Supreme Court of India
SHOMA KANTI SENversusTHE STATE OF MAHARASHTRA & ANR.
- Citation
- 2024 INSC 269
- Decided
- 5 April 2024
- Disposal
- Appeal(s) allowed
- Bench
- ANIRUDDHA BOSE
Holding
The allegations under Chapters IV and VI of the UAPA are not prima facie true, and the appellant is entitled to bail despite the High Court’s earlier order.
Summary
Shoma Kanti Sen was arrested in June 2018 in connection with the Elgar Parishad event and charged under the Indian Penal Code and the Unlawful Activities (Prevention) Act, 1967 (UAPA). The High Court dismissed her bail application, directing her to approach the trial court, after the investigation was transferred to the National Investigation Agency (NIA) and a second supplementary charge‑sheet was filed. The Supreme Court examined whether the allegations under Chapters IV and VI of the UAPA were prima facie true, considering the appellant’s age, health, six‑year detention without framing of charges, and the lack of concrete evidence of her participation in terrorist acts or fund‑raising. Applying the test under Section 43D(5) of the UAPA and precedents on bail, the Court found no reasonable ground to believe the accusations were prima facie true. Consequently, the Court set aside the High Court order and granted bail with conditions, directing the Special Court to supervise the release. The appeal was allowed and the related petition disposed.
Issues considered
- The applicability of the bail‑restricting provisions of Section 43D(5) of the UAPA to the appellant.
- Whether the offences alleged under Chapters IV and VI of the UAPA are prima facie true.
- Whether the High Court’s direction to approach the trial court for a fresh bail application was a permissible exercise of jurisdiction.
- The impact of prolonged pre‑trial detention, the appellant’s age and health on the bail decision.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 167, s. 173, s. 207, s. 438, s. 439
- Indian Penal Code, 1860s. 117, s. 120B, s. 121, s. 121A, s. 124A, s. 153A, s. 34, s. 505(1b)
- National Investigation Agency Act, 2008s. 21(2)
- Unlawful Activities (Prevention) Act, 1967s. 13, s. 15, s. 16, s. 162, s. 17, s. 18, s. 184, s. 18B, s. 20, s. 206, s. 38, s. 39, s. 40, s. 43-D(5)
Subjects
bailUAPAprima facie testpre‑trial detentionNIA investigationterrorist offencesSection 43D(5)Article 21long‑term incarcerationspecial court
Judgment
[2024] 4 S.C.R. 270 : 2024 INSC 269
Shoma Kanti Sen
v.
The State of Maharashtra & Anr.
(Criminal Appeal No. 2595 of 2023)
05 April 2024
[Aniruddha Bose* and Augustine George Masih, JJ.]
Issue for Consideration
The appellant was detained on 06.06.2018. The appellant
assails the order of a Division Bench of the High Court passed
on 17.01.2023, disposing her application for bail with liberty to
approach the Trial Court for filing a fresh application for bail. The
issue arises for consideration that whether the offences under Part
IV & VI of the Unlawful Activities (Prevention) Act, 1967, alleged to
have been committed by the appellant, are prima facie true or not.
Headnotes
Penal Code, 1860 – ss. 153A, 505 (1b), 117 r/w. s.34 – Unlawful
Activities (Prevention) Act, 1967 – ss.13, 16, 17, 18, 18B, 20, 4
38, 39, 40 & 43-D– National Investigation Agency Act, 2008 –
The prosecution’s case is that in a programme, provocative
speeches were delivered and there were cultural performances
which resulted in disruption of communal harmony, violence,
and loss of life – Police conducted raids – The State Police,
allegedly, found incriminatory materials – According to
prosecution, the State Police had discovered a larger
conspiracy of which the appellant was a part – They found that
CPI (Maoist) to be behind such conspiracy – The latter being a
banned terrorist organisation, led to invoking offences under
the 1967 Act – Appellant was arrested – After that the initial
chargesheet and supplementary charge-sheet was submitted
by the State Police invoking allegations of commission of
offences under sections of the 1860 Code r/w. Sections of
the 1967 Act – Bail application of appellant was rejected by
trial Court – Appellant filed regular bail application before
the High Court – Meanwhile, investigation was transferred to
NIA – Single judge directed to file bail application before the
Division Bench of the High Court considering the provisions
of s.21(2) of the 2008 Act – The Division Bench disposed of
* Author
[2024] 4 S.C.R. 271
Shoma Kanti Sen v. The State of Maharashtra & Anr.
the appellant’s prayer for bail, giving liberty to the appellant
to approach the Trial Court for filing a fresh application for
bail – Permissibility:
Held: The course adopted by the High Court was a permissible
course – However, the appellant has been in detention for almost
six years, her age is over 66 years suffering from various ailments
and charges have not yet been framed – Having taken these
factors into account, it would not be in the interest of justice to
remand the matter to the Special Court constituted under the 2008
Act at this stage – Bail of the appellant required to be considered
on merits – NIA responded to the necessity of detention of the
appellant at this stage in negative – There is no allegation at this
stage that apart from being present, she had any further active
participation on that date in the programme – She was also not
named in the initial FIR – On examining the acts attributed to
the appellant by the various witnesses or as inferred from the
evidence relied on by the prosecution, there is no prima facie
commission or attempt to commit any terrorist act by the appellant
applying the test for invoking s.15 r/w. s.162 of the 1967 Act – On
the allegations of raising funds for a terrorist act, there are mere
third-party allegations that money has been directed to be sent
to her – None of the materials reveal receipt of any funds by her
or her direct role in raising or collecting funds – As regards the
allegation against the appellant for committing an offence u/s.
184 of the 1967 Act are concerned, the materials collected so far,
only reveal her participation in some meetings and her attempt to
encourage women to join the struggle for new democratic revolution
– These allegations, prima facie, do not reveal the commission of
an offence u/s. 18 of the 1967 Act – There are no specific materials
or statements produced by the prosecution which attribute acts of
recruitment in banned organization by the appellant – Evidence of
her involvement in any fund-raising activities for the CPI (Maoist)
or her support to the said organisation has not transpired through
any reliable evidence at this stage – Mere meeting of accused
individuals or being connected with them through any medium
cannot implicate one in Chapter VI offences under of the 1967 Act,
in the absence of any further evidence of being associated with
a terrorist organisation – On perusal of the evidences collected
against her as also the allegations made by prosecution witnesses,
there is no reasonable ground for believing that the accusations
against the appellants for commission of the offences incorporated
272 [2024] 4 S.C.R.
Digital Supreme Court Reports
in Chapter IV and VI of the 1967 Act are prima facie true – Thus,
the impugned judgment set aside and the appellant directed to
be released on bail with conditions. [Paras 14, 15, 23, 24, 30,
31, 32, 35, 36, 42]
Case Law Cited
Vernon v. The State of Maharashtra & Anr. [2023] 10
SCR 867 : (2023) INSC 655 – relied on.
State of Haryana v. Basti Ram [2013] 4 SCR 850 : (2013)
4 SCC 200; State of Andhra Pradesh, through Inspector
General, National Investigation Agency v. Mohd. Hussain
alias Salim [2013] 11 SCR 140 : (2014) 1 SCC 258;
National Investigation Agency v. Zahoor Ahmad Shah
Watali [2019] 5 SCR 1060 : (2019) 5 SCC 1; Gurwinder
Singh v. State of Punjab [2024] 2 SCR 134 : (2024)
INSC 92; K.A. Najeeb v. Union of India [2021] 1 SCR
443 : (2021) 3 SCC 713; Mazhar Khan v. N.I.A. New
Delhi; Shaheen Welfare Association v. Union of India
and Others [1996] 2 SCR 1123 : (1996) 2 SCC 616;
Angela Harish Sontakke v. State of Maharashtra (2021)
3 SCC 723 – referred to.
List of Acts
Penal Code, 1860; Unlawful Activities (Prevention) Act, 1967;
National Investigation Agency Act, 2008; Code of Criminal
Procedure, 1973.
List of Keywords
Provocative speeches; Disruption of communal harmony, violence,
and loss of life; Detention; Incarceration for a long period; Non-
framing of charges; Bail; Commission or attempt to commit
any terrorist act; Third-party allegations; Direct role in raising
or collecting funds; Punishment for terrorist activities; Terrorist
Organizations.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2595
of 2023
From the Judgment and Order dated 17.01.2023 of the High Court
of Judicature at Bombay in CRMBA No. 118 of 2020
[2024] 4 S.C.R. 273
Shoma Kanti Sen v. The State of Maharashtra & Anr.
Appearances for Parties
K M Nataraj, A.S.G., Anand Grover, Mihir Desai, Sr. Advs., Paras
Nath Singh, Rohin Bhatt, Ms. Nupur Kumar, Ms. Aparna Bhat,
Ms. Karishma Maria, Ms. Rishika Agarwal, Kanu Agarwal, Mrs.
Swati Ghirdiyal, Siddharth Dharmadhikari, Shailesh Madiyal, Anam
Venkatesh, Annirudh Sharma Ii, Siddhant Kohli, Ishaan Sharma,
Annirudh Bhatt, Amit Sharma B, Arvind Kumar Sharma, Omkar
Deshpande, Aaditya Aniruddha Pande, Bharat Bagla, Sourav Singh,
Aditya Krishna, Ms. Preet S. Phanse, Adarsh Dubey, Raj Kamal,
Aseem Atwal, Shaheen Pradhan, Siddhant Sharma, Maheen Pradhan,
Advs. for the appearing parties.
Judgment / Order of the Supreme Court
Judgment
Aniruddha Bose, J.
