties to the satisfaction of the learned Additional Sessions Judge, NIA Special Court, Panchkula shall be admitted to bail during the pendency of the trial.
The appellant-Nabha Kamar Sarkar @ Swami AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh Crl. Appeal No.D-539-DB of 2014 (O & M) -26- Aseemanand shall not leave the country without the prior permission of the learned Additional Sessions Judge, NIA Special Court, Panchkula. He shall furnish his complete address and particulars. He shall also give his mobile number, which he shall keep in operation all the time and attend to the calls of the NIA authorities. He shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police officer. He shall not interfere with or influence any witness or try to contact any witness of the prosecution, in any manner possible, either in person or through any other person. He shall appear in court on each date of hearing as fixed by the Court. He shall not commit any offence similar to the offence of which he is accused or of the commission of which he is suspected.
(S.S. Saron) Judge (Lisa Gill) Judge 28.08.2014 A.Kaundal/amit Note: Whether to be referred to the Reporter? : Yes/No AMIT KHANCHI 2015.05.01 12:45 I attest to the accuracy and authenticity of this document High Court,Chandigarh