V. Dutta Gyani, J.
These applications for grant of anticipatory bail under section 438 CrPC as originally presented to the Bombay High Court, have been transferred to this Court by an order of the Supreme Court passed on 24.10797 in Criminal Appeal Nos.1004,1005 and 1006 of 1997 (1997 (2) GLJ 533) (arising out of SLP (Crl).No.3029, 3163 and 3262 of 1997 respectively).
2. These bail petitions were to be heard on 4.11.97, but for want of original record, could not be taken up for hearing as till then the record was not received by this Court as it was not sent by the Bombay High Court. Since the interim order as passed by the Bombay High Court had been extended upto 7.11.97 by the Supreme Court, the hearing on 4.11.97 had to be adjourned to 7.11.97, reminding the Bombay High Court to send the record which was received in the Registry of this Court on 6th, accordingly it was on 7th. that the matter was finally and fully heard.
3. Mr. Jethmalani, learned senior counsel appearing for the appellants prefaced his argument by denouncing the prosecution as 'persecution' carried on through the investigation in the name of the State, to tarnish the fair name and image of the Tatas', who have rendered a yeoman, service in building the nation. Tracing the clear track record of service, with particular reference to the State of Assam, he questioned the propriety of initiation and investigation of the case, singling out Tata Tea, attributing the same, to sinister political motives, lack of co-ordination between Central and State Govt in handling and solving the burning issue of insurgency and militancy extremists activities in the State and a mere sense of satisfaction of personal ego of powers that be.
4. Mr. P. Pathak, learned Additional Advocate General, appearing for the respondent State, while refuting the imputation of motives submitted that the accusations made against the applicants are of a very serious nature. They are funding and abetting the unlawful activities of a banned organisation, like United Liberation Front of Assam (for short ULFA).
5. Dealing with the accusations as made against the accused-appellants, Mr. Jethmalani. learned senior counsel, contended that helping a patient with a Cardiac Disorder or Caesarean Operation would not attract unlawful activities as defined under section 2 (f) of the Unlawful Activities Prevention Act, 1967, nor would it be punishable under section 13 thereof. The other accusation as regards the Bangkok Meeting, pointing to a letter from Joint Director, Intelligence, Shri Sehgal, placed on record along with the affidavit, learned counsel argued that the meeting about which much has been said was not only within the knowledge of the Central authorities but. also under clear instructions from them. In this context the learned counsel explained the underlying scheme of the Act with particular reference to its object of preserving and protecting the sovereignty and integrity of India, a subject which exclusively falls within the Union List and but for the fact that the offence made punishable under section 13 of the Act is cognizable under section 14 thereof, the State has no role. Of course, he did not dispute the power of the State-police to take cognizance of the offence punishable under section 13 of the Act. Referring to sub-section (3) of section 13 of the Act in the light of the letter and instructions given by Mr. Sehgal. he pointed out that the negotiations carried out at Bangkok cannot be construed as an unlawful activity. Referring to section 107 IPC with particular emphasis on Explanation 2 thereof, it was contended that the accusations as made and taken on their face value, yet would not constitute adding or abetting any unlawful activity as defined under section 2 (f) of the Act. Referring to the incident of abduction of Tata Tea Manager, Mr. Bolin Bordoloi, learned counsel pointed out that Tatas refused to succumb to the illegal demands of the militants unlike other tea companies operating in the State, yet the treatment meted out to the Tata Tea officials - singling out the company, while the Chief Minister of the State in a Press Conference held on 20th September. 1997 came out with a statement that as many as 64 companies were funding the militants, so much so. that a top IPS Officer had procured Passport for top ULFA leaders while a former Minister in the erstwhile Congress Govt had to pay Rs.30 lakhs as ransom to the ULFA and it was stated as a ground of detention, in support of the detention order passed against the ULFA activities. While the Tata Tea Limited resisted all pressures and paid not a single pie even at the risk of life to its Executives and Officers. He denounced the charges under sections 120B/121A/121/124A IPC read with section 10/13 of the Unlawful Activities Prevention Act, 1967 as ridiculous. It was argued mat meeting the expenses of medical treatment at Bombay was a part of the humanitarian schemes undertaken by the company, who refused to pay 'taxes' or succumb to the extortionist activities of the ULFA. It was in this context that he explained and highlighted the meaning of Unlawful Activities as defined under the Act and referred to us the old judgment of the Madras High Court as reported in ILR (2) Madras 137, which still holds the field, so far as aiding and abetting a crime is concerned. So far as Bangkok Meeting is concerned, the applicants stand is that the Tata Tea Limited has been used by the Intelligence Agencies of the Central Govt to keep their window on insurgents open for dialogue and negotiations. It was all done with the knowledge of the Intelligence Agencies in Delhi. An envelop containing the correspondence was kept ready and available for Court's inspection which considering the stage of investigation and the fact that we are merely concerned with an application for grant of anticipatory bail, we have deliberately not looked into.
6. It cannot be overlooked that we are considering an applications for grant of bail under section 438 CrPC and the applications have to be decided in the light of the accusations made, the seriousness of the charges, as already noted above. The pleas raised by the learned counsel, are relating to merits of the case which is yet to be gone into. At this initial most stage, we have to go by the accusations as made against the accused-applicants.
7. Mr. Pathak, learned Additional Advocate General, on the other hand, maintained that there is material enough on record to point to the complicity of the accused in aiding and abetting the unlawful activities of a banned organisation.
