TaxTMI 
TaxTMI 
TaxTMI 
2014 (3) TMI 1219
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....isions 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 Sectio....
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....e entire episode is evident from the fact that the so-called statement under Section 164 Cr.P.C., by A-6, was got recorded before a Magistrate at Delhi, where no case, whatever, is pending, and the leakage thereof by the investigation agency to the press. He submits that it speaks volumes about the intention of the respondent, to take advantage of an unfortunate incident, to implicate an otherwise respectable organization. Learned counsel submits that even from a perusal of the selected and partly covered documents, filed along with the charge-sheet, it becomes clear that the versions said to have been recorded from the various witnesses, such as P.Ws. 118, 129, 130 the artificiality is evident. He submits that the lack of consistency on the part of the respondent is evident from the fact that A-7 and A-9 in the case were granted bail by the trial Court, way back on 26-11-2012 on the ground that charge-sheet was not filed within time, and the respondent did not feel anything objectionable, when A-7 and A-9 are at large, whereas, discriminatory treatment is being accorded to A-3 and A-4, i.e. the appellants herein. 9. Learned Senior Counsel submits that though these aspects are arg....
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....ns against the petitioners are prima facie true. Therefore, in view of the Provision to Sub Section 5 to Section 45(D) of Unlawful Activities (prevention) Act, 1967, even though, the petitioners are in judicial custody since more than two years, they are not entitled for bail. Hence, the petition is liable to be dismissed. 13. From a reading of the said paragraph, it becomes clear that the trial Court did not take into account, any material whatever, which formed part of the record, but simply formed an opinion that, the taking of cognizance of offences, under the relevant provisions of the Act; can lead to the conclusion as to the existence of reasonable grounds to believe that the accusation against petitioners is prima facie true. We are afraid whether this accords with the requirement under Section 43-D of the Act, or the principles, that govern the grant of bail for the accused, alleged to have committed offences punishable under the provisions of that Act. 14. If mere taking of cognizance of a crime were to have resulted in existence of a "prima facie true case" against the concerned person, i.e. the accused, there would not have been any necessity for the Parliament to req....
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....ations after following the prescribed procedure. Once an organization is prohibited under the Act, any person associated with it, becomes amenable for trial, for the offences punishable under the various provisions of the Act, apart from other penal enactments. The provisions of the Act also get attracted, if an individual, though not associated with any prohibited organization, indulges in disruptive and terrorist activities, in association with other individuals. 20. Having regard to the gravity of the offences that become triable under the provisions of the Act, the Parliament introduced Section 43-D of the Act, making it some-what difficult for a person accused of such offence, to get bail. The relevant portion thereof reads, Sec. 43-D. Modified application of certain provisions of the Code: xxx xxx (5) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act. (6) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecuto....
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....s a Latin expression, and its English equivalent is, "at first appearance". In Webster dictionary, its meaning is given as under: Having any appearance of proving the fact though it may not constitute certain proof. 25. In The Law Lexicon of P. Ramanatha Aiyar, the following meanings are given: A prima facie case is that amount of evidence which would be sufficient to counterbalance the original or general presumption of innocence, and warrant a conviction if not then encountered and controlled by evidence tending to contradict it and render it improbable, or to prove other facts inconsistent with it. "Prima facie," in criminal cases, means proof beyond all reasonable doubt. Prima facie evidence. Prima facie evidence of a fact, says Mr. Justice Story, is such evidence as, in the judgment of the law, is sufficient to establish the fact, and, if not rebutted, remains sufficient for that purpose. Other Definitions. Prima facie evidence is evidence which, standing alone and unexplained, would maintain the proposition and warrant the conclusion to support which it is introduced. Prima facie evidence is that which suffices for the proof of a particular fact until contradicte....