The appellant before us assails the order of a Division Bench of the
High Court of Judicature at Bombay passed on 17.01.2023, disposing
her application for bail with liberty to approach the Trial Court for
filing a fresh application for bail.
2. The appellant was detained on 06.06.2018 in connection with First
Investigation Report (“FIR”) no. 04/2018 dated 08.01.2018 registered
with Vishrambaug Police Station, Pune alleging commission of
offences under Sections 153A, 505 (1b), 117 read with Section 34 of
the Indian Penal Code, 1860 (“1860 Code”). The complaints therein
related to violence that broke out at a function organised by Elgar
Parishad. Certain acts of violence had taken place at Shanivarwada,
Pune on 31.12.2017 thereafter. The prosecution’s case is that in the
said programme, provocative speeches were delivered and there
were cultural performances which had the effect of creating enmity
between caste groups, resulting in disruption of communal harmony,
violence, and loss of life. The said FIR was initially lodged against
the organisers of the Elgar Parishad event, which included activists
of a cultural body, known as Kabir Kala Manch. The appellant before
us was not named in that FIR as an accused at that point of time.
3. Subsequently, the scope of investigation was expanded and Section
120-B of the 1860 Code was added to the list of offences on 06.03.2018.
The State Police, who were investigating the case at that point of
274 [2024] 4 S.C.R.
Digital Supreme Court Reports
time raided houses of eight accused persons on 17.04.2018, namely
(1) Rona Wilson of Delhi, (2) Surendra Gading of Nagpur, (3) Sudhir
Dhawale of Mumbai, (4) Harshali Potdar of Mumbai, (5) Sagar Gorkhe
of Pune, (6) Deepak Dhaeagale of Pune, (7) Jyoti Jagtap of Pune
and (8) Ramesh Gaychore of Pune. The State Police, allegedly, found
incriminatory materials from the residences of the raided persons. The
State Police seemed to have had discovered a larger conspiracy of
which the appellant was a part, according to the prosecution. They
found that Communist Party of India (Maoist) [“CPI (Maoist)”] to be
behind such conspiracy. The latter is a banned terrorist organisation,
and has been included in the First Schedule of the Unlawful Activities
(Prevention) Act, 1967 (“1967 Act”) by an order of the Union Home
Ministry dated 22.06.2009. This led to invoking offences under Sections
13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act. On 06.06.2018,
appellant’s residence was raided and certain literatures, electronic
devices and mobile phones were seized from her. On that date itself,
the appellant came to be arrested by the State Police.
4. On 02.11.2018, statement of one Kumarasai was recorded. He
had also recorded two other subsequent statements on 23.12.2018
(Annexure P-6 to the appeal-petition) and 24.08.2020. All these
statements form a part of the three chargesheets which have been
submitted in connection with the subject case and we shall refer to
the contents thereof later in this judgment. We would also point out
here that on behalf of prosecution, four sets of statements have been
produced before us as statements of protected witnesses. But status
of two of those witnesses as ‘protected’ was removed by the Special
Court constituted under the National Investigation Agency Act, 2008
(“2008 Act”) by an order passed on 27.04.2022. The investigation
was transferred to the National Investigation Agency (“NIA”) on
24.01.2020 and the same case was renumbered as RC-01/2020/
NIA/MUM, with NIA police station, Mumbai. The Special Court held
that prior directions to maintain secrecy in respect of identity of KW2
and KW4 ought to be set aside. The names of KW2 and KW4 thus
stood removed from the list of protected witnesses. This was done
mainly on the ground that copies of statements of those two witnesses
had been supplied to the defence under Section 207 of the Code
of Criminal Procedure, 1973 (“1973 Code”), which transmitted their
names and identities. KW4 is Kumarasai, whose statement we have
referred to earlier in this paragraph.
[2024] 4 S.C.R. 275
Shoma Kanti Sen v. The State of Maharashtra & Anr.
5. On 15.11.2018, the initial chargesheet was submitted by the State
Police invoking allegations of commission of offences under Sections
153A, 501(1)(b), 117, 120B, 121, 121A, 124A & 34 of the 1860 Code
read with Sections 13, 16, 17, 18, 18B, 20, 38, 39 & 40 of the 1967
Act. The appellant was implicated in the said chargesheet as accused
no. 4 for having committed offences under the aforesaid provisions. In
column 10 of this chargesheet, under the heading “Details of accused
charge-sheeted (with absconding accused)” names of Sudhir Prahlad
Dhavle, Rona Jacob Wilson, Surendra Pundlikrao Gadling, Shoma
Sen (the appellant) and Mahesh Sitaram Raut appear as arrested
accused whereas names of five other accused persons have been
shown as “at present underground”. A supplementary chargesheet
was also filed by the State Police on 21.02.2019, broadly under the
same provisions, implicating certain other individuals, Varavara Rao,
Vernon Gonzalves, Arun Ferreira and Sudha Bhardwaj as accused
persons in the same case.
6. After filing of the initial chargesheet, the appellant had preferred a bail
application before the Sessions Court at Pune on 13.12.2018. The
Additional Sessions Judge, upon going through the two chargesheets
dated 15.11.2018 and 21.11.2019, rejected her bail plea by an order
dated 06.11.2019. The Sessions Court applied the bail restricting
provision contained in Section 43-D (5) of the 1967 Act to deny bail
to the appellant. Thereafter, on 09.01.2020, the appellant had filed
a regular bail application before the High Court of Judicature at
Bombay, invoking the provisions of Section 439 of the 1973 Code.
7. As the investigation had been transferred to the NIA during
subsistence of the bail application before the High Court, the learned
Single Judge, before whom the appellant’s petition was pending,
directed that the bail application ought to be placed before a Division
Bench and the NIA was also impleaded as respondent to the said
petition. Under normal circumstances, the bail petition would have
been heard by a learned Single Judge only. This direction, however,
was made considering the provisions of Section 21(2) of the 2008
Act. The order dated 17.07.2021 passed by the learned Single Judge
of the High Court, placing the bail application before the Division
Bench, reads: -
"1. Learned counsel for the applicant states that, the
case is now being investigated by N.I.A. under the
276 [2024] 4 S.C.R.
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N.I.A. Act. He seeks leave to add N.I.A. as a party
respondent. Learned counsel for the applicant seeks
two weeks time to carry out amendment. Time is
granted.
2. Since the N.I.A. has taken over the investigation,
the matter will have to be placed before the
Division bench. I have taken this view in Criminal
Bail Application No.2024 of 2021 vide order dated
11/06/2021 based on the Hon’ble Supreme Court’s
Judgment in the case of State of Andhra Pradesh,
through Inspector General, National Investigation
Agency, Vs. Mohd. Hussain @ Salim, as reported
in (2014) 1 Supreme Court Cases 258.
3. Hence, the following order is passed:
ORDER
(i) Leave to amend is granted to add N.I.A. as a
party respondent.
(ii) Amendment shall be carried out within a period
of two weeks from today.
(iii) Office to take steps to place this matter before
the appropriate Division Bench.
(iv) The applicant shall supply second set of this
application.”
8. The Division Bench heard the bail application and by an order passed
on 17.01.2023, which is assailed before us, disposed of the appellant’s
prayer for bail, giving liberty to the appellant to approach the Trial
Court for filing a fresh application for bail. Prior to the passing of the
order which is impugned before us, the NIA had submitted a second
supplementary chargesheet dated 09.10.2020, implicating seven
more persons as accused in the case. They are Anand Teltumbde,
Gautam Navlakha, Hany Babu, Sagar Gorkhe, Ramesh Gaychore,
Jyoti Jagtap and Stan Swamy. It is the case of the prosecution that
the second supplementary chargesheet filed by the NIA contains
certain incriminating materials against the appellant as well. It is
primarily on account of the second supplementary chargesheet
being filed, the Division Bench of the High Court refused to consider
[2024] 4 S.C.R. 277
Shoma Kanti Sen v. The State of Maharashtra & Anr.
the appellant’s petition for bail on merit. The reasoning for such a
course being directed by the Division Bench would appear from the
following passage of the impugned order: -
"2. As noted in Order dated 2nd December, 2022, the
investigation of present Crime was subsequently
transferred to the National Investigation Agency (for
short “the NIA”) in the month of January, 2020 i.e. after
passing of the impugned Order. After completion of
further investigation, the NIA has filed supplementary
charge-sheet in the Special Court (under NIA Act) at
Mumbai. The said case arising out of present crime
is now pending for final adjudication in the Special
Court (under NIA Act) at Mumbai.
3. It is to be noted here that, after the NIA filed
supplementary charge-sheet, in view of the
substantive change in circumstance, the Applicant
did not approach the trial Court, at the first instance
for appreciation of evidence by it. This Court therefore
does not have the benefit of assessment of entire
evidence on record by the trial Court. It is therefore
necessary for the Petitioner to approach the trial Court
afresh for seeking bail under Section 439 of Criminal
Procedure Code, so that the trial Court will get an
opportunity to assess entire material available on
record against the Applicant. Even otherwise, in view
of substantive change in circumstance it is necessary
for the Applicant to approach the trial Court by filing
a fresh Application for bail.”
9. Appearing on behalf of NIA, learned Additional Solicitor General, Mr.
Nataraj, took preliminary objection on maintainability of the present
appeal. His counter-affidavit is also founded on that factor. He stressed
on the fact that since the first Court of bail had no opportunity to
examine the fresh set of accusations emanating from the second
supplementary chargesheet, no error was committed by the Division
Bench in remanding the matter to the Court of first instance.
10. His argument is that the High Court is an appellate forum on the
question of bail, where the 2008 Act is applicable and thus ought
not to examine, for the first time, a fresh set of accusations made
278 [2024] 4 S.C.R.
