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SUPREME COURT OF INDIA
ANIRUDDHA BOSE, AUGUSTINE GEORGE MASIH, JJ.
Shoma Kanti Sen – Appellant
Versus
The State of Maharashtra and Another – Respondents
Criminal Appeal No. 2595 of 2023
Decided On : 05-04-2024
(A) Criminal Procedure Code, 1973 – Section 439 – National Investigation Agency Act, 2008 – Section 21 – Bail – FIR registered alleging commission of offences under Sections 153A, 505 (1b), 117 read with Section 34 of Indian Penal Code, 1860 – At point of time when bail petition was filed by appellant before High Court, there was no apparent jurisdictional shortcoming in High Court examining appellant’s plea for bail – As an Appellate Forum, it was well within jurisdiction of High Court exercising its power under Section 21(2) of 2008 Act, to examine second supplementary charge-sheet as well, while sitting in appeal over order of rejection of bail by regular Sessions Court upon considering first two charge-sheets – Course adopted by High Court disposing her application for bail with liberty to approach Trial Court for filing a fresh application for bail was a permissible course. (Paras 12, 13 and 14)
(B) Unlawful Activities (Prevention) Act, 1967 – Section 45D(5) read with Sections 16, 17, 18, 18B, 20, 38, 39 and 40 – Criminal Procedure Code, 1973 – Section 439 – Bail – FIR registered alleging commission of offences under Sections 153A, 505 (1b), 117 read with Section 34 of Indian Penal Code, 1860 – Appellant was not initially named in FIR as accused – So far as allegation of prosecution of appellant being member of frontal organisation of CPI (Maoist), reference has been made to RDF, IAPL, CPDR, AGMC and KKM – But apart from mere allegations that these are frontal organizations of CPI (Maoist), no credible evidence has been produced before Court through which these organisations can be connected to the banned terrorist organization – Offence under Section 20 of 1967 Act relating to membership of a terrorist organisation which is involved in a terrorist act, cannot be made out against appellant at this stage – There is no reasonable ground for believing that accusations against appellants for commission of offences incorporated in Chapter IV and VI of 1967 Act are prima facie true – A Constitutional Court is not strictly bound by prohibitory provisions of grant of bail in 1967 Act and can exercise its constitutional jurisdiction to release an accused on bail who has been incarcerated for a long period of time, relying on Article 21 of Constitution of India – Depending on gravity and seriousness of offence alleged to have been committed by an accused, detention before conclusion of trial at investigation and post-charge-sheet stage has sanction of law broadly on these reasonings – But any form of deprival of liberty results in breach of Article 21 of Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in facts of a given case – Section 43D (5) of 1967 Act would not be applicable in case of appellant – Bail granted against stern conditions. (Paras 34, 36, 37, 38, 41 and 42)
Facts of the case:
Appellant assails order of a Division Bench of High Court of Judicature at Bombay passed on 17.01.2023, disposing her application for bail with liberty to approach Trial Court for filing a fresh application for bail. Complaints therein related to violence that broke out at a function organised by Elgar Parishad. Certain acts of violence had taken place at Shanivarwada, Pune on 31.12.2017 thereafter. Prosecution’s case is that in said programme, provocative speeches were delivered and there were cultural performances which had effect of creating enmity between caste groups, resulting in disruption of communal harmony, violence, and loss of life.
Findings of Court:
In the event there is breach of any of these conditions or any other condition that may be imposed by Special Court independently, it would be open to prosecution to seek cancellation of bail granted to appellant before Special Court only, without any further reference to this Court.
Result : Appeal allowed.
JUDGMENT :
ANIRUDDHA BOSE, J.
1. The appellant before us assails the order of a Division Bench of the High Court of Judicature at Bombay passed on 17.01.2023, disposing her application for bail with liberty to approach the Trial Court for filing a fresh application for bail.
2. The appellant was detained on 06.06.2018 in connection with First Investigation Report (“FIR”) no. 04/2018 dated 08.01.2018 registered with Vishrambaug Police Station, Pune alleging commission of offences under Sections 153A, 505 (1b), 117 read with Section 34 of the Indian Penal Code, 1860 (“1860 Code”). The complaints therein related to violence that broke out at a function organised by Elgar Parishad. Certain acts of violence had taken place at Shanivarwada, Pune on 31.12.2017 thereafter. The prosecution’s case is that in the said programme, provocative speeches were delivered and there were cultural performances which had the effect of creating enmity between caste groups, resulting in disruption of communal harmony, violence, and loss of life. The said FIR was initially lodged against the organisers of the Elgar Parishad event, which included activists of a cultural body, known as Kabir Kala Manch. The appellant before us was not named in that FIR as an accused at that point of time.
3. Subsequently, the scope of investigation was expanded and Section 120-B of the 1860 Code was added to the list of offences on 06.03.2018. The State Police, who were investigating the case at that point of time raided houses of eight accused persons on 17.04.2018, namely (1) Rona Wilson of Delhi, (2) Surendra Gading of Nagpur, (3) Sudhir Dhawale of Mumbai, (4) Harshali Potdar of Mumbai, (5) Sagar Gorkhe of Pune, (6) Deepak Dhaeagale of Pune, (7) Jyoti Jagtap of Pune and (8) Ramesh Gaychore of Pune. The State Police, allegedly, found incriminatory materials from the residences of the raided persons. The State Police seemed to have had discovered a larger conspiracy of which the appellant was a part, according to the prosecution. They found that Communist Party of India (Maoist) [“CPI (Maoist)”] to be behind such conspiracy. The latter is a banned terrorist organisation, and has been included in the First Schedule of the Unlawful Activities (Prevention) Act, 1967 (“1967 Act”) by an order of the Union Home Ministry dated 22.06.2009. This led to invoking offences under Sections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act. On 06.06.2018, appellant’s residence was raided and certain literatures, electronic devices and mobile phones were seized from her. On that date itself, the appellant came to be arrested by the State Police.
4. On 02.11.2018, statement of one Kumarasai was recorded. He had also recorded two other subsequent statements on 23.12.2018 (Annexure P-6 to the appeal-petition) and 24.08.2020. All these statements form a part of the three charge-sheets which have been submitted in connection with the subject case and we shall refer to the contents thereof later in this judgment. We would also point out here that on behalf of prosecution, four sets of statements have been produced before us as statements of protected witnesses. But status of two of those witnesses as ‘protected’ was removed by the Special Court constituted under the National Investigation Agency Act, 2008 (“2008 Act”) by an order passed on 27.04.2022. The investigation was transferred to the National Investigation Agency (“NIA”) on 24.01.2020 and the same case was renumbered as RC- 01/2020/NIA/MUM, with NIA police station, Mumbai. The Special Court held that prior directions to maintain secrecy in respect of identity of KW2 and KW4 ought to be set aside. The names of KW2 and KW4 thus stood removed from the list of protected witnesses. This was done mainly on the ground that copies of statements of those two witnesses had been supplied to the defence under Section 207 of the Code of Criminal Procedure, 1973 (“1973 Code”), which transmitted their names and identities. KW4 is Kumarasai, whose
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