# VERNON v. THE STATE OF MAHARASHTRA & ANR

- **Citation:** 2023 INSC 655
- **Court:** Supreme Court of India
- **Decided:** 2023-07-28
- **Case number:** Criminal Appeal No. 639 of 2023
- **Bench:** Aniruddha Bose, Sudhanshu Dhulia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vernon-v-the-state-of-maharashtra-anr-36368
- **Pages:** 46

## Headnote

Unlawful Activities (Prevention) Act, 1967 - Chapters IV and
VI- ss.16, 17, 18, 18B, 20, 38, 39, 40 and ss.13, 43D(5) - Denial of
bail - When not justified - Bhima-Koregaon violence - FIR - Scope
of the investigation was expanded - Searches were conducted at
the residences/workplaces of the appellants and they were arrested
- Case of the NIA is that various letters and other materials recovered
from the arrested co-accused persons showed appellants'
involvement with the CPI (Maoist), an organization placed in the
First Schedule to the 1967 Act as a terrorist organization - It is
alleged that the appellants played an active role in recruitment of
and training for cadres of the said organization and that one of the
appellant also had role in managing finances thereof - Bail plea of
the appellants dismissed by High Court - Held: Contents of the
letters through which the appellants are sought to be implicated are
in the nature of hearsay evidence, recovered from co-accused - No
covert or overt terrorist act was attributed to the appellants in these
letters or any other material - The letters were not recovered from
the appellants - Hence, these communications or content thereof
have weak probative value or quality - No credible case of
conspiracy to commit offences enumerated under Chapter IV and
VI - Mere participation in seminars by itself cannot constitute an
offence under the bail-restricting Sections of the 1967 Act - No
material was demonstrated that the appellants are members of the
terