Devendar Gupta And A... v. National Investigati...

Counsel for the appellants: Sri N. Ramachander Rao, Sr.Counsel Counsel for the Respondent: Sri P. Vishnuvardhan Reddy, Special P.P.

>HEAD NOTE:

?Cases referred

1) AIR 1958 SC 79

2) 2011(3) GLT 615

: (Per the Hon'ble Sri Justice L. Narasimha Reddy) 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.

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.

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 trial Court granted bail through its order dated 26-11-2012.

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.

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 in touch with a person, who too is an accused in relation to another case pertaining to the same incident, the so-called change of mind of A- 6; are nothing but stage-managed events. He contends that the identification parade was conducted after the photographs of the appellants were widely publicised.

He further submits that the lack of transparency in the 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 PWs 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.

Learned Senior Counsel submits that though these aspects are argued before the trial Court, in detail, the bail application was dismissed, simply by observing that Section 43-D of the Act prohibits granting of bail. He submits that the view taken by the trial Court, that the very taking of the cognizance of the matter amounts to satisfaction of the Court, as to existence of prima facie case; is untenable in law.

Sri P. Vishnuvardhan Reddy, learned Special Public Prosecutor for the respondent, on the other hand, submits that this is a serious case in which, a bomb blast has taken place, right in a place of worship, resulting in loss of human life and injuries, apart from damage to the property. He submits that A-3 and A-4 stands on a different footing, when compared to that of A-7 and A-9. He contends that the order passed by the trial Court on earlier occasion, granting bail to the appellants, was set aside by this Court, and on remand, the trial Court dismissed the application, on finding that the allegations against the appellants are serious in nature. He submits that extensive investigation was conducted and a detailed charge- sheet was filed. It is also pleaded that the trial would commence shortly. He relied upon certain precedents.

It has already been mentioned that the trial Court has granted bail to the appellants, but in Criminal Appeal No.1197 of 2012 this Court reversed the same. The general principle, governing grant of bail, and in particular, when the case is governed by the Act, were taken note of. Reference was also made to the relevant provisions of law, and the precedents. Summing up its discussion, this Court said,

Para-31: In view of the fact that the Sessions Court has not considered the parameters for grant of bail and did not apply its mind to the other considerations set out above including the provisions of the Unlawful Activities (Prevention) Act, 1967, the impugned order is set aside...

Accordingly, the matter was remanded. After remand, the trial Court took note of the contentions of the parties and dismissed the application with the following observation:

...Since this court has already taken cognizance for the offences under Sections 13, 5 read with sections 16, 18, 19, 23 of Unlawful Activities (Prevention) Act, 1967 as amended in the year 2008, it is deemed that this court has already come to the conclusion that there are reasonable grounds to believe that the accusations 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.

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.

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 require the trial Court to undertake any exercise, as mentioned in proviso to Section 43-D(6) of the Act. To put it in plain words, if one is to be guided by the observation made by the trial Court on taking the cognizance of a case, in which the provisions of the Act are invoked, the accused virtually acquires the character of a convict and his fate would be sealed, unless he is acquitted by the trial Court. Such an approach can not at all be countenanced.

Strictly speaking, once we disapprove of the view taken by the trial Court, as mentioned above, the matter must go back to the trial Court for consideration, on merits. However, since the entire material that formed part of the record is made available to us, and since it happens to be the second round, we examined the matter, in detail, with reference to the merits, on being ably assisted by the learned counsel for the parties.

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 the prison, to serve the sentence imposed by the Court. Initial arrest of an accused is to enable the police to interrogate him. Thereafter, the pre-trial detention of the accused has a limited purpose to serve.

It is only to ensure that the person alleged to have committed the offence does not meddle with the prosecution, particularly when the situation is serious or grave; that he is arrested and detained as an under-trial prisoner. The investigation comes to an end, with the filing of the final report, under Section 173 of Cr.P.C., which, in the ordinary parlance, is called as 'charge- sheet'. Through catena of its judgments, the Hon'ble Supreme Court held that "bail is a rule and jail is an exception, vis--vis a person facing trial". It only reflects the highly respected principle of criminal law, that a person is deemed to be innocent, till he is proved to be guilty.

Once a charge-sheet is filed, or if the prosecution fails to file the charge- sheet, within the stipulated time, a valuable right accrues to an under-trial prisoner, to press for bail.

