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ANDHRA PRADESH HIGH COURT
L. Narasimha Reddy and M.S.K. Jaiswal, JJ.
Devendar Gupta and another —Appellants
versus
National Investigation Agency, rep. by Mr. Mahesh Chandra Ladha, Superintendent of Police, Hyderabad —Respondent
Criminal Appeal No.795 of 2013
Decided on 12.03.2014
(ii) Unlawful Activities (Prevention) Act, 1967—Section 43-D—Bail—Allegation of causing death in bomb blast—Charge-sheets, as of now, are silent as to who planted bombs and who exploded them—In this state of affairs it is difficult to conclude that there exists reasonable ground to believe that accusation against appellants is prima facie true—Trial Court did not take into account any material whatever which formed part of record but simply formed an opinion that taking of cognizance of offences under relevant provisions of the Act can lead to conclusion as to existence of reasonable grounds to believe that accusation against petitioners is prima facie true—If mere taking of cognizance of a crime were to have resulted in existence of a prima facie true case against accused, there would not have been any necessity for Parliament to require trial Court to undertake any exercise as mentioned in proviso to Section 43-D(6)—Decent balance needs to be maintained between mandate under proviso to Section 43-D(6) of the Act, on one hand and right of accused to be granted bail, particularly, after charge-sheet is filed, on other hand—Bail granted. (Paras 11, 12, 32, 41 to 45)
(iii) Criminal Procedure Code, 1973—Sections 167 and 439—Bail—Normally, it is only on being found to be guilty of an offence that a person, accused of the same, is to be confined in prison, to serve sentence imposed by Court.—Initial arrest of an accused is to enable police to interrogate him—Thereafter, pre-trial detention of accused has a limited purpose to serve—It is only to ensure that person alleged to have committed offence does not meddle with prosecution, particularly when situation is serious or grave that he is arrested and detained as under-trial prisoner— Once a charge-sheet is filed or if prosecution fails to file charge-sheet within stipulated time, a valuable right accrues to an under-trial prisoner, to press for bail. (Paras 14 and 15)
(iv) Criminal Procedure Code, 1973—Section 437—Bail—Under Section 437 Cr.P.C, burden is on prosecution to show existence of reasonable ground for believing that accused is guilty—Presumption of innocence which always runs in favour of accused, is displaced only on prosecution showing existence of reasonable ground to believe that accused is guilty. (Para 25)
(v) Words and Phrases—Prima facie—Expression “prima facie”, is used in civil cases also, particularly in context of deciding applications for temporary injunctions—Broadly understood, it connotes that without help of any other material, one which is before Court, must be sufficient to accept proposition put forward by the concerned party—In context of Section 43-D of the Act, adjective, prima facie qualifies strength or nature of case of prosecution, at the stage when application for bail is being considered which is before trial. (Para 23)
JUDGMENT
L. Narasimha Reddy, J.— On 18-05-2007, which is a Friday, prayers were being offered as usual, in Mecca Masjid, near Charminar, at Hyderabad. A blast took place around 1:25 p.m. Five persons died and many received injuries. Initially, the Station House Officer, Hussaini Alam Police Station registered Crime No.100/2007, alleging offences punishable under Sections 302, 307 and 120-B I.P.C and Sections 3 and 5 of Explosive and Substances Act against certain unknown persons. The same Police Station has registered crime No.107/2007 also in relation to the very incident.
2. Having regard to the gravity of the incident, the case was handed over for investigation, to Central Bureau of Investigation (CBI). Thereupon, the CBI re- registered the case as R.C.No.5(S)/2007, citing the same provisions of law. Charge-sheet was also filed by the CBI on 13-12-2010 against several accused, including Devendra Gupta alias Babby, alias Ramesh, and Lokesh Sharma alias Ajay Tiwari alias Ajay alias Kalu, accused Nos.3 and 4. No charge-sheet was filed against four more accused, viz., Sandeep V. Dange, Ramchandra Kalsangra, Sunil Joshi, Nabakumar Sarkar alias Asimanand. When the case was pending trial, the National Investigating Agency (NIA), the respondent herein, was constituted by the Government of India under the National Investigation Act, 2008 (for short ‘the NIA Act’). Further investigation was handed over to the said agency. The respondent, in turn, filed another charge sheet on 16-05-2011 alleging certain offences under various provisions of law, including the provisions of the Unlawful Activities (Prevention) Act, 1967, (for short ‘the Act’). There is some uncertainty as regards array of the accused.
3. The appellants herein i.e. accused Nos. 1 and 2, i.e., Devendra Gupta and Lokesh Sharma filed Criminal M.P.No.569 of 2012 in the Court of IV Additional Metropolitan Sessions Judge, Hyderabad, the then Designated Court for NIA Cases, for bail, under Section 439 of Cr.P.C. After hearing the parties, the tria Court granted bail through its order dated 26-11-2012.
4. The respondent filed Criminal Appeal No.1197 of 2012 under Section 21 of the NIA Act. A Division Bench of this Court took the view that the trial Court did not focus its attention on Section 43-D of the Act, and in particular, proviso to sub-section (6) thereof. To be precise, this Court pointed out that the bail could have been granted, if only the trial Court formed an opinion, that there are reasonable grounds for believing that the accusation against the appellants is prima facie not true. Accordingly, the matter was remanded to the trial Court. The Court of I Additional Metropolitan Sessions Judge, Hyderabad, since came to be designated as a Special Court for NIA cases. As a result, Special Sessions Case No.1 of 2011 was renumbered as Special Sessions Case No.3 of 2012 and Criminal M.P.No.569 of 2012 as Criminal M.P.No.1003 of 2013. After remand, the trial Court dismissed the bail petition through order dated 17-08-2013. Hence this appeal, under Section 21 of the NIA Act.
5. Sri N. Ramachander Rao, learned Senior Counsel for the appellants submits that the allegation against the appellants is based on imagination, and not a single person, who has any direct knowledge about the incident or the alleged involvement of the appellants; was cited in the list of witnesses. He contends that the allegation against the appellants is that they purchased a SIM card and cell phone, that too, in binami names, at different places and the cell phone, in turn, was used for explosion of the bomb. He submits that the case of the prosecution is a pigment of imagination, aimed at implicating persons associated with a particular organization, and in the process, totally improbable and unimaginable links are sought to be provided. Learned Senior Counsel submits that the very production of A-6, Asimanand, as an accused, in the instant case, by bringing him in a special flight; his alleged coming
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