8. Mr. Jethmalani highlighting the horrors of militancy submitted that the State Govt and the Govt of India have not been able to contain and arrest the ULFA activities, which include arson, kidnapping, ransom, use of lethal weapons, like bombs and AK-47, and murder. Referring to the testimony furnished by the Govt to the D.K. Jain Tribunal at Delhi, in compliance of section 5 of the Unlawful Activities Prevention Act. where it was conceded that protection money was being paid to avoid murder mayhem by almost even' section of the population including politicians, organisations, trade and business, industrialists, professionals and Govt departments, such as, sales tax and octroi and even police. Mr. Jethmalani questioned,
"How can the humanitarian gesture of providing medical treatment be regarded as aiding an unlawful activity?"
As already indicated above, we are not at the moment concerned with the anatomy of violence. What we are primarily concerned with is the anticipatory bail petitions preferred by the applicants. The crucial question is, whether they should be admitted to anticipatory bail ? What are the relevant considerations that governs Court's discretion and decision in granting anticipatory bail under section 43 8 CrPC Some considerations which can be called out from the judgments of the Supreme Court are - (i) nature and seriousness of the charges, (ii) context of offences likely to led to the making of charges, (iii) reasonable possibility of applicant's presence not being secured at the trial, (iv) reasonable apprehension of witnesses being tempered with, and last but not the least, (v) larger interest of the public and the
State (see Pokar Ram vs. State of Rajasthan, AIR 1985 SC 969). Although it was a case of causing gun shot injuries to the deceased, while the case at hand considering the nature of accusations levelled against the accused applicants is far more serious than a broad day-light murder. The horrors of unlawful activities as highlighted by the learned counsel for the applicants are not merely sought to be institutionalised but also sought to be legitimised. It is for this reason that the impact of any order to be passed on the community at large is required to be taken into account. We are not unmindful of the liberty of a citizen which should be jealously guarded by the Courts none the less when a person is accused of serious offence, as noted above, collective interest of the community is also to be taken into account so that the people at large do not lose faith in the institution. Anticipatory bail under section 43 8 CrPC cannot be claimed as a matter of right nor can it be said that it forms essential ingredient of
Article 21 of the Constitution as has been pointed out by the Supreme Court in
State of Madhya Pradesh vs. Ramakrishha Balothia,
AIR 1995 SC 1198.
9. When investigation is still at the initial most stage, taking a view of the whole matter as urged by the learned senior counsel Mr. Jethmalani, which is virtually the defence of the accused applicants against the accusations and charges levelled against them would tentamount to annuling the effect of investigation. We are mindful of the grievance made by the learned counsel that there are other tea companies funding the activities and they are not being proceeded against, we reiterate a fair and impartial investigation in such matters is a must. But, merely because 'A' is not proceeded against, does not necessarily mean that 'B' should not also be proceeded against. It is the duty of the State, more so in face of its claim to combat the menace of insurgency and militancy to see that those funding the activities are not spared.
10. In one of its very recent pronouncements as reported in Directorate of Enforcement & another vs. PV Prabbakar Rao, (1997) 6 SCC 647, which relates to Urea Scam, violation of Foreign Exchange Regulation involving huge amounts the Supreme Coifrt has not only held that the High Court was not justified in granting anticipatory bail to the accused respondent in face of the collected material disclosing an accusing finger against the accused quoting a passage from the Constitution Bench in Gurubaksh Singh (AIR 1980 SC 1632) which reads as follows :
"... A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail."
11. Learned counsel referring to section 172 CrPC reminded us to the limited use of case diary. We are not making use of the case diary as evidence. It is the accused applicants who faced with the accusations as they are, have placed the material before us by way of an affidavit, the documents including press clippings for consideration in support of their case for grant of anticipatory bail. When investigation is still on and such serious charges like waging war for overthrowing the Govt by force, sedition and criminal conspiracy are made against the accused applicants for which it cannot be said that there is no material, as indeed the accused, have come with their own explanations and defence justifying their funding and participating in meeting held in foreign country with the banned organisation like ULFA. Admitting them to anticipatory at such a stage, would virtually means accepting their defence stand which is essentially a matter to be considered at the appropriate stage in trial of the case. We do not propose to make any further comments in this behalf and also clarify that any observation made herein will not in any manner affect the merits of the stand taken by the accused.
12. It was submitted by the learned counsel that the applicants have not only co-operated with the investigation but have also been interrogated for long hours. The officers of the company were produced whenever asked for and one of them, Mr. Dogra, the General Manager of the company in Assam was in fact arrested and subsequently released on bail by order of this Court on 26.9.97, which has not been appealed against by the State. He has further assured of all co-operation with the investigating agency to avoid custodial interrogation which according to him in the instant case does not arise," as no corpus delicti is to be recovered and no witnesses are to be traced and search and seizure have already been made in view of the extensive interrogation. Learned counsel urged that no case has so far been made out against the accused. No doubt that the question of recovering the corpus delicti aoes not arise in the instant case, but that by itself does not rule out further search and seizure, particularly in view and nature of the serious charges of criminal conspiracy, sedition, waging of war and funding of unlawful activities is concerned, as such, the submissions made by the learned counsel in this behalf presumptuous and proceeds on assumptions. Granting anticipatory bail at such a I stage would undoubtedly intrude upon the domain of investigation. It was in fact 1 during the course of his submissions that the learned counsel paid rich tribute to the Assam police for its descent behaviour during the course of interrogation of its officers. Even while disallowing the applications, we do not for a while be construed to suggest permissibility of adopting questionable means, methods and forms of interrogation. The basic human values during interrogation must be honoured and resort to questionable forms be avoided. The interrogation is to be strictly in accordance with law and keeping in view the guidelines given by the Supreme Court in DK Basu vs. State of West Bengal, reported in (1997) 1 SCC 416.
13. For the foregoing reasons, these applications for grant of anticipatory bail, are liable to be dismissed, and are accordingly dismissed.