The Act was brought into existence to meet extraordinary situations, and in particular, to deal with the orchestrated crimes through organizations, aimed at destabilization or causing damage to the country. The Act enables the Government to impose prohibition on the organizations 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.

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 Prosecutor has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against the person is prima facie true.

(7) The restrictions on granting of bail specified in sub-section (6) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.

(8) Notwithstanding anything contained in sub-sections (6) and (7), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing."

From a perusal of this, especially the proviso, it becomes clear that the Court dealing with the case shall not grant bail to any person, if, on a perusal of the case diary, or the charge-sheet, it is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. This is an extraordinary phenomenon and a deviation from the ordinary Criminal Law. Naturally, the approach to it is required to be cautious and careful.

By its very nature, exercise to be undertaken by a Court in relation to this provision is some-what typical and delicate.

The expression of the opinion in this behalf must be in such a way that, it does not have any bearing upon the trial. The purpose for which the Parliament employed the expression "prima facie" must be borne in mind. If, at the time of considering the application of bail, the Court takes the view that the accusation is not true, the prosecution will suffer a serious dent. Similarly, if the Court takes the view that the accusation is true, the Court can be accused of, pre-judging the charges. The Court has to adopt what is known as "Marjala Kishora Neethi (The care which a cat is expected while carrying the kitten in its mouth from one place to another). The formation of opinion must be, for the limited purpose of considering the application for bail.

Before undertaking further discussion, it is important to take note of the meaning of the words "prima facie". It is 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".

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 contradicted and overcome by other evidence. For example, the certificate of a recording officer is prima facie evidence of a record, but it may afterwards be rejected upon proof that there is no such record."

The Hon'ble Supreme Court in Martin Burn Ltd. v. R.N. Banerjee1, explained the expression "prima facie", as under:

A prima facie case does not mean a case proved to the hilt but a case, which can be said to be established if the evidence, which is led in support of the same, were believed. While determining whether a prima facie case had been made out, the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion, in question, and not whether that was the only conclusion, which could be arrived at on that evidence.

This expression "prima facie", is used in civil cases also, particularly in the context of deciding the applications for temporary injunctions. Broadly understood, it connotes that, without the help of any other material, the one, which is before the Court, must be sufficient to accept the proposition put forward by the concerned party. In the context of Section 43-D of the Act, the adjective, "prima facie" qualifies the strength or nature of the case of the prosecution, at the stage when the application for bail is being considered, which obviously, is before trial. The other expressions occurring in proviso, that assume significance are, "reasonable ground" and "true". The Guwahati High Court in Jibangshu Paul v. National Investigation Agency2 has undertaken extensive discussion about them, with reference to the decided case law.

After taking into account, the law laid down by the Supreme Court in various cases, the learned Judges of the Guwahati High Court have explained the purport of the expression "reasonable ground", and "true", as under:

"97. The expression, 'reasonable ground', means, it may be noted, something more than prima facie ground, which contemplates a substantially probable case for believing that the accused is guilty of the offence(s) alleged. Under Section 437 Cr.P.C, an accused is not to be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence, which is punishable with death or imprisonment for life.

Under Section 437 Cr.P.C, the burden is on the prosecution to show existence of reasonable 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, reported in (1995) 4 SCC 190, and Union of India v. Shiv Shankar Kesari, reported in (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 made out, it would be tantamount to saying that reasonable grounds exist for opining that the accusations are prima facie true. In such a case, the bar, imposed by the proviso to Section 43-D(5) on the court's power to grant bail, gets attracted."

On finding that the allegations made against the accused therein cannot lead to a conclusion that they are not part of any terrorist gang, the Court granted bail. The other precedents relied upon by the parties are not directly on the point. We therefore, do not propose to refer to them.

Care is required to be taken to ensure that the expression is not understood or interpreted in such a way, as to place more restrictions on an accused, to seek the bail, than what were really intended by the Parliament. Such an approach would accord with the general principles of interpretation of penal law, and the primacy, which, the law accords to the liberty of a citizen. It is not difficult to discern the reason that prompted the Parliament to incorporate such a provision. The experience at home, or abroad, particularly in the recent past, has shown that graver the crime, more complicated becomes the process of investigation. Every effort would be made by a criminal, who perpetrates crimes against the society, by resorting to terrorist acts, not only to remove the traces of evidence, but also to leave certain clues, that would mislead the investigating agency. In the larger context, the role of the law enforcing and investigating agencies virtually becomes enviable, not only from the point of view of their duties, but also the circumstances under which, they have to work.