Digital Supreme Court Reports
by the investigating agency. He relied on a judgment of this Court in
the case of State of Haryana -vs- Basti Ram [(2013) 4 SCC 200].
A Coordinate Bench of this Court observed in this case:-
“27. Normally, we would have gone through the entire
evidence on record and decided whether the acquittal of
Basti Ram should be sustained or not. However, in the
absence of any discussion or analysis of the evidence by
the High Court in the first appeal, we are of the opinion that
a right of appeal available to Basti Ram would be taken
away if we were to consider the case on its merits without
the opinion of the High Court. Additionally, for a proper
appreciation of the case, it is necessary for us to have
the views of the High Court on record. This is important
since the High Court has reversed a finding of conviction
given by the trial Judge.”
11. This was a case where the respondent-accused was implicated in
offences of sexual assault and kidnapping of a minor girl along with
other related offences and the accused was convicted by the Trial
Court. Conviction of the respondent along with the co-accused was
set aside by a Single Judge of the High Court. It was contended
by the State before this Court that the judgment of acquittal was
passed by the High Court ignoring the statement of prosecutrix,
made under Section 164 of the 1973 Code, as also her testimony
before the trial court. It was in the context of this argument that the
aforesaid judgment was delivered and observations were made in
the passage quoted above. The same course, in our opinion, would
not be mandatory on the question of considering pre-trial bail plea.
12. So far as the initial and the first supplementary chargesheets filed by
the State Police are concerned, the Court of first instance had the
occasion to go through the same. But the High Court opined that after
transfer of investigation to NIA and filing of the second supplementary
chargesheet, which was also placed before the High Court, it should
be the Special Court itself which should examine, at the first instance,
the content of all the chargesheets, before considering the prayer of
an accused for bail. In the present case, when the bail application
was filed before the Single Judge of the High Court under Section
439 of the 1973 Code, the second supplementary chargesheet
had not been submitted. Under the provisions of the 1973 Code,
[2024] 4 S.C.R. 279
Shoma Kanti Sen v. The State of Maharashtra & Anr.
the jurisdiction of the High Court to consider the question of bail is
coordinate with that of the Sessions Court and it has evolved as a
matter of practice that an accused seeking bail ought to approach
the Sessions Court before approaching the High Court. Thus, at the
point of time when the bail petition was filed by the appellant before
the High Court, there was no apparent jurisdictional shortcoming in
the High Court examining the appellant’s plea for bail. It was also, in
our opinion, the proper course which was adopted by the High Court
exercising jurisdiction under Section 439 of the 1973 Code to refer
the matter to a Division Bench to decide the bail plea in accordance
with Section 21(2) of the 2008 Act. This course has been prescribed in
the judgement of this court in the case of State of Andhra Pradesh,
through Inspector General, National Investigation Agency -vs-
Mohd. Hussain alias Salim [(2014) 1 SCC 258], which was relied
upon by the learned Single Judge while placing the bail application
before a Division Bench. The relevant portion of this judgement
passed by a Coordinate Bench of this Court stipulates: -
“27. The order passed by this Court on 2-8-2013 in State
of A.P. v. Mohd. Hussain [State of A.P. v. Mohd. Hussain,
(2014) 1 SCC 706] is therefore clarified as follows:
27.1. Firstly, an appeal from an order of the Special Court
under the NIA Act, refusing or granting bail shall lie only
to a Bench of two Judges of the High Court.
27.2. And, secondly as far as Prayer (b) of the petition for
clarification is concerned, it is made clear that inasmuch
as the applicant is being prosecuted for the offences under
the MCOC Act, 1999, as well as the Unlawful Activities
(Prevention) Act, 1967, such offences are triable only by
the Special Court, and therefore application for bail in such
matters will have to be made before the Special Court
under the NIA Act, 2008, and shall not lie before the High
Court either under Section 439 or under Section 482 of the
Code. The application for bail filed by the applicant in the
present case is not maintainable before the High Court.
27.3. Thus, where the NIA Act applies, the original
application for bail shall lie only before the Special Court,
and appeal against the orders therein shall lie only to a
Bench of two Judges of the High Court.”
280 [2024] 4 S.C.R.
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13. The factual position which forms the background of the present
appellant’s plea for bail is, however, different from that in which
the aforesaid judgments were delivered. The appellant before us,
at each stage, had applied for bail before the Court which, at that
point of time, had regular jurisdiction to consider her application. It
was because of supervening circumstances the NIA entered into
the picture and then issued the second supplementary chargesheet.
The Division Bench, being an appellate forum, has the jurisdiction to
look into the facts which may arise subsequent to the order of bail
passed by the Court of regular jurisdiction. The order by which the
Single Judge, hearing the bail application under Section 439 of the
1973 Code, placed the matter before the Division Bench (in essence,
giving the said application the form or character of an appeal under
Section 21(2) of the 2008 Act), had not been assailed by any of the
parties. We also do not find any error in such a direction having
been issued by the Single Judge of the High Court exercising
jurisdiction under Section 439 of the 1973 Code. It was the same
investigation which was continued by the NIA, based on the same
FIR. Only the investigating agency had changed. Just because the
second supplementary chargesheet had been issued by the NIA
after disposal of the bail application by the Sessions Court, it was
not the only legal course available to the High Court to remand the
matter to the Special Court for examining the second supplementary
chargesheet at the first instance. As an Appellate Forum, in the
facts of the given case, it was well within the jurisdiction of the High
Court exercising its power under Section 21(2) of the 2008 Act, to
examine the second supplementary chargesheet as well, while sitting
in appeal over the order of rejection of bail by the regular Sessions
Court upon considering the first two chargesheets.
14. Now, the question arises as to whether the course adopted by the
High Court ought to be invalidated by us simply because another
course, which is suggested by the appellant, could also be adopted
by the High Court. In our view, under ordinary circumstances, we
might not have had interfered with the High Court’s judgment and
order which is under appeal before us. The course adopted by the
High Court was a permissible course. We, however, must take into
account that the High Court had passed the aforesaid order when
the appellant, a lady, was in detention for over four and a half years.
At present, the appellant has been in detention for almost six years,
[2024] 4 S.C.R. 281
Shoma Kanti Sen v. The State of Maharashtra & Anr.
her age is over 66 years and charges have not yet been framed.
The appellant has also moved an application before us, registered
as CRL MP No. 166531 of 2023, in which various ailments from
which she suffers have been cited and prayer is made for bail on
medical grounds as well.
15. Having taken these factors into account, we do not think it would be
in the interest of justice to remand the matter to the Special Court
constituted under the 2008 Act at this stage. We are taking this
view as in our opinion, it would not have been beyond jurisdiction
of the High Court Division Bench, even in exercise of appellate
power under Section 21(2) of the 2008 Act, to examine the second
supplementary chargesheet as well. For these reasons, we decline
to accept the preliminary objection raised by Mr. Nataraj and shall
proceed to consider here, the appellant’s plea for bail on merit. Now
that we have given leave to the appellant in her petition for special
leave to appeal, the same appellate jurisdiction which vested in the
High Court will vest in us as well and in exercise of such appellate
jurisdiction, we shall consider the appellant’s prayer for bail, which
was not considered by the High Court on merit.
16. It was also urged by Mr. Nataraj that in the appeal-petition, the
appellant has only asked for setting aside the impugned judgment and
order. No specific prayer for bail has been made. But in our opinion,
the plea for bail in the context of the present appeal is implicit. The
petition which was transferred to the Division Bench carried prayer
of the appellant for being released on bail and argument advanced
by Mr. Grover, learned senior counsel appearing for the appellant is
that the High Court itself ought to have granted bail to the appellant
on the basis of available materials. Moreover, the appellant in the
appeal-petition has also asked for bail as interim relief. Since the
appeal, in substance, is against the judgment by which prayer for
bail was refused, merely based on the manner of framing of reliefs
or prayers in the subject-petition, the actual relief sought by the
appellant would not stand eclipsed.
17. Mr. Nataraj had also contended that the NIA must be permitted to
contest the bail plea of the appellant before the first Court of bail
on the basis of materials disclosed in the second supplementary
charge-sheet, because the prosecution would also be entitled
to a right of appeal. His submission is that such right of appeal
282 [2024] 4 S.C.R.
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would stand lost if the High Court itself had examined the second
supplementary charge-sheet and decided the question of bail in
favour of the appellant-accused. These are cogent arguments, but
we must not lose sight of the fact that we are concerned here with
the question of liberty of a pre-trial detenue, who is a senior citizen,
in custody for almost six years, against whom charges are yet to be
framed. The question of losing right of an appellate forum would have
greater significance in substantive proceedings but on the question
of bail, in a proceeding where the detenue herself has volunteered
to forego an appellate forum by arguing before us her case for bail,
the approach of this Court would be to address the question on
merit, rather than to send it back to the Court of first instance for
examining the materials available against the appellant.
18. This argument of the prosecution would have had stronger impact if
the last charge-sheet, which the first bail Court could not examine,
had disclosed any new or egregious set of accusations against the
appellant, far removed from those contained in the earlier charge-
sheets. We have gone through the second supplementary chargesheet
but do not find disclosure of any such material. This question shall
be examined by us in the subsequent paragraphs of this judgment.
19. Another point urged by Mr. Nataraj was that the entirety of incriminating
material in the chargesheets, which forms the basis for implicating the
appellant did not form part of petition for special leave to appeal and to
that extent the investigating agency did not have full opportunity to meet
the appellant’s case. But as would be evident from various paragraphs
of this judgment, these materials were brought on record and both
parties had the opportunity to consider these materials and advance
submissions on that basis. This is not a case where equitable relief is
snatched ex-parte, for instance in case of an ad-interim injunction, by
not bringing to the notice of the Court the entire factual basis of a given
case. In this appeal, both the parties have had sufficient opportunity to
deal with the relevant materials and the appellant cannot be non-suited
on the sole ground of non-disclosure of such materials.
