2019 Supreme(SC) 384

SUPREME COURT OF INDIA
A.M. Khanwilkar, Ajay Rastogi, JJ.
NATIONAL INVESTIGATION AGENCY – Appellant
Vs.
ZAHOOR AHMAD SHAH WATALI – Respondent
Criminal Appeal No. 578 of 2019 (Arising out of SLP (Criminal) No. 7857 of 2018)
Decided On : 02-04-2019

IMPORTANT POINTS
(1) Degree of satisfaction to be recorded by Court for opining that there are reasonable grounds for believing that accusation against accused is prima facie true, is lighter than degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under Unlawful Activities (Prevention) Act, 1967.
(2) Bail – Totality of material gathered by Investigating Agency and presented along with report and including case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance.
(3) Bail – It is for Court considering application for bail to assess material/evidence presented by Investigating Agency along with report under Section 173 of Cr.P.C. in its entirety, to form its opinion as to whether there are reasonable grounds for believing that accusation against the named accused is prima facie true or otherwise.

Headnote:(A) Unlawful Activities (Prevention) Act, 1967 – Sections 13,16,17,18,20,38,39 and 40 read with Section 43D – Criminal Procedure Code, 1973 – Section 439 – Indian Penal Code, 1860 – Sections 120B, 121 and 121A – Grant/refusal of bail – Considerations – Whether there is any prima facie or reasonable ground to believe that accused had committed the offence; (ii) nature and gravity of charge; (iii) severity of punishment in event of conviction; (iv) danger of accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of accused; (vi) likelihood of offence being repeated; (vii) reasonable apprehension of witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail – When it comes to offences punishable under special enactments, such as 1967 Act, something more is required to be kept in mind in view of special provisions contained in Section 43D of 1967 Act. (Paras 15 and 16)

       (B) Indian Penal Code, 1860 – Sections 120B, 121 and 121A – Unlawful Activities (Prevention) Act, 1967 – Sections 13,16,17,18,20,38,39 and 40 read with Section 43D – Criminal Procedure Code, 1973 – Section 439 – Bail – Charge of terror funding in Jammu and Kashmir – Bail granted by High Court while reversing order passed by Designated Court rejecting bail application of respondent – There is degree of difference between satisfaction to be recorded by Court that there are reasonable grounds for believing that accused is not guilty of such offence and satisfaction to be recorded for the purposes of 1967 Act that there are reasonable grounds for believing that accusation against such person is prima facie true – Degree of satisfaction is lighter when Court has to opine that accusation is prima facie true as compared to opinion of accused “not guilty” of such offence as required under other special enactments – Degree of satisfaction to be recorded by Court for opining that there are reasonable grounds for believing that accusation against accused is prima facie true, is lighter than degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under 1967 Act – Elaborate examination or dissection of evidence is not required to be done at this stage – Court is merely expected to record a finding on the basis of broad probabilities regarding involvement of accused in commission of stated offence or otherwise. (Paras 17 and 18)

       (C) Indian Penal Code, 1860 – Sections 120B, 121 and 121A – Unlawful Activities (Prevention) Act, 1967 – Sections 13,16,17,18,20,38,39 and 40 read with Section 43D – Criminal Procedure Code, 1973 – Section 439 – Bail – Charge of terror funding in Jammu and Kashmir – Bail granted by High Court while reversing order passed by Designated Court rejecting bail application of respondent – High Court has ventured into an area of examining merits and demerits of evidence – Documents pressed into service by Investigating Agency were not admissible in evidence – Approach of High Court in completely discarding statements of protected witnesses recorded under Section 164 of Cr.P.C., on specious ground that same was kept in a sealed cover and was not even perused by Designated Court and also because reference to such statements having been recorded was not found in charge-sheet already filed against respondent is in complete disregard of duty of Court to record its opinion that accusation made against concerned accused is prima facie true or otherwise – That opinion must be reached by Court not only in reference to accusation in FIR but also in reference to contents of case diary and including charge-sheet (report under Section 173 of Cr.P.C.) and other material gathered by Investigating Agency during investigation – Section 43D of 1967 Act, applies right from stage of registration of FIR for offences under Chapters IV and VI of 1967 Act until conclusion of trial thereof – Totality of material gathered by Investigating Agency and presented along with report and including case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance – Question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible. (Paras 18 and 19)

       (D) Unlawful Activities (Prevention) Act, 1967 – Sections 13,16,17,18,20,38,39 and 40 read with Section 43D – Indian Penal Code, 1860 – Sections 120B, 121 and 121A – Criminal Procedure Code, 1973 – Section 439 – Bail – Charge of terror funding in Jammu and Kashmir – Bail granted by High Court while reversing order passed by Designated Court rejecting bail application of respondent – Taking into account totality of report made under Section 173 of Code and accompanying documents and evidence/material already presented to Court, including under Section 164 of Code, there are reasonable grounds to believe that accusations made against respondent are prima facie true – Further investigation is in progress – Charge against respondent is not limited to Section 17 of 1967 Act regarding raising funds for terrorist acts but also in reference to Sections 13,16,18,20,38,39 and 40 of 1967 Act – High Court has not appreciated said material which found favour with Designated Court to record its opinion that there are reasonable grounds for believing that accusation against the respondent is prima facie true – High Court ought to have taken into account totality of materials/evidences which depicted involvement of the respondent in commission of stated offences and being a member of a larger conspiracy, besides offence under Section 17 for raising funds for terrorist activities – Charge-sheet need not contain detailed analysis of evidence – It is for Court considering application for bail to assess material/evidence presented by Investigating Agency along with report under Section 173 of Cr.P.C. in its entirety, to form its opinion as to whether there are reasonable grounds for believing that accusation against the named accused is prima facie true or otherwise – Designated Court had rightly rejected bail application after adverting to relevant material/evidence indicative of fact that there are reasonable grounds for believing that accusation against respondent is prima facie true – Impugned judgment and order set aside and order passed by Designated Court rejecting application for grant of bail made by respondent, affirmed. (Paras 24, 27, 29, 31, 33, 37 and 38)

       Facts of Case:

       Grant of bail. Terror funding in Jammu and Kashmir. While granting bail, High Court proceeded to conclude that order passed by Designated Court was cryptic and unsustainable both on facts and in law. It then went on to observe that there was nothing on record to indicate previous criminal involvement of respondent in any offence or the possibility of respondent fleeing from justice, if released on bail. view so taken by High Court has been assailed by Investigating Agency – appellant herein, on diverse counts. According to appellant, High Court has virtually conducted a mini trial and even questioned genuineness of documents relied upon by Investigating Agency.

       Findings of Court:

       High Court, in present case, adopted an inappropriate approach whilst considering prayer for grant of bail. High Court ought to have taken into account totality of material and evidence on record as it is and ought not to have discarded it as being inadmissible.