One cannot ignore the fact that agencies of such a nature have to function under the Governments, run by political parties, for whom the predominant consideration would be, as to on which side of the line drawn by them, are the persons or the individual organizations; accused of the offence. Over the period, we have witnessed contours of the high profile cases changing, and the cases themselves acquiring different characteristics, with the change in the political establishments. The role of the Courts is almost dictated by such transformations. BOFORS case, which has virtually shaken the nation, and where allegations of huge amount of money, changing hands, were made with tonnes of supporting material; ultimately ended almost with a 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-descripit 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.

Even in the on-going cases, the difference of approaches is manifesting itself. For instance, the leader of a political party in the State of Andhra Pradesh is being prosecuted by the CBI itself, on the allegation of acquisition of disproportionate assets and other related matter. Ever since he was arrested, the publicity given to a case was such that, T.V. channels made their semi-permanent establishments in the Court, to cover the events, that took place day after day. Senior-most counsel were engaged, not only by the accused, but also by the CBI, for arguing every petition, either in the trial Court, or in the High Court. The sensationalisation of the case has gone to such an extent, that just on a signal given by the senior official of the CBI, three senior judicial officers had to be suspended, whereas the material disclosing that very officer, making or receiving thousands of phone calls from particular individuals, was blinked at. The episode went on for more than one year and ultimately when 'a decision was taken at appropriate level', the memo in that behalf was submitted straight to the Court, without even information to the Public Prosecutor, paving the way for bail.

We are making reference to these episodes only to drive home the point, that, till the truth comes out, it is always better to keep the fingers crossed, and to respect the age-old principle, that an accused cannot be equated to a convict, even before the trial is conducted and the judgment is rendered. Further, whatever be the considerations in economic offences, even an inadvertent attempt to implicate persons in terrorist related cases, otherwise than on the basis of strong and foolproof evidence would, as an immediate consequence, embolden, if not encourage the real perpetrators.

We made an effort to find out as to whether any guidelines have been laid by the Hon'ble Supreme Court, for the High Courts and Subordinate Courts to follow, in the context of forming an opinion, as to whether the accusation against a person, facing the trial, for the offences punishable under the provisions of the Act, "prima facie true". The issue does not appear to have fallen for consideration before the Hon'ble Supreme Court, though the cases of that nature were dealt with, on the typical facts of those cases.

We are of the view that a decent balance needs to be maintained between the mandate under the proviso to Section 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.

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 scene of occurrence; and

5) Whether the accused was/were arrested, soon after the occurrence, on the basis of the information, or clues available with the enforcement or investigating agencies.

In case the material available with the prosecution, be it, the case diary, or the charge-sheet; reveals existence of any of the factors, referred to above, the Court can form opinion, that there exist reasonable grounds to show that the accusation is "prima facie true". In the absence of such, or other similar factors, formation of opinion to the detriment of the accused would make a serious dent into the realm of the personal liberty. In a way, it can be said that the exercise akin to the one, provided for under the preventive detention law. What becomes common to both the situations is that, the persons are deprived of the liberty, without trial. It is too well-known that where a preventive detention is ordered, the Court or authority is placed under obligation to scrutinize the adequacy of the material, apart from compliance with the procedural requirements.

It may be tempting for the investigating agencies, or some times, to the Courts also, to put the persons behind the bar, without trial, just by taking into account, the nature of allegations. However, the feelings of a respectable citizen cannot be laughed at, or ignored without there being proper basis. One may not expect serious reaction from an actual criminal, when he is detained. In fact, he too feels heart of hearts, that he deserves it, though he may protest. However, when an otherwise upright and innocent person is meted out such treatment, he undergoes a devastating experience.

All of us are aware that the disturbance and turmoil in Punjab in mid 1980's, of the previous century were indeed horrifying. There were instances when certain Senior Judicial Officers absented from Courts on lame excuses, once they sensed that a dreaded criminal was going to be produced before them, for remand.