20. We shall now test the appellant’s claim for bail on merit. Having regard
to the proviso to Section 43D (5)1 of 1967 Act, the Court hearing the
1 43-D. Modified application of certain provisions of the Code.
1) Notwithstanding anything contained in the Code or any other law, every offence punishable under
[2024] 4 S.C.R. 283
Shoma Kanti Sen v. The State of Maharashtra & Anr.
question of bail is under duty to scan through the case diary or report
made under Section 173 of the Code for the purpose of forming an
opinion to the effect that there are reasonable grounds for believing
that the accusation against the appellant is prima facie true. This test
would apply in only relation to offences stipulated under Chapters IV
and VI of the 1967 Act. So far as the prosecution’s accusation against
the appellant is concerned, allegations of commission of offences
under Sections 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act
come within the purview of the bail restricting clause as specified in
the aforesaid provision. The manner in which the Court shall come
to such a finding at the stage of considering petition for bail has
this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of
the Code, and “cognizable case” as defined in that clause shall be construed accordingly.
2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this
Act subject to the modification that in sub-section (2),--
(a) the references to “fifteen days”, “ninety days” and “sixty days”, wherever they occur, shall be
construed as references to “thirty days”, “ninety days” and “ninety days” respectively; and
(b) after the proviso, the following provisos shall be inserted, namely:--
“Provided further that if it is not possible to complete the investigation within the said period of
ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating
the progress of the investigation and the specific reasons for the detention of the accused
beyond the said period of ninety days, extend the said period up to one hundred and eighty
days:
Provided also that if the police officer making the investigation under this Act, requests, for
the purposes of investigation, for police custody from judicial custody of any person in judicial
custody, he shall file an affidavit stating the reasons for doing so and shall also explain the
delay, if any, for requesting such police custody.
(3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this
Act subject to the modification that--
(a) the reference in sub-section (1) thereof
(i) to “the State Government” shall be construed as a reference to “the Central Government
or the State Government.”;
(ii) to “order of the State Government” shall be construed as a reference to “order of the
Central Government or the State Government, as the case may be”; and
(b) the reference in sub-section (2) thereof, to ‘the State Government” shall be construed as a
reference to “the Central Government or the State Government, as the case may be”.
(4) 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.
(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable
under Chapters IV and VI of 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 such person is prima
facie true.
(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under
the Code or any other law for the time being in force on granting of bail.
(7) Notwithstanding anything contained in sub-sections (5) and (6), 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.”
284 [2024] 4 S.C.R.
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been dealt with and explained in two judgments of two Coordinate
Benches of this Court in the cases of National Investigation Agency
-vs-Zahoor Ahmad Shah Watali [(2019) 5 SCC 1] and Vernon
-vs- The State of Maharashtra & Anr. [2023 INSC 655]. (One of
us, Aniruddha Bose J., was a party to the latter judgement).
21. In the case of Zahoor Ahmad Shah Watali (supra), it has been,
inter-alia, held:-
“23. By virtue of the proviso to sub-section (5), it is the
duty of the Court to be satisfied that there are reasonable
grounds for believing that the accusation against the
accused is prima facie true or otherwise. Our attention
was invited to the decisions of this Court, which has had
an occasion to deal with similar special provisions in TADA
and Mcoca. The principle underlying those decisions may
have some bearing while considering the prayer for bail in
relation to the offences under the 1967 Act as well. Notably,
under the special enactments such as TADA, Mcoca and
the Narcotic Drugs and Psychotropic Substances Act,
1985, the Court is required to record its opinion that there
are reasonable grounds for believing that the accused
is “not guilty” of the alleged offence. There is a degree
of difference between the satisfaction to be recorded by
the Court that there are reasonable grounds for believing
that the accused is “not guilty” of such offence and the
satisfaction to be recorded for the purposes of the 1967
Act that there are reasonable grounds for believing that the
accusation against such person is “prima facie” true. By its
very nature, the expression “prima facie true” would mean
that the materials/evidence collated by the investigating
agency in reference to the accusation against the accused
concerned in the first information report, must prevail
until contradicted and overcome or disproved by other
evidence, and on the face of it, shows the complicity of
such accused in the commission of the stated offence. It
must be good and sufficient on its face to establish a given
fact or the chain of facts constituting the stated offence,
unless rebutted or contradicted. In one sense, the degree
of satisfaction is lighter when the Court has to opine that
the accusation is “prima facie true”, as compared to the
[2024] 4 S.C.R. 285
Shoma Kanti Sen v. The State of Maharashtra & Anr.
opinion of the accused “not guilty” of such offence as
required under the other special enactments. In any case,
the degree of satisfaction to be recorded by the Court for
opining that there are reasonable grounds for believing that
the accusation against the accused is prima facie true, is
lighter than the degree of satisfaction to be recorded for
considering a discharge application or framing of charges
in relation to offences under the 1967 Act. Nevertheless,
we may take guidance from the exposition in Ranjitsing
Brahmajeetsing Sharma v. State of Maharashtra, [(2005) 5
SCC 294 : 2005 SCC (Cri) 1057], wherein a three-Judge
Bench of this Court was called upon to consider the scope
of power of the Court to grant bail. In paras 36 to 38, the
Court observed thus : (SCC pp. 316-17)
“36. Does this statute require that before a
person is released on bail, the court, albeit prima
facie, must come to the conclusion that he is not
guilty of such offence? Is it necessary for the
court to record such a finding? Would there be
any machinery available to the court to ascertain
that once the accused is enlarged on bail, he
would not commit any offence whatsoever?
37. Such findings are required to be recorded
only for the purpose of arriving at an objective
finding on the basis of materials on record only
for grant of bail and for no other purpose.
38. We are furthermore of the opinion that the
restrictions on the power of the court to grant
bail should not be pushed too far. If the court,
having regard to the materials brought on record,
is satisfied that in all probability he may not
be ultimately convicted, an order granting bail
may be passed. The satisfaction of the court
as regards his likelihood of not committing an
offence while on bail must be construed to mean
an offence under the Act and not any offence
whatsoever be it a minor or major offence. …
What would further be necessary on the part of
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the court is to see the culpability of the accused
and his involvement in the commission of an
organised crime either directly or indirectly. The
court at the time of considering the application
for grant of bail shall consider the question from
the angle as to whether he was possessed of
the requisite mens rea.”
And again in paras 44 to 48, the Court observed : (SCC
pp. 318-20)
“44. The wording of Section 21(4), in our opinion,
does not lead to the conclusion that the court
must arrive at a positive finding that the applicant
for bail has not committed an offence under the
Act. If such a construction is placed, the court
intending to grant bail must arrive at a finding
that the applicant has not committed such an
offence. In such an event, it will be impossible
for the prosecution to obtain a judgment of
conviction of the applicant. Such cannot be
the intention of the legislature. Section 21(4) of
Mcoca, therefore, must be construed reasonably.
It must be so construed that the court is able to
maintain a delicate balance between a judgment
of acquittal and conviction and an order granting
bail much before commencement of trial.
Similarly, the court will be required to record
a finding as to the possibility of his committing
a crime after grant of bail. However, such an
offence in futuro must be an offence under the
Act and not any other offence. Since it is difficult
to predict the future conduct of an accused, the
court must necessarily consider this aspect of
the matter having regard to the antecedents of
the accused, his propensities and the nature
and manner in which he is alleged to have
committed the offence.
45. It is, furthermore, trite that for the purpose
of considering an application for grant of bail,
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Shoma Kanti Sen v. The State of Maharashtra & Anr.
although detailed reasons are not necessary
to be assigned, the order granting bail must
demonstrate application of mind at least in
serious cases as to why the applicant has been
granted or denied the privilege of bail.
46. The duty of the court at this stage is not to
weigh the evidence meticulously but to arrive
at a finding on the basis of broad probabilities.
However, while dealing with a special statute like
Mcoca having regard to the provisions contained
in sub-section (4) of Section 21 of the Act, the
court may have to probe into the matter deeper
so as to enable it to arrive at a finding that the
materials collected against the accused during
the investigation may not justify a judgment of
conviction. The findings recorded by the court
while granting or refusing bail undoubtedly would
be tentative in nature, which may not have any
bearing on the merit of the case and the trial
court would, thus, be free to decide the case
on the basis of evidence adduced at the trial,
without in any manner being prejudiced thereby.
47. In Kalyan Chandra Sarkar v. Rajesh Ranjan
[(2004) 7 SCC 528 : 2004 SCC (Cri) 1977] this
Court observed : (SCC pp. 537-38, para 18)
‘18. We agree that a conclusive finding in
regard to the points urged by both the sides
is not expected of the court considering a
bail application. Still one should not forget, as
observed by this Court in Puran v. Rambilas
[(2001) 6 SCC 338: 2001 SCC (Cri) 1124] :
(SCC p. 344, para 8)
“8. …Giving reasons is different
from discussing merits or demerits.
At the stage of granting bail a
detailed examination of evidence
and elaborate documentation of the
merits of the case has not to be
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undertaken. … That did not mean
that whilst granting bail some reasons
for prima facie concluding why bail
was being granted did not have to
be indicated.”
