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2005 Supreme(MP) 1251
IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)
Dipak Misra and Jeetendra K. Maheshwari, JJ.
Raghuraj Pratap Singh
Vs.
State of M.P.
Criminal Appeal No. 2483/2005
Decided On: 15.12.2005
For Appellant/Petitioner/Plaintiff: Sushil Kumar, S.C. Datt, H.S. Dubey, C.D. Singh, Manish Datt, Advs. and Vijay Bahadur Singh, Sr. Adv.
For Respondents/Defendant: T.S. Ruprah, R.S. Patel, Addl. Advs. General, Surendra Singh, Sr. Adv. and Pratulya Shandilya, Adv. for Awdhesh Pratap Shukla, Adv.
For State of U.P.: P.R. Bhave, Sr. Adv., S.K. Yadav and Anupan Mehrotra, Advs.
Headnote:
CRIMINAL APPEAL - [SECTION 34 OF THE PREVENTION OF TERRORISM ACT, 2002] - [SECTION 3 AND 4 OF THE PREVENTION OF TERRORISM ACT, 2002] - [SECTION 49(6) AND 49(7) OF THE PREVENTION OF TERRORISM ACT, 2002] - [SECTION 32 OF THE PREVENTION OF TERRORISM ACT, 2002] - [SECTION 439 OF THE CODE OF CRIMINAL PROCEDURE, 1973] - The appellant, accused of possessing hazardous substances under the Prevention of Terrorism Act (POTA), challenged the order of the Special Court denying him bail. The Supreme Court, after examining the material on record, held that the confessional statement of the appellant's father, the primary evidence against him, was not admissible due to non-compliance with the safeguards under Section 32 of POTA. The Court also noted that the appellant had been in custody for over 15 months, satisfying the condition for bail under Section 49(7) of POTA. Considering the appellant's conduct, the absence of evidence of witness tampering, and the doctrine of parity with a co-accused who had been granted bail, the Court allowed the appeal and granted bail to the appellant subject to certain conditions.
Fact of the Case:
The appellant, Raghuraj Pratap Singh, was accused of possessing hazardous substances under Sections 3 and 4 of the Prevention of Terrorism Act (POTA). He was denied bail by the Special Court under POTA. The appellant challenged this order in the Supreme Court.
Finding of the Court:
The Supreme Court held that the confessional statement of the appellant's father, the primary evidence against him, was not admissible due to non-compliance with the safeguards under Section 32 of POTA. The Court also noted that the appellant had been in custody for over 15 months, satisfying the condition for bail under Section 49(7) of POTA. Considering the appellant's conduct, the absence of evidence of witness tampering, and the doctrine of parity with a co-accused who had been granted bail, the Court allowed the appeal and granted bail to the appellant subject to certain conditions.
Issues: 1. Whether the confessional statement of the appellant's father was admissible in evidence. 2. Whether the appellant was entitled to bail under Section 49(7) of POTA. 3. Whether the doctrine of parity applied to the appellant's case.
Ratio Decidendi: 1. The confessional statement of the appellant's father was not admissible in evidence due to non-compliance with the safeguards under Section 32 of POTA. 2. The appellant was entitled to bail under Section 49(7) of POTA as he had been in custody for over 15 months. 3. The doctrine of parity applied to the appellant's case as a co-accused with similar allegations had been granted bail.
Final Decision: The Supreme Court allowed the appeal and granted bail to the appellant subject to certain conditions.
1. In this appeal preferred under Section 34 of the Prevention of Terrorism Act, 2002 (for brevity 'the POTA') the defensibility and pregnability of the order dated 29-11-2005 passed by the Special Court under the POTA at Jabalpur in Misc. Cr. No. 3439/2005 whereby the Designated Court has declined to admit the appellant to bail has been called in question.
2. The factual score as frescoed is that the house of Uday Pratap Singh, the father of the accused appellant, was raided in pursuance of execution of warrant of arrest in connection of Crime No. 93/93 under Section 2/3 of the Gangster Act pending before the learned Special Judge, Allahabad. During the raid the concerned police officer and his team found Uday Pratap Singh standing with one AK 56 rifle with black colour belt hanging on his right shoulder. On being asked to produce the licence, said Uday Pratap Singh could not produce the licence nor was he ready to divulge how he had acquired the said weapon along with the bullets. When they entered into the bedroom they found certain other articles which are impermissible to be retained under POTA. The Investigating Officer while preparing the recovery memorandum disclosed that a conspiracy was hatched to cause a massacre by killing some VIPs and there was also conspiracy to take some action against the Chief Minister. As per the said recovery memorandum statement of one Rajendra Yadav in his statement had stated that the present appellant and other co-accused Akshay Pratap Singh had bought AK-47/56 rifle and given to Uday Pratap Singh. It was alleged that after the statement was recorded he was murdered on 3-3-2003 and father of the deceased filed an FIR No. 16/2003 which gave rise to registration of offences punishable under Sections 302/34, 506, 120 of the Indian Penal Code at Police Station Hunda, Pratapgarh. Conspiracy was hatched by Uday Pratap Singh and Akshay Pratap Singh. A statement of Uday Pratap Singh was recorded which became the foundation for launching the prosecution under Sections 3 and 4 of POTA against the accused person. After the case under POTA was registered the accused was arrested and while he was suffering incarceration there was change of regime and the new regime revoked the earlier order passed under POTA, by order dated 29-8-2003. As is discernible from the factual depiction the accused filed a review petition under Section 60 of POTA and eventually the review committee found that there was no justification to proceed against the accused under POTA and the State of U.P. was directed to release the accused persons. Th6 said order was called in question before the Apex Court the decision of which has been rendered in the case of S.K. Shukla and Ors. v. Slate of U.P. and Ors. 2005 AIR SCW 6054.
3. It is worthnoting here that the present accused along with his father, Uday Pratap Singh was proceeded under Sections 3 and 4 of the POTA. When the matter was pending before the Apex Court the present appellant was enlarged on bail. The Apex Court taking into consideration the material collected against the accused persons and the absence of notification defining the area as requisite under Section 4(a) of the POTA expressed the view that as notification under Section 4(a) had not come into existence at the time when the raid on the premises of Uday Pratap Singh was conducted the charge under Section 4(a) of POTA could not be sustained. As far as Section 4(b) was concerned Their Lordships after referring to anatomy of the provision expressed the view that considering connotative expanse inhered in the conceptuality of hazardous substance under Section 4(b) of the Act observed that AK-56 is a very dangerous weapon and it is used in the warfare as well as in the terrorist activities very frequently. While commenting upon the cases relating to the accused persons the Apex Court has expressed the view as under :-
.... So far as this case is concerned, we are of the opinion that there is prima facie case
