TaxTMI 
TaxTMI 
2017 (8) TMI 1760
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....g Registration No. MH-15-P-4572. As a result of the said explosion, six persons were killed and about 100 persons had received injuries of various nature. Damage to the property was also caused. (b) The offence came to be registered under CR No. 130/2008 in Azad Nagar Police Station, Malegaon under Sections 302, 307, 326, 324, 427, 153-A and 120-B of the Indian Penal Code, 1860 (in short 'the IPC') read with Sections 3, 4, 5 and 6 of the Explosive Substances Act read with Sections 3, 5 and 25 of the Arms Act, 1959. (c) During the course of investigation, the samples collected from the place of offence were sent to the Forensic Science Laboratory at Nasik and the same were found to be containing Cyclonite (RDX) and Ammonium Nitrate. On 18.10.2008, the provisions of Sections 15, 16, 17, 18, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967 (Amended) 2004, (in short 'the UAP Act') were invoked and the case was entrusted to Deputy Superintendent of Police, (HQ), Nasik Rural. On 26.10.2008, the Anti-Terrorist Squad (ATS), Mumbai took charge of the investigation and on 29.11.2008, the provisions of Maharashtra Control of Organized Crime Act, 1999 (in....
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....ection to the said offence. The appellant herein preferred a Bail Application being No. 42 of 2008 before the Special Judge under MCOCA for Greater Mumbai. By order dated 31.07.2009, the Special Judge discharged the appellant and other co-accused from the offences under MCOC Act and directed to transfer the case to the regular court at Nasik. The State Government, being aggrieved by the order dated 31.07.2009, filed an appeal being 866 of 2009 before the High Court. A Division Bench of the High Court, vide order dated 19.07.2010, set aside the order dated 31.07.2009 and restored the bail application filed by the appellant herein for hearing on merits. The appellant herein went in appeal before this Court and filed Criminal Appeal Nos. 1969-1970 of 2010. It would be appropriate to mention here that after filing of the charge sheet by ATS, Mumbai, the investigation of the same was started by the National Investigation Agency, (NIA), New Delhi as per the order of the Government of India dated 01.04.2011 and on 13.04.2011, the NIA re-registered the offence in respect of the said incident as CR No. 5/11. (h) This Court, in Prasad Shrikant Purohit vs. State of Mah....
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....nal Appeal No. 664 of 2016. The NIA resisted the bail application of the appellant herein on various grounds before the High Court. On 25.04.2017, a Division Bench of the High Court, dismissed the bail application of the appellant herein. Aggrieved by the order dated 25.04.2017, the appellant has filed this appeal before this Court by way of special leave. 4) Heard Mr. Harish Salve, learned senior counsel for the appellant herein and Mr. Maninder Singh, learned Additional Solicitor General for the respondent-State and Mr. Amarendra Sharan, learned senior counsel for the intervenor-Nisar Ahmed Haji Sayed Bilal, who is the father of one of the deceased. Point(s) for consideration:- 5) The only point for consideration before this Court is whether in the present facts and circumstances of the case, the appellant has made out a case for grant of bail or not? Rival contentions:- 6) Mr. Harish Salve, learned senior counsel for the appellant herein contended before this Court that in view of the supplementary report filed by the NIA, dropping the charges in respect of the offences under the MCOC Act, it has to be held that there is no prima facie case against the appell....
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....o informed that it was a 'covert operation' of Military Intelligence. 9) Learned senior counsel further contended that the Report of Inquiry (RoI) also reveals that the RDX was planted by the ATS officer in the house of Sudhakarn Chaturvedi (A-11). The statements of PW-180 and PW-183 also indicate the same but the courts below disbelieved the version of NIA in this regard. 10) Further, learned senior counsel strenuously contended that whether the amended provision of Section 43(D)(5) of the UAP Act be applied retrospectively to the appellant herein. The said provision had been amended on 31.12.2008 while the incident had taken place on 29.09.2008. He further contended that the High Court was not right in holding that the right of bail of the accused is a procedural right and cannot be considered as a substantive right for retrospective applicability of the provision. Further, the sanction granted for prosecution of the appellant under Section 45(1) of the UAP Act was not valid. He further stressed upon the point that the High Court erred in ignoring the Doctrine of Parity while granting bail to Pragya Singh Thakur (A-1) wherein the court has taken into account the changed cir....
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....statement of prosecution witnesses recorded under Sections 161 and 164(5) of the Code of Criminal Procedure, 1973 (in short 'the Code'), intercepted telephonic conversations between the appellant herein and co-accused persons and lastly the finding of traces of RDX in the house of co-accused Sudhakar Chaturvedi (A-11). With regard to the transcription of the conversations of the meetings, it was urged from the side of the appellant that there was no such conspiracy hatched between the persons present in the meeting to commit bomb blasts at Malegaon and the persons present have expressed their general opinion about the then prevailing political and social situation. In this backdrop, it is relevant to note that the appellant herein was a serving Army Officer and was associated with Military Intelligence and Interior Terrorism (Insurgency Activities). In the statement of PW-21, it has been revealed that immediately after the alleged conspiracy meeting, he found the appellant herein disclosing the details of the said meeting to his superior officers in Military Intelligence. Even the appellant herein also informed that it was a 'covert operation' of Military Intelligence and he attend....
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....e above, it would be relevant to quote the retracted statement of PW-55, mentioned in the charge sheet filed by the NIA, wherein he stated that he did not retract in front of the Magistrate while his statement was being recorded under Section 164 of the Code due to threat and pressure of the ATS. However, he sent one complaint to Maharashtra State Human Rights Commission, Mumbai on 05.10.2009 stating that he was forced to give the confessional statement as dictated to him by the ATS Mumbai that too before transfer of the investigation of the case to the NIA. He further alleged that the following lies were dictated to him to depose before the Magistrate by the ATS which he also incorporated in the complaint sent to State Human Rights Commission which are as under:- (1) That Lt. Col. Prasad Purohit gave him 3 weapons and ammunition to be kept in his house for a month sometime in 2006. The description of the weapons was also dictated to him. (2) That he saw RDX in the house of Lt. Col. Prasad Purohit in a green sack at Devlali. (3) That Lt. Col. Purohit confessed to him about having supplied RDX for Samjhauta Express Blast. (4) That Lt. Col. Purohit....
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....ase. 21) The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider, among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. 22) Before concluding, we must note that though an accused has a right to make successive applications for grant of bail, the cour....