We respectfully agree with the above dictum of
this Court. We also feel that such expression
of prima facie reasons for granting bail is a
requirement of law in cases where such orders
on bail application are appealable, more so
because of the fact that the appellate court has
every right to know the basis for granting the
bail. Therefore, we are not in agreement with
the argument addressed by the learned counsel
for the accused that the High Court was not
expected even to indicate a prima facie finding
on all points urged before it while granting bail,
more so in the background of the facts of this
case where on facts it is established that a
large number of witnesses who were examined
after the respondent was enlarged on bail had
turned hostile and there are complaints made
to the court as to the threats administered by
the respondent or his supporters to witnesses in
the case. In such circumstances, the court was
duty-bound to apply its mind to the allegations
put forth by the investigating agency and ought
to have given at least a prima facie finding in
regard to these allegations because they go to
the very root of the right of the accused to seek
bail. The non-consideration of these vital facts
as to the allegations of threat or inducement
made to the witnesses by the respondent
during the period he was on bail has vitiated
the conclusions arrived at by the High Court
while granting bail to the respondent. The other
ground apart from the ground of incarceration
which appealed to the High Court to grant bail
was the fact that a large number of witnesses are
[2024] 4 S.C.R. 289
Shoma Kanti Sen v. The State of Maharashtra & Anr.
yet to be examined and there is no likelihood of
the trial coming to an end in the near future. As
stated hereinabove, this ground on the facts of
this case is also not sufficient either individually
or coupled with the period of incarceration to
release the respondent on bail because of
the serious allegations of tampering with the
witnesses made against the respondent.’
48. In Jayendra Saraswathi Swamigal v. State
of T.N. (2005) 2 SCC 13 : 2005 SCC (Cri) 481]
this Court observed [(SCC pp. 21-22, para 16)]
‘16. … The considerations which
normally weigh with the court in
granting bail in non-bailable offences
have been explained by this Court in
State v. Jagjit Singh [(1962) 3 SCR
622 : AIR 1962 SC 253 : (1962) 1 Cri
LJ 215] and Gurcharan Singh v. State
(UT of Delhi) [(1978) 1 SCC 118 :
1978 SCC (Cri) 41] and basically they
are — the nature and seriousness
of the offence; the character of the
evidence; circumstances which are
peculiar to the accused; a reasonable
possibility of the presence of the
accused not being secured at the
trial; reasonable apprehension of
witnesses being tampered with; the
larger interest of the public or the
State and other similar factors which
may be relevant in the facts and
circumstances of the case.’”
22. In the case of Vernon (supra), it was observed:-
“36. In the case of Zahoor Ahmad Shah Watali (supra),
it has been held that the expression “prima facie true”
would mean that the materials/evidence collated by
the investigating agency in reference to the accusation
against the accused concerned in the chargesheet must
290 [2024] 4 S.C.R.
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prevail, unless overcome or disproved by other evidence,
and on the face of it, materials must show complicity of
such accused in the commission of the stated offences.
What this ratio contemplates is that on the face of it, the
accusation against the accused ought to prevail. In our
opinion, however, it would not satisfy the prima facie “test”
unless there is at least surface-analysis of probative value
of the evidence, at the stage of examining the question of
granting bail and the quality or probative value satisfies
the Court of its worth………”
23. We must point out here that Mr. Nataraj has taken a fair stand in
this case and in response to our query on necessity of detention of
the appellant at this stage, for further investigation, he has submitted
that the prosecution at present would not require custody of the
appellant for such purpose. He has simultaneously emphasised on
gravity and seriousness of the offences alleged against the appellant
and submitted that the question of entitlement of the appellant to
be enlarged on bail would have to be examined in the light of the
bail restricting clause of Section 43D (5) of the 1967 Act and on
that basis, he has contested the appeal. We shall first examine
the applicability of the offences contained in Chapters IV and VI in
relation to the materials which have been disclosed before us and
then go on to apply the normal principle of granting bail, only on our
satisfaction that the materials disclosed before us do not establish
reasonable grounds for believing that the accusations against the
appellant under the bail restricting provisions of the 1967 Act are prima
facie true. The substance of allegations against the appellant are,
inter-alia, contained in paragraphs 17.4, 17.5, 17.8, 17.10.1, 17.11,
17.12, 17.15, 17.16 and 17.18 of the chargesheet dated 15.11.2018
and paragraphs 17.4, 17.5 and 17.16 of the first supplementary
chargesheet dated 21.02.2019. The allegations against the appellant
are, inter-alia, contained in paragraphs 17.24, 17.25, 17.29, 17.32,
17.39, 17.45, 17.55, 17.56, 17.73, 17.74, 17.75 and 17.78 of the
second supplementary chargesheet dated 09.10.2020.
24. It is admitted position that appellant was present at Shanivarwada
within the district of Pune on 31.12.2017 when the Elgar Parishad
event took place. But there is no allegation at this stage that apart
from being present, she had any further active participation on that
date in the programme. For instance, there is no allegation that she
[2024] 4 S.C.R. 291
Shoma Kanti Sen v. The State of Maharashtra & Anr.
had delivered any provocative speech. She was also not named in
the initial FIR which was registered at Vishrambaug Police Station,
Pune on 08.01.2018. The prosecution’s case is that the appellant is
an active member of CPI (Maoist) and conspired with other accused
persons to violently overthrow democracy and the State. There are
also allegations that she provided party funds and also received party
funds from another accused Mahesh Raut, she was paid a sum of
Rs. five lakhs by two other co-accused persons and made constant
attempts to further terrorist activities of the banned CPI (Maoist).
It is also the prosecution’s case that she has been encouraging
youngsters and recruited them as members in the banned organization
and participated in a broad conspiracy to organize Elgar Parishad
programme. It is further alleged that the appellant is associated with
the Indian Association of Peoples Lawyer (“IAPL”), Committee for
the Protection of Democratic Rights (“CPDR”) Anuradha Ghandy
Memorial Committee (“AGMC”) and Kabir Kala Manch (“KKM”) which
have been described as frontal organization of the CPI (Maoist) on
the ground that they are instrumental in organizing meetings and
exchange of messages for implementation of aims and policies of
the said banned organization. Her involvement in the controversy
hatched by two other accused and underground members has also
been highlighted. As we have already indicated, there was a search
in her residential premises on 06.06.2018. It is the prosecution’s
case that materials recovered from her, as also other accused
persons, revealed her participation in the meetings and conferences
of Revolutionary Democratic Front (“RDF”), which again has been
alleged to be a frontal organization to spread the propaganda of
the banned CPI (Maoist). The presence of the appellant in the
National Conference of RDF conducted in Hyderabad is sought to
be demonstrated through the first supplementary chargesheet.
25. In the second supplementary chargesheet, allegations against her
are contained in the paragraphs which we have already referred to.
Here also, the video of the RDF Conference held on 22-23.04.2012
has been highlighted. It is also indicated that she took active part in
the Elgar Parishad function. In this chargesheet, her conduct and
coordination with other accused persons has been sought to be
demonstrated, which include Anand Teltumbadde, Gautam Navlakha,
Hany Babu, Jyoti Jagtap and Stan Swamy (since deceased). It is also
pointed out that she was in close connection with the other members
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of CPI (Maoist) through e-mail and mobile phones. But we do not
find these allegations to reveal involvement of the appellant in any
outrageously offensive act or activities having characters altogether
different from those contained in the two earlier chargesheets. In
this chargesheet, only her interaction and connection with other
accused persons has been revealed and forms part of the same
chain of accusations.
26. In its counter-affidavit, the NIA, being the contesting respondent before
us, has primarily taken the stand confined to its preliminary objections
on maintainability of this appeal, which we have already noted. But
in course of hearing before us, we were addressed on merit of the
appeal on the question of entitlement of the appellant to be released
on bail, having regard to the proviso of Section 43D(5) of 1967
Act. The materials which form part of the three chargesheets, were
brought on record before us by the appellant through two additional
affidavits. Apart from these of these of the appellant, detailed written
submission has been filed by Mr. Nataraj, which contains a series of
documents found to be incriminating by the prosecution along with
witness statements implicating the appellant.
27. So far as the appellant is concerned, the prosecution has emphasised
on the following list of materials forming part of this appeal:-
(i) A Letter dated 08.06.2017 from one “Comrade M” addressed
to “Comrade Surendra”, which carries reference to the
appellant to the limited extent that the party leadership has
sent instructions to “Comrade Shomasen” for strengthening
CPDR and Radical Student’s Union in Nagpur, Chandrapur
and Gondia region. This letter also records that necessary
funds have been sent, but no specific person is named as
the recipient of such funds.
(ii) Letter dated 23.12.2017 from one “R” addressed to “Comrade
Prakash” which relates to constituting a fact-finding team to
gauge the truth about fake encounters in Gadchiroli and it has
been indicated that letter that “Shoma” will speak to the friends,
presumably of the author and addressee of the letter, in Nagpur
who might join the team.
(iii) Next is a letter dated 02.01.2018 from one “Com. M” to
“Comrade Rona” and the offending part of this letter, so far as
the appellant is concerned, is to the effect that “Com. Shoma”
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Shoma Kanti Sen v. The State of Maharashtra & Anr.
and “Com. Surendra” were authorised to provide funds for the
future.
(iv) Next document bears the character of a minutes of a meeting
dated 02.01.2008, which marks the presence of “Shomasen”
as a “leading CPDR member”, along with certain other accused
individuals.
(v) Thereafter, an undated account statement is relied on by the
prosecution, which mentions “Shoma” as recipient of “1L”
(presumably Rs. one lakh) from “Surendra” who is the accused
no. 3 in the present case.
(vi) The prosecution has relied on another letter dated 25.09.2017,
written by “Com. Prakash” addressed to “Comrade Surendra”
where the author asks the addressee to coordinate with
“shomasen” and ensure that all pgp files are securely wiped
out from all the computers.
