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IN THE HIGH COURT OF BOMBAY
SARANG V. KOTWAL, J.
Arun - Appellant
Versus
State of Maharashtra (Through ACP Swargate, Pune City) - Respondent
Criminal Bail Application No. 3006 of 2018
Decided On : 15-10-2019
BAIL - UAPA - APPLICANT IS AN ACTIVE MEMBER OF THE BANNED ORGANIZATION CPI(MAOIST) - HE WAS INVOLVED IN RECRUITING CADRES - THERE IS SUFFICIENT MATERIAL IN THE CHARGE-SHEET AGAINST THE APPLICANT - THERE ARE REASONABLE GROUNDS FOR BELIEVING THAT THE ACCUSATION OF COMMISSION OF THE OFFENCES PUNISHABLE UNDER CHAPTERS IV AND VI OF THE UAPA AGAINST THE APPLICANT IS PRIMA FACIE TRUE - CONSIDERING THE EXPRESS BAR IMPOSED BY SECTION 43D(5) OF THE UAPA, THE APPLICANT CANNOT BE RELEASED ON BAIL.
Fact of the Case:
The applicant is seeking his release on bail pending trial in connection with C.R. No.4/2018 registered at Vishrambaug Police Station, Pune. The charge-sheet is already filed. The charge-sheet is filed against the applicant for commission of offences punishable under Sections 121, 121A, 124A, 153A, 505(1)(b), 117, 120B read with 34 of the Indian Penal Code, 1872 (hereinafter referred to as 'I.P.C.') and under Sections 13, 16, 17, 18, 18B, 20, 38, 39, 40 of the Unlawful Activities (Prevention) Act, 1967, as amended in 2008 and 2012 (hereinafter referred to as 'UAPA').
Finding of the Court:
The court found that there is sufficient material in the charge-sheet against the applicant. There are reasonable grounds for believing that the accusation of commission of the offences punishable under Chapters IV and VI of the UAPA against the applicant is prima facie true. Considering the express bar imposed by Section 43D(5) of the UAPA, the applicant cannot be released on bail.
Issues: Whether the applicant is entitled to be released on bail.
Ratio Decidendi: The court held that the applicant is an active member of the banned organization CPI(Maoist) and was involved in recruiting cadres. The court also held that there is sufficient material in the charge-sheet against the applicant and there are reasonable grounds for believing that the accusation of commission of the offences punishable under Chapters IV and VI of the UAPA against the applicant is prima facie true. Therefore, considering the express bar imposed by Section 43D(5) of the UAPA, the applicant cannot be released on bail.
Final Decision: The court rejected the applicant's bail application.
JUDGMENT :
Sarang V. Kotwal, J.
The applicant is seeking his release on bail pending trial in connection with C.R. No.4/2018 registered at Vishrambaug Police Station, Pune. The charge-sheet is already filed. The charge-sheet is filed against the applicant for commission of offences punishable under Sections 121, 121A, 124A, 153A, 505(1)(b), 117, 120B read with 34 of the Indian Penal Code, 1872 (hereinafter referred to as 'I.P.C.') and under Sections 13, 16, 17, 18, 18B, 20, 38, 39, 40 of the Unlawful Activities (Prevention) Act, 1967, as amended in 2008 and 2012 (hereinafter referred to as 'UAPA').
2. The applicant was arrested on 28.8.2018. Initially he was kept under house-arrest. As of today, the applicant is in judicial custody. The charge-sheet is already filed against him.
3. The State of Maharashtra has opposed this application. On behalf of the State, the Assistant Commissioner of Police, Yerwada Division, Pune, Dr. Shivaji Panditrao Pawar has filed his affidavit dated 6.3.2019. For the sake of convenience, this affidavit is hereinafter referred to as the "State's affidavit".
BRIEF HISTORY AND CASE OF THE INVESTIGATING AGENCY :
4. The FIR was lodged on 8.1.2018 at Vishrambaug Police Station by one Tushar Ramesh Damgude. The FIR was registered for commission of offences punishable under Sections 153A, 505(1)(b) and 117 read with 34 of IPC. According to the first informant, he was in the business of construction. Through a social networking site, he came to know that there was a programme at Shaniwar Wada, Pune on 31.12.2017 organized by Elgar Parishad. He attended that programme at around 2:00 p.m. on 31.12.2017. He further stated in the FIR that there were a few speakers, comperes, singers and other performers present on the stage. The informant was knowing Kabir Kala Manch and its members. He had read about them on social media and in the newspapers. He has further stated that some of the performers enacted short plays, performed dances and sung songs. According to him, the performances were provocative in nature and had effect of creating communal disharmony. At that time, some provocative speeches were delivered. A few objectionable and provocative books were kept for sale at the venue. It was his contention in the FIR that a banned organization-Communist Party of India (Maoist) (hereinafter referred to as the 'CPI(Maoist)') was inciting violence by creating communal disharmony. According to him, the members of Kabir Kala Manch spread hatred through their songs, plays and speeches causing enmity between different communities. As a result, there were incidents of violence, arson and stone pelting near Bhima-Koregaon. Accordingly, the FIR was lodged naming six members of Kabir Kala Manch. The investigation progressed and based on the material gathered during investigation, Section 120B of IPC was added on 6.3.2018.
5. On 17.4.2018, the investigating agency conducted searches at the residences of eight persons, namely, (1) Rona Wilson, R/o. Delhi, (2) Surendra Gadling, R/o. Nagpur, (3) Sudhir Dhawale, R/o. Mumbai, (4) Harshali Potdar, R/o. Mumbai, (5) Sagar Gorakhe, R/o. Pune, (6) Deepak Dhengale, R/o. Pune, (7) Ramesh Gaychor, R/o. Pune, and (8) Jyoti Jagtap, R/o. Pune. The residences of Shoma Sen and Mahesh Raut were searched on 6.6.2018.
6. It is the case of investigating agency that during the searches; documents were recovered from various computers / laptops/ pen drives / memory cards. The seized articles were sent to Forensic Science Laboratory (for short, 'FSL') for analysis. The cloned copies were received. On the analysis of those cloned copies, aforementioned Sections of UAPA were applied on 17.5.2018.
7. It is the case of investigating agency, as set out in the State's affidavit that, based upon the seized and recovered incriminating material, it was revealed that a few more persons were part of the criminal con
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