# Shoma Kanti Sen v. The State of Maharashtra & Anr

- **Citation:** 2024 INSC 269
- **Court:** Supreme Court of India
- **Decided:** 2024-04-05
- **Case number:** Criminal Appeal No. 2595 of 2023
- **Bench:** Aniruddha Bose, Augustine George Masih
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shoma-kanti-sen-v-the-state-of-maharashtra-anr-37568
- **Pages:** 38

## Headnote

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
[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

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* Author
[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
[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.
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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; Nonframing 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
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[2024] 4 S.C.R.
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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
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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
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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.
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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."
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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.
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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
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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 chargesheets. 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
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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."
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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
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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.