(vii) Then there is another letter dated 05.11.2017 purported to
have been written by “Comrade Surendra” and addressed to
“Comrade Prakash” wherein the author informs the addressee
that the information from the party has been communicated to
“Soma” and she has destroyed all the data on her computer
in addition to all the APT files sent by the party, old and new
letters and the party’s resolutions etc.
(viii) The last set of documents includes the panchnama of the
search conducted at the house of the appellant, along with
the Forensic Science Laboratory (‘FSL”) Report containing
the analysis of the materials seized from the appellant. These
documents have been cited by Mr. Nataraj to corroborate
the allegations of destruction of evidence at the instance of
the co-accused persons. The FSL report reveals that deleted
audio and video files were retrieved from hard disk and also
mentions that uninstalled softwares have been recovered, but no
substantive content of the deleted materials has been placed in
the chargesheets. The material placed before us only indicates
that the process of deletion had taken place.
It appears that all the letters and other materials mentioned in the
above list have been purported to have been recovered from the
electronic devices of co-accused Rona Wilson.
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28. The next set of evidences to which our attention has been drawn by
Mr. Nataraj are four witness statements, two of whom were originally
given the status of protected witnesses. We have referred to their
present status earlier in this judgment. The accusations made by
the four witnesses in their respective statements placed before us
are as follows:-
(i) The first protected witness (KW1) statement carries reference
to Shoma Sen as having addressed the delegates of the
conference of RDF held in April 2012. The relevant part of the
said recorded statement reads:-
“………Shoma Sen said that we have to
understand the essence of the Maoist slogan
‘women hold up half the sky’. To solve the
problems women in our country, as well as in
other countries, the struggle for New Democratic
Revolution is the only way forward. Simply she
was advocating women to join CPI Maoist to
solve their issues……....”
(ii) The statement of KW-2 recorded by the NIA under Section 161
of the 1973 Code on 10.08.2020 reveals alleged presence of
the appellant in the office of a co-accused person i.e. Surendra
Gadling, when KW-2 purported to have joined the CPI (Maoist)
at the instance of Surendra.
(iii) A redacted statement of KW-3, who is a protected witness,
has been produced by the NIA in its written submissions. This
witness, on being asked about senior Naxal members of CPI
(Maoist), stated that he first met the appellant in 2007-08, during
the classes of communist ideology, revolutionary movement,
party working etc. in Nagpur, which were attended by some
other individuals. The same witness goes on implicate the
appellant in certain message channels working to exchange
messages regarding urban work of CPI (Maoist). In this regard,
he has stated that:-
“……..During year 2017, there were 3-4
message channels were working to exchange
message between Deepak and Angela regarding
urban work of CPI (Maoist) viz (i) Deepak -Nandu
[2024] 4 S.C.R. 295
Shoma Kanti Sen v. The State of Maharashtra & Anr.
(Myself)- Kalyan Hirekhan-Gadling-Angela; for
legal work (ii) Deepak-Nandu (Myself)-Kalyan
Hirekhan- Angela Sontakke at Shoma Sen’s
house for meeting with Deepak in Nagpur (iii)
Deepak-Nandu (Myself)- Arif Shaikh (WCL
worker and Journalist)-Vipalav Teltumbde
(Nephew of Deepak Teltumbde)-Angela; this
was the second option for meeting of Deepak &
Angela (iv) Deepak-Nandu (Myself)-Arif Shaikh-
NT Maske- Angela Sontakke; alternative meeting
channel……...”
This statement, however, does not prima facie show any direct
involvement of the appellant in the offending acts with which
she has been charged vis-à-vis the bail restricting provisions
of the 1967 Act.
(iv) From the three statements of Kumarasai who was originally
identified as “KW-4”, there are only two purported incriminating
references to the appellant, in the second and the third ones,
recorded on 23.12.2018 and 24.08.2020 respectively. In the
former statement, which was recorded by the State Police, he
stated that appellant was working along with an intellectual
group for solving problems of women and students. In the latter
statement, recorded by the NIA, he stated that the appellant
was an urban Naxalite working with CPI (Maoist). The name
of the appellant, however, does not figure in his first statement
recorded by the State Police on 02.11.2018.
29. In the light of these materials we shall have to examine the strength of
prosecution’s case to implicate the appellant in the offences specified
under Sections 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act.
There is also allegation against her for commission of offence under
Section 13 of the same statute, but that offence does not come under
the purview of the bail restricting provision of Section 43D (5) of the
1967 Act and we shall deal with that accusation in the succeeding
paragraphs of this judgment. The offences under Chapter IV of the
1967 Act with which the appellant has been charged with by the
prosecuting agency, mainly stem from commission of a terrorist
act or any act in connection therewith. Section 15 of the 1967 Act
stipulates: -
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“15. Terrorist act.— (1) Whoever does any act with intent
to threaten or likely to threaten the unity, integrity, security,
economic security, or sovereignty of India or with intent to
strike terror or likely to strike terror in the people or any
section of the people in India or in any foreign country,—
(a) by using bombs, dynamite or other explosive
substances or inflammable substances or
firearms or other lethal weapons or poisonous or
noxious gases or other chemicals or by any other
substances (whether biological radioactive,
nuclear or otherwise) of a hazardous nature
or by any other means of whatever nature to
cause or likely to cause—
(i) death of, or injuries to, any person or
persons; or
(ii) loss of, or damage to, or destruction of,
property; or
(iii) disruption of any supplies or services
essential to the life of the community in
India or in any foreign country; or
(iii-a) damage to, the monetary stability of
India by way of production or smuggling
or circulation of high quality counterfeit
Indian paper currency, coin or of any
other material; or
(iv) damage or destruction of any property
in India or in a foreign country used or
intended to be used for the defence of
India or in connection with any other
purposes of the Government of India,
any State Government or any of their
agencies; or
(b) overawes by means of criminal force or the show
of criminal force or attempts to do so or causes
death of any public functionary or attempts to
cause death of any public functionary; or
[2024] 4 S.C.R. 297
Shoma Kanti Sen v. The State of Maharashtra & Anr.
(c) detains, kidnaps or abducts any person and
threatens to kill or injure such person or does any
other act in order to compel the Government of
India, any State Government or the Government
of a foreign country or an international or inter-
governmental organisation or any other person
to do or abstain from doing any act; or commits
a terrorist act.
Explanation.—For the purpose of this sub-section,—
(a) “public functionary” means the constitutional
authorities or any other functionary notified in
the Official Gazette by the Central Government
as public functionary;
(b) “high quality counterfeit Indian currency” means
the counterfeit currency as may be declared
after examination by an authorised or notified
forensic authority that such currency imitates or
compromises with the key security features as
specified in the Third Schedule.
(2) The terrorist act includes an act which constitutes an
offence within the scope of, and as defined in any of the
treaties specified in the Second Schedule.”
30. We are not concerned with sub-section (2) of the said provision. In this
appeal, there is no allegation of any act of the appellant constituting
an offence within the scope of the Second Schedule to the same
statute. Sub-section (1) of Section 15 refers to certain acts which
would constitute a terrorist act but the first part of sub-section (1)
of Section 15 cannot be read in isolation. In our reading of the said
provision of the statute, to qualify for being a terrorist act, such act
must be done with intent to threaten or likely to threaten the unity,
integrity, security, economic security or sovereignty of India or such
act must be accompanied with an intent to strike terror or likely to
strike terror in the people or any section of the people in India or in
any foreign country. These are initial requirements to invoke Section
15(1) of the 1967 Act. The legislature, however, has not left the nature
of such acts unspecified and in sub-clauses (a), (b), and (c) of the
said sub-section, the law stipulates the manner of commission of
298 [2024] 4 S.C.R.
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the acts specified in first part of sub-section (1) of said Section 15. If
any offender attempts to commit any of the acts specified in Section
15(1), to come within the ambit of the expression “terrorist act” under
the 1967 legislation, action or intention to cause such act must be
by those means, which have been specified in sub-clauses (a), (b),
and (c) of the said provision. This is the line of reasoning broadly
followed by this Court in the case of Vernon (supra) in construing the
applicability of the said provision. If we examine the acts attributed
to the appellant by the various witnesses or as inferred from the
evidence relied on by the prosecution, we do not find prima facie
commission or attempt to commit any terrorist act by the appellant
applying the aforesaid test for invoking Section 15 read with Section
162 of the 1967 Act.
31. On the allegations of raising funds for a terrorist act forming part of
charges under Section 17 of the 19673 Act, most of the materials
have emanated from recovery of documents from devices of third
parties and at this stage, on the strength of the materials produced
before us, the prosecution has not been able to corroborate or even
raise a hint of corroboration of the allegation that the appellant has
funded any terrorist act or has received any money for that purpose.
What we can infer on the basis of the materials produced before us,
are mere third-party allegations that money has been directed to be
2 16. Punishment for terrorist act.—
(1) Whoever commits a terrorist act shall,—
(a) if such act has resulted in the death of any person, be punishable with death or imprisonment
for life, and shall also be liable to fine;
(b) in any other case, be punishable with imprisonment for a term which shall not be less than
five years but which may extend to imprisonment for life, and shall also be liable to fine.
3 17. Punishment for raising funds for terrorist act.—Whoever, in India or in a foreign country, directly
or indirectly, raises or provides funds or collects funds, whether from a legitimate or illegitimate source,
from any person or persons or attempts to provide to, or raises or collects funds for any person or
persons, knowing that such funds are likely to be used, in full or in part by such person or persons or
by a terrorist organisation or by a terrorist gang or by an individual terrorist to commit a terrorist act,
notwithstanding whether such funds were actually used or not for commission of such act, shall be
punishable with imprisonment for a term which shall not be less than five years but which may extend to
imprisonment for life, and shall also be liable to fine.