It is on account of the bravery, commitment and determination of the Police and Para-military Forces, that normalcy was restored. Once that happened, Tarzans of human rights and civil liberties became active and they started persecution of the police officers on the allegations of violation of human rights. An Officer of the rank of the Superintendent of Police committed suicide, on being accused of violating human rights and ordered to be arrested. The instances of similar nature in civilian life were also plenty.

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 Jarkhand, the cell phone, in the State of Haryana.

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.

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.

The trial is yet to commence. If we apply the test of the very concept of "prima facie", we find it difficult to hold that the accusation against the appellants can be said to be true.

The reason is that the prosecution has a very long way to go, to prove its contents. This much however can be said that, if the things exist where they stand now, it would be difficult for a common man, not to speak of a Court, to hold the appellants as guilty.

Except that the prosecution has made an effort to link the case pertaining to the blast in Ajmir, where the appellants herein were shown as accused, no direct evidence has emerged so far. One has to wait till the conclusion of the trial, as to whether the appellants are guilty of the allegations made against them. Substantial part of the charge-sheets are devoted to make allegations in innuendo against an organization and persons associated with it. We are of the view that in the totality of the circumstances, the two charge-sheets: one filed by the CBI and the other filed by the respondent, against the appellants; do not disclose reasonable grounds for believing that the accusation against them is 'prima facie true'. As they stand now, they do not even allege that the appellants played any specific role, such as planting of the bomb, supply of the material to any manufacturer of bomb, or the like.

For instance in the charge-sheet filed by the respondent, the penultimate paragraph reads as under:

The further investigation is being continued in terms of Section 173(8) of the Criminal Procedure Code against the absconding accused Sandeep Dange (A-3) and Ramji (A-4), and other suspects, known and unknown, who were involved in the criminal conspiracy that culminated in the commission of the terrorist act in the instant case on the fateful afternoon of May, 18, 2007.

Similarly, in the charge-sheet filed by the CBI, the penultimate paragraph reads,

Further investigation would be continued in terms of Section 173(8) of the Criminal Procedure Code against the other accused persons, including the absconding accused Sandeep Dange (A-1) and Ramji (A-2) and recently arrested (Nov.19, 2010) accused Swami Asimanand (A-6) and other suspects, known and unknown, who were involved in the criminal conspiracy that culminated in the commission of the terrorist act in the instant case on that fateful afternoon of May 18, 2007, and other suspects who sheltered/shielded/harboured the accused/suspects, known and unknown.

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.

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.

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.

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 between A-6 and another person, connected with the offence, that too, in a high security zone of the prison, or the factors, that warranted the recording of the statement by a Court at Delhi, where no proceedings are pending; are to be explained by the prosecution, over the period.

In the charge-sheet filed by the CBI, the nature of allegations made against A-1 to A-6 (A-5 since dead), is similar.

A-3 and A-4 were said to be absconding at that time. Later on, they were apprehended, but were released by the trial Court, on 26-11-2012. No appeal was preferred by the respondent, against the said order, nor any allegation is made to the effect that A-7 and A-9 pose any threat to the security of the nation.

We hasten to add that our observation is only for the limited purpose of granting bail, and cannot be treated as expression of opinion, on the merits or otherwise of the case.

Lal Singh v. State of Gujarat and another3, relied upon by the learned Special Public Prosecutor; is a case, which arose under the Terrorist and Disruptive Activities (Prevention) Act, 1987, and where the arms and ammunitions used in the terrorist activities were recovered, at the instance of the accused. That is not the case here.

We therefore, allow the Criminal Appeal and direct that A-1 and A-2, i.e., Devendra Gupta and Lokesh Sharma in Special Sessions Case No.3 of 2013 shall be released on bail on their executing bond, for a sum of Rs.50,000/- (Rupees fifty thousand only) each, with two sureties each, for like sum, to the satisfaction of the trial Court, unless their detention is warranted under any other order passed by a Court of competent jurisdiction. _______________________ L. NARASIMHA REDDY, J.

_______________________ M.S.K. JAISWAL, J.

Dt.12-03-2014 After pronouncement of the judgment, learned Special Public Prosecutor made a request that the order be kept in abeyance for some period.

We are of the view that the accused were denied the benefit of the bail quite for some time, and since their personal liberty is involved, we are not inclined to accede to their request.

______________________ L. NARASIMHA REDDY, J.

______________________ M.S.K.JAISWAL, J.

Dt.12-03-2014