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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
RANJIT MORE, SHALINI PHANSALKAR-JOSHI, JJ.
Lt. Col. Prasad Shrikant Purohit - Appellant
Versus
State of Maharashtra, Through National Investigation Agency (NIA), New Delhi - Respondent
Criminal Appeal No.664, 1448 of 2016
Decided On : 25-04-2017
Prior to the amendment of Section 43-D(5), which came into effect from 31st December, 2008, the Bail Applications of the accused persons charged for the offences under Unlawful Activities (Prevention) Act were required to be considered within the scope of the provisions of the Code; whereas, now, after the amendment, such Bail Applications are to be considered as per these provisions of sub-clause (5) of Section 43-D. By way of this Amendment, two additional conditions are laid down, like, opportunity of being heard on the application of bail being extended to the P.P. before passing any order on the Bail Application of the accused and second condition to the effect that the accused shall not be released on bail, if, on perusal of the Case Diary or the Report made under Section 173 of the Code, the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. No doubt, these two conditions are in addition to the conditions laid down under the Code on granting of bail; however, these conditions, do not, in any way, affect or restrict the right, if any, of the appellant to be released on bail. Even while deciding the Bail Application of the accused, as per the provisions of the Code, Public Prosecutor is heard and, secondly, under the provisions of the Code also, the Court always ensures as to whether the accusation against the accused person is prima facie true. If it is so, then his right to get the bail becomes restricted. Therefore, effectually, there are no such further restrictions laid down by the Amendment Act on the appellant`s right, if any, of the bail. Hence, this Amendment cannot be considered as substantively affecting the right of appellant.
1. This is an Appeal preferred by original Accused No.9-Lt. Col. Prasad Purohit in M.C.O.C. Special Case No.1 of 2009 alias M.C.O.C. Special Case No.8 of 2011 alias N.I.A. Special Case No.1 of 2016, challenging the order dated 26th September 2016 passed by the Special Court, constituted under MCOC Act and NIA Act at Mumbai, thereby rejecting his application for bail (Exhibit No.3139).
2. Appellant is one of the twelve accused, who are charge-sheeted by 'Anti Terrorist Squad, Mumbai', (for short, "ATS"), under sections 302, 307, 326, 324, 427, 153A and 120B of the Indian Penal Code, (for short, "IPC"), r/w. Sections 3, 4, 5 and 6 of the Explosive Substances Act, 1908, (for short, "ES Act"), r/w. Sections 3, 5 and 25 of the Arms Act, 1959, (for short, "Arms Act"), r/w. Sections 15, 16, 17, 18, 20 and 23 of Unlawful Activities (Prevention) Act, 1967, (for short, "UAP Act"), r/w. Sections 3(1) (i), 3(1)(ii), 3(2), 3(4) and 3(5) of the Maharashtra Control of Organized Crime Act, 1999, (for short, "MCOC Act").
3. Brief facts of the case, which may be relevant for deciding this Appeal and which are summarized by Special Court in its order and which are otherwise also not controverted, can be stated as follows :-
4. On 29th September 2008, at about 9:35 pm, the bomb explosion took place at Malegaon, District Nashik, opposite Shakil Goods Transport Company, between Anjuman Chowk and Bhiku Chowk. The blast was caused on account of explosive device fitted in 'LML Freedom Motor-Cycle', bearing registration No.MH-15-P-4572. In the said blast, 6 innocent persons lost their lives and about 101 persons had received injuries of various nature, coupled with the damage caused to the property. As per prosecution case, since it was a month of holy Ramzan and on 30th September 2008, the holy festival of Navratra was to commence, it was apparent that the bomb-blast was caused with intent to terrorize the people, to cause loss of lives and property and to create communal rift, to endanger the security of the State.
5. On the same night, at about 3 a.m., offence came to be registered in respect of this bomb-blast under C.R. No.130/2008 in Azad Nagar Police Station, Malegaon, Dist. Nashik, for the offences punishable under sections 302, 307, 326, 324, 427, 153A and 120B of IPC, r/w. Sections 3, 4, 5 and 6 of ES Act r/w. Sections 3, 5 and 25 of the Arms Act.
6. During the course of investigation, the exhibits collected from the scene of offence were sent to the Forensic Science Laboratory at Nashik, (for short, "FSL"), and as per the report of the FSL, those exhibits were found to be containing Cyclonite (RDX) and Ammonium Nitrate, which are used as highly explosive substances.
7. On 18th October 2008, the provisions of Sections 15, 16, 17, 18, 20 and 23 of the UAP Act were invoked and investigation of the case was entrusted to Dy.S.P. (Head Quarter), Nashik Rural, as per the provisions of UAP Act. Thereafter, on 26th October 2008, A.C.P. and Chief Investigating Officer of ATS, Mumbai, took the charge of the investigation and the case was registered as C.R. No.130/2008. On 5th November 2008, the Appellant came to be arrested in the said C.R. On 29th November 2008, the provisions of MCOC Act were also invoked. After carrying out due investigation, ATS filed Charge- Sheet in the Court on 20th September 2009 against eleven Accused, including the Appellant, and sought permission to continue further investigation under Section 173(8) of the Code. Accused No.12- Praveen Takkalki was arrested subsequent thereto and, accordingly, Supplementary Charge-Sheet came to be filed against him by ATS on 20th April 2011.
8. During the course of investigation, it was transpired that registration number of 'LML Freedom Motor-Cycle', used in the crime, was bogus. The Chassis and Engine Number of the said motorcycle were found to be erased. The parts of the motor-cycle were sent to the FSL. The FSL could successfully restore the engine number of the said motor-cycle and i
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