Explanation.—For the purpose of this section,—
(a) participating, organising or directing in any of the acts stated therein shall constitute an
offence;
(b) raising funds shall include raising or collecting or providing funds through production or
smuggling or circulation of high quality counterfeit Indian currency; and
(c) raising or collecting or providing funds, in any manner for the benefit of, or, to an individual
terrorist, terrorist gang or terrorist organisation for the purpose not specifically covered under
Section 15 shall also be construed as an offence.
[2024] 4 S.C.R. 299
Shoma Kanti Sen v. The State of Maharashtra & Anr.
sent to her. None of the materials reveal receipt of any funds by her
or her direct role in raising or collecting funds. We are conscious
of the fact that in course of trial, the prosecution will have the
opportunity to bring more detailed evidence in that regard, but here
we are only examining whether the offences under Part IV & VI of
the 1967 Act, alleged to have been committed by the appellant, are
prima facie true or not.
32. As regards the allegation against the appellant for committing an
offence under Section 184 of the 1967 Act are concerned, which
includes conspiracy or attempt on her part to commit, advocate, abet,
advice, incite or facilitate commission or any terrorist act, the materials
collected so far, even if we believe them to be true at this stage,
applying the principles enunciated by this Court in the case of Zahoor
Ahmad Shah Watali (supra), only reveal her participation in some
meetings and her attempt to encourage women to join the struggle
for new democratic revolution. These allegations, prima facie, do not
reveal the commission of an offence under Section 18 of the 1967 Act.
33. KW-2 has found her to be present in the office of another co-accused
Surendra, when he was being convinced by Surendra to join CPI
(Maoist), but her mere presence on the spot, by itself, would not
constitute an offence of recruiting any person or persons for a terrorist
act, as specified in Section 18 thereof. As regards the statement of
KW-3, he claims to have met the appellant in 2007-08 during her
lectures on communist ideology and party-functioning of CPI (Maoist)
at Nagpur. At that point of time, CPI (Maoist) had not been included in
the First Schedule of the 1967 Act enumerating terrorist organisations.
It came to be banned on 22.06.2009, as we have already specified.
Kumarasai, i.e. KW-4 in his third statement recorded on 24.08.2020
has only stated she is an urban Naxal working for CPI (Maoist). On
this thin thread, we cannot apply the rigors of Section 43D (5) of
the 1967 Act against her. Apart from that, there is no evidence that
she was a member of CPI (Maoist). There are no specific materials
or statements produced by the prosecution which attribute acts of
recruitment in banned organization by the appellant. Thus, at this
4 18. Punishment for conspiracy, etc.—Whoever conspires or attempts to commit, or advocates, abets,
advises or incites, directs or knowingly facilitates the commission of, a terrorist act or any act preparatory
to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be
less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
300 [2024] 4 S.C.R.
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stage, we cannot form an opinion that the accusation against her
under Section 18-B5 of the 1967 Act is prima facie true.
34. So far as the allegation of prosecution of the appellant being member of
frontal organisation of CPI (Maoist), reference has been made to RDF,
IAPL, CPDR, AGMC and KKM. But apart from mere allegations that
these are frontal organizations of CPI (Maoist), no credible evidence
has been produced before us through which these organisations can
be connected to the aforesaid banned terrorist organization. Thus, the
offence under Section 20 of the 1967 Act relating to membership of
a terrorist organisation which is involved in a terrorist act, cannot be
made out against the appellant at this stage, on the basis of materials
produced before us. Relying on the judgement of this Court in the
case of Vernon (supra), we have already dealt with the position of
the appellant vis-à-vis terrorist acts in the earlier paragraphs of this
judgement and we prima facie do not think that Section 206 of the
1967 Act can be made applicable against the appellant at this stage
of the proceeding based on the available materials.
35. The next set of allegations against her to bring her case within the
bail restricting provisions relates to offences specified under Chapter
VI of 1967 Act. This set of allegations relates to being associated
with a terrorist organization. We have already given our finding on
such allegations and in our prima facie opinion, the allegations of the
prosecution that the appellant is a member of a terrorist organisation
or that she associates herself or professes to associate herself with
a terrorist organization are not true, and at this stage, she cannot
be implicated in the offence under Sections 387 of 1967 Act. Mere
5 18-B. Punishment for recruiting of any person or persons for terrorist act.—Whoever recruits or
causes to be recruited any person or persons for commission of a terrorist act shall be punishable with
imprisonment for a term which shall not be less than five years but which may extend to imprisonment
for life, and shall also be liable to fine.
6 20. Punishment for being member of terrorist gang or organisation.—Any person who is a member
of a terrorist gang or a terrorist organisation, which is involved in terrorist act, shall be punishable with
imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.
7 38. Offence relating to membership of a terrorist organisation.—
(1) A person, who associates himself, or professes to be associated, with a terrorist organisation
with intention to further its activities, commits an offence relating to membership of a terrorist
organisation:
Provided that this sub-section shall not apply where the person charged is able to prove—
(a) that the organisation was not declared as a terrorist organisation at the time when he became
a member or began to profess to be a member; and
(b) that he has not taken part in the activities of the organisation at any time during its inclusion
in the First Schedule as a terrorist organisation.
[2024] 4 S.C.R. 301
Shoma Kanti Sen v. The State of Maharashtra & Anr.
meeting of accused individuals or being connected with them through
any medium cannot implicate one in Chapter VI offences under of the
1967 Act, in the absence of any further evidence of being associated
with a terrorist organisation. Such association or connection must
be in relation to furtherance of terrorist act. It has been held by this
Court in the case of Vernon (supra):-
“32. “Terrorist act” as defined under Section 2(k) of the
1967 Act carries the meaning assigned to it in Section 15.
This Section also stipulates that the expressions “terrorism”
and “terrorist” shall be construed accordingly. This implies
construction of these two expressions in the same way as
has been done in Section 15.
“terrorist organisation” has been independently defined
in Section 2(m) to mean an organisation listed in the
First Schedule or an organisation operating under the
same name as an organisation so listed. But so far as
the word “terrorist” is concerned, in this Section also,
the interpretation thereof would be relatable to the same
expression as used in Section 15. It is one of the basic
rules of statutory construction that an expression used
in different parts of a statute shall ordinarily convey the
same meaning – unless contrary intention appears from
different parts of the same enactment itself. We do not
find any such contrary intention in the 1967 Act.
33. Section 38 of the 1967 Act carries the heading or title
“offence relating to membership of a terrorist organisation”.
As we have already observed, a terrorist act would have to
be construed having regard to the meaning assigned to it
in Section 15 thereof. We have given our interpretation to
this provision earlier. “terrorist organisation” [as employed
in Section 2(m)], in our opinion is not a mere nomenclature
and this expression would mean an organisation that carries
on or indulges in terrorist acts, as defined in said Section
15. The term terrorism, in view of the provisions of Section
(2) A person, who commits the offence relating to membership of a terrorist organisation under sub-
section (1), shall be punishable with imprisonment for a term not exceeding ten years, or with fine,
or with both.
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2(k) of the said Act, ought to be interpreted in tandem with
what is meant by ‘terrorist Act’ in Section 15 thereof.
34. In this context, to bring the appellants within the fold of
Section 38 of the 1967 Act, the prosecution ought to have
prima facie establish their association with intention to further
the said organisation’s terrorist activities. It is only when such
intention to further the terrorist activities is established prima
facie, appellants could be brought within the fold of the offence
relating to membership of a terrorist organisation. To bring
within the scope of Section 38 of the 1967 Act, it would not be
sufficient to demonstrate that one is an associate or someone
who professes to be associated with a terrorist organisation.
But there must be intention to further the activities of such
organisation on the part of the person implicated under
such provision. But the same line of reasoning in respect
of membership of a terrorist organisation under Section 20,
ought to apply in respect of an alleged offender implicated
in Section 38 of the 1967 Act. There must be evidence of
there being intention to be involved in a terrorist act. So far
as the appellants are concerned, at this stage there is no
such evidence before us on which we can rely.”
We, further, do not think the undated account statement has sufficient
probative value at this stage to prima facie sustain a case against
her and implicate her for offences relating to the provision of support
or raising of funds for a terrorist organisation, specified under
Section 398 and 409 of 1967 Act. Evidence of her involvement in
8 39. Offence relating to support given to a terrorist organisation. —
(1) A person commits the offence relating to support given for a terrorist organisation,—
(a) who, with intention to further the activity of a terrorist organisation,—
(i) invites support for the terrorist organisation, and
(ii) the support is not or is not restricted to provide money or other property within the
meaning of Section 40; or
(b) who, with intention to further the activity of a terrorist organisation, arranges, manages or
assists in arranging or managing a meeting which, he knows, is—
(i) to support the terrorist organisation, or
(ii) to further the activity of the terrorist organisation, or
(iii) to be addressed by a person who associates or professes to be associated with the
terrorist organisation; or
(c) who, with intention to further the activity of a terrorist organisation, addresses a meeting
for the purpose of encouraging support for the terrorist organisation or to further its activity.
(2) A person, who commits the offence relating to support given to a terrorist organisation under sub-
section (1) shall be punishable with imprisonment for a term not exceeding ten years, or with fine,
or with both.
9 40. Offence of raising fund for a terrorist organisation.—
[2024] 4 S.C.R. 303
Shoma Kanti Sen v. The State of Maharashtra & Anr.
any fund-raising activities for the CPI (Maoist) or her support to the
said organisation has not transpired through any reliable evidence
before us at this stage.
36. In the light of our observations made in this judgment and on our
perusal of the evidences collected against her as also the allegations
made by prosecution witnesses, we are of the opinion that there is
no reasonable ground for believing that the accusations against the
appellants for commission of the offences incorporated in Chapter
IV and VI of the 1967 Act are prima facie true.
37. In the case of K.A. Najeeb -vs- Union of India [(2021) 3 SCC 713],
a three Judge Bench of this Court (of which one of us Aniruddha
Bose, J was a party), has held that a Constitutional Court is not strictly
bound by the prohibitory provisions of grant of bail in the 1967 Act
and can exercise its constitutional jurisdiction to release an accused
on bail who has been incarcerated for a long period of time, relying
on Article 21 of Constitution of India. This decision was sought to
be distinguished by Mr. Nataraj on facts relying on judgment of this
Court in the case of Gurwinder Singh -vs- State of Punjab [2024
INSC 92]. In this judgment, it has been held:-
“32. The Appellant’s counsel has relied upon the case of
KA Najeeb (supra) to back its contention that the appellant
has been in jail for last five years which is contrary to
law laid down in the said case. While this argument may
appear compelling at first glance, it lacks depth and 22
substance. In KA Najeeb’s case this court was confronted
with a circumstance wherein except the respondent-
(1) A person commits the offence of raising fund for a terrorist organisation, who, with intention to
further the activity of a terrorist organisation,—
(a) invites another person to provide money or other property, and intends that it should be used,
or has reasonable cause to suspect that it might be used, for the purposes of terrorism; or
(b) receives money or other property, and intends that it should be used, or has reasonable
cause to suspect that it might be used, for the purposes of terrorism; or
(c) provides money or other property, and knows, or has reasonable cause to suspect, that it
would or might be used for the purposes of terrorism.
Explanation.—For the purposes of this sub-section, a reference to provide money or other property
includes—
(a) of its being given, lent or otherwise made available, whether or not for consideration; or
(b) raising, collecting or providing funds through production or smuggling or circulation of high
quality counterfeit Indian currency.
(2) A person, who commits the offence of raising fund for a terrorist organisation under sub-section
(1), shall be punishable with imprisonment for a term not exceeding fourteen years, or with fine,
or with both.
304 [2024] 4 S.C.R.
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accused, other co-accused had already undergone trial
and were sentenced to imprisonment of not exceeding
eight years therefore this court’s decision to consider
bail was grounded in the anticipation of the impending
sentence that the respondent accused might face upon
conviction and since the respondent-accused had already
served portion of the maximum imprisonment i.e., more
than five years, this court took it as a factor influencing its
assessment to grant bail. Further, in KA Najeeb’s case the
trial of the respondent-accused was severed from the other
co-accused owing to his absconding and he was traced
back in 2015 and was being separately tried thereafter and
the NIA had filed a long list of witnesses that were left to
be examined with reference to the said accused therefore
this court was of the view of unlikelihood of completion of
trial in near future. However, in the present case the trial is
already under way and 22 witnesses including the protected
witnesses have been examined. As already discussed, the
material available on record indicates the involvement of
the appellant in furtherance of terrorist activities backed
by members of banned terrorist organization involving
exchange of large quantum of money through different
channels which needs to be deciphered and therefore in
such a scenario if the appellant is released on bail there
is every likelihood that he will influence the key witnesses
of the case which might hamper the process of justice. 23
Therefore, mere delay in trial pertaining to grave offences
as one involved in the instant case cannot be used as a
ground to grant bail. Hence, the aforesaid argument on
the behalf the appellant cannot be accepted.”
38. Relying on this judgement, Mr. Nataraj, submits that bail is not a
fundamental right. Secondly, to be entitled to be enlarged on bail,
an accused charged with offences enumerated in Chapters IV and
VI of the 1967 Act, must fulfil the conditions specified in Section
43D (5) thereof. We do not accept the first part of this submission.
This Court has already accepted right of an accused under the said
offences of the 1967 Act to be enlarged on bail founding such right
on Article 21 of the Constitution of India. This was in the case of
Najeeb (supra), and in that judgment, long period of incarceration
[2024] 4 S.C.R. 305
Shoma Kanti Sen v. The State of Maharashtra & Anr.
was held to be a valid ground to enlarge an accused on bail in
spite of the bail-restricting provision of Section 43D (5) of the 1967
Act. Pre-conviction detention is necessary to collect evidence (at
the investigation stage), to maintain purity in the course of trial and
also to prevent an accused from being fugitive from justice. Such
detention is also necessary to prevent further commission of offence
by the same accused. Depending on gravity and seriousness of the
offence alleged to have been committed by an accused, detention
before conclusion of trial at the investigation and post-chargesheet
stage has the sanction of law broadly on these reasonings. But
any form of deprival of liberty results in breach of Article 21 of the
Constitution of India and must be justified on the ground of being
reasonable, following a just and fair procedure and such deprival
must be proportionate in the facts of a given case. These would
be the overarching principles which the law Courts would have to
apply while testing prosecution’s plea of pre-trial detention, both at
investigation and post-chargesheet stage.
39. As regards second part of Mr. Nataraj’s argument which we have
noted in the preceding paragraph, we accept it with a qualification. The
reasoning in Najeeb’s (supra) case would also have to be examined,
if it is the Constitutional Court which is examining prosecution’s plea
for retaining in custody an accused charged with bail-restricting
offences. He cited the case of Gurwinder Singh (supra) in which
the judgement of K. A. Najeeb (supra) was distinguished on facts
and a judgment of the High Court rejecting the prayer for bail of the
appellant was upheld. But this was a judgment in the given facts of
that case and did not dislocate the axis of reasoning on constitutional
ground enunciated in the case of Najeeb (supra). On behalf of
the prosecution, another order of a Coordinate Bench passed on
18.01.2024, in the case of Mazhar Khan -vs- N.I.A. New Delhi
[Special Leave Petition (Crl) No. 14091 of 2023] was cited. In this
order, the petitioner’s prayer for overturning a bail-rejection order of the
High Court under similar provisions of the 1967 Act was rejected by
the Coordinate Bench applying the ratio of the case of Watali (supra)
judgment and also considering the case of Vernon (supra). We have
proceeded in this judgment accepting the restrictive provisions to be
valid and applicable and then dealt with the individual allegations in
terms of the proviso to Section 43D (5) of the 1967 Act. Thus, the
prosecution’s case, so far as the appellant is concerned, does not
306 [2024] 4 S.C.R.
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gain any premium from the reasoning forming the basis of the case
of Mazhar Khan (supra).
40. Two authorities have been cited by the appellant in which gross
delay in trial was held to be a ground for granting bail in statutes in
which there was restriction on such grant. These are the judgements
of this court in the cases of Shaheen Welfare Association -vs-
Union of India and Others [(1996) 2 SCC 616] and Angela Harish
Sontakke -vs- State of Maharashtra [(2021) 3 SCC 723]. But each
of these cases has been decided on their own facts and so far as
the appellant’s case is concerned, we have examined the materials
disclosed before us and given our finding as regards applicability of
Section 43D (5) of the 1967 Act in her case.
41. Once we find that Section 43D (5) of the 1967 Act would not be
applicable in the case of the appellant, we shall have to examine
the case of the appellant in relation to accusation against her
under Section 13 of the 1967 Act and also other offences under
the provisions of the 1860 Code, which we have narrated earlier.
We have already indicated that she is a lady of advanced age,
suffering from various ailments. The ailments by themselves may not
be serious enough for granting bail on medical ground. But taking
cognizance of the composite effect of delay in framing charge, period
of detention undergone by her, the nature of allegations against
her vis-à-vis the materials available before this Court at this stage
in addition to her age and medical condition, we do not think she
ought to be denied the privilege of being enlarged on bail pending
further process subsequent to issue of chargesheets against her
in the subject-case.
42. We repeat here that our observations as regards the nature of
allegations against her are only prima facie views and the future
course of her prosecution would be dependent upon framing of charge
and if charges are framed, the nature of evidence the prosecution
can adduce against her in trial as also her own defence. With these
observations, we set aside the impugned judgment and direct that
the appellant be released on bail on such conditions the Special
Court may consider fit and proper but the conditions shall include
the following:-
(a) The appellant shall not leave the State of Maharashtra without
leave of the Special Court.
[2024] 4 S.C.R. 307
Shoma Kanti Sen v. The State of Maharashtra & Anr.
(b) The appellant shall surrender her passport, if she possesses
one, with the Special Court, during the period she remains
enlarged on bail.
(c) The appellant shall inform the Investigating Officer of the NIA the
address where she shall reside during the period she remains
enlarged on bail.
(d) The appellant shall use only one mobile number, during the
time she remains on bail, and shall inform her mobile number
to the Investigating Officer of the NIA.
(e) The appellant shall also ensure that her mobile phone remains
active and charged round the clock so that she remains
constantly accessible throughout the period she remains
enlarged on bail.
(f) During this period, i.e. the period during which she remains on
bail, the appellant shall keep the location status (GPS) of her
mobile phone active, twenty-four hours a day, and her phone
shall be paired with that of the Investigating Officer of the NIA
to enable him, at any given time, to identify the appellants’
exact location.
(g) The appellant, while on bail, shall report to the Station House
Officer of the Police Station within whose jurisdiction she shall
reside, once every fortnight.
43. In the event there is breach of any of these conditions or any other
condition that may be imposed by the Special Court independently, it
would be open to the prosecution to seek cancellation of bail granted
to the appellant before the Special Court only, without any further
reference to this Court.
44. The appeal stands allowed in the above terms and Criminal
Miscellaneous Petition No.166531 of 2023 shall also stand disposed
of.
45. Pending application(s), if any, shall stand disposed of.
Headnotes prepared by: Ankit Gyan Result of the case:
Appeal allowed.
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