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....nable ground for believing that the accused is guilty. Hence, the presumption of innocence, which always runs in favour of the accused, is displaced only on the prosecution showing existence of reasonable ground to believe that the accused is guilty. (See Union of India v. Thamissharasi, (1995) 4 SCC 190, and Union of India v. Shiv Shankar Kesari, (2007) 7 SCC 798). 98. Coupled with the above, it is also noticeable that the proviso to Section 43-D(5) does not require a positive satisfaction by the court that the case against the accused is "true". What is required is a mere formation of opinion by the court on the basis of the materials placed before it. The formation of opinion cannot be irrational or arbitrary. Such formation of opinion cannot be based on surmises and conjectures; but must rest on the materials collected against the accused. Since the presumption of innocence runs in favour of the accused, it logically follows that if there are, in given circumstances, grounds for believing that the case, against the accused, is true, a case of commission of offence under Chapter IV or Chapter VI of the UA (P) Act, 1967, can be said to have been made out and when such a case is....
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....covering letter of apology, while returning the amount confiscated from the accused. In contrast, a Scheduled Caste Leader, who made his way from a poor family to national level, was convicted on the allegation that he took a bribe of Rs. 1 lakh, in relation to a non-existent contract on the basis of a sting operation by an otherwise non-descript news agency, at that time. If the stories in the magazines in the recent past are to be believed, the fame of the sting operation enabled the person heading it; to acquire property, worth few thousands of crores of rupees, whereas the victim thereof, who felt it a matter of pride to have undergone detention of more than one year during emergency; met with an untimely death under the burden of humiliation, when he was branded as "a threat to the national security", when his bail petition was being heard. It is a different matter that the 'time', the ultimate leveler; made the master sting operator to orchestrate a complaint against himself, and now he may be realizing that coming out of a jail after committing a serious crime is not that easy, as sending a gullible person into prison. 32. Even in the on-going cases, the difference ....
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....tion 43-D(6) of the Act, on the one hand, and the right of an accused to be granted bail, particularly, after the charge-sheet is filed, on the other hand. Certain factors may be of substantial guidance in this behalf. Here itself we make it clear that what we propose is a humble attempt, and by no means, it is an exhaustive exercise. 35. The following instances or circumstances, in our view, would provide adequate guidance for the Court to form an opinion, as to whether the accusation in such cases is "prima facie true": 1) Whether the accused is/are associated with any organization, which is prohibited through an order passed under the provisions of the Act; 2) Whether the accused was convicted of the offences involving such crimes, or terrorist activities, or though acquitted on technical grounds; was held to be associated with terrorist activities; 3) Whether any explosive material, of the category used in the commission of the crime, which gave rise to the prosecution; was recovered from, or at the instance of the accused; 4) Whether any eye witness or a mechanical device, such as CC camera, had indicated the involvement, or presence of the accused, at or around the s....
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....d of violating human rights and ordered to be arrested. The instances of similar nature in civilian life were also plenty. 40. Reverting to the facts of the case, the allegation against the appellants is that while one of them purchased a SIM card, the other purchased a cell phone, and those devices were used in the explosion. The identified SIM card and cell phone are not those, which were referable to the bomb, that was exploded, but to the one, which was stated to be an unexploded device, recovered from the scene. While the SIM card is said to have been purchased in the State of Jharkhand, the cell phone, in the State of Haryana. 41. It is not as if those two objectives are explosive in nature. 3/4th of the country's population is now using cell phones and SIM cards. Even according to the prosecution, the appellants are not the purchasers of the SIM card and the cell phone. There is some uncertainty as to number and manner of purchase of such objects. 42. The entire record is placed before us, and learned Senior Counsel for the appellant and learned Special Public Prosecutor have taken us to the depositions of the concerned witnesses. 43. The trial is yet to commence. If....
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.... who sheltered/shielded/harboured the accused/suspects, known and unknown. 47. The charge-sheets, as of now, are silent as to who planted the bombs and who exploded them. In this state of affairs, it is difficult to conclude that there exists reasonable ground to believe that the accusation against the appellants is prima facie true. 48. The evidence of the witnesses has to be adduced, they must come out clean in the cross-examination and several links, that are necessary to make it a complete chain; must be provided. None of the factors, which we enlisted in the preceding paragraph, are present here. Though extensive arguments are made on the basis of the statements recorded from the listed witnesses, we desist from dealing with them, lest the discussion impacts the trial. 49. Some other important reasons that weigh with us are that the only basis for implicating the appellants herein, viz., the alleged confessional statement of A-6; is attacked from several angles. 50. An application filed by that very witness raising objection to the recording of the statement and the truth thereof is said to be pending. The reason that prompted the facilitating of a meeting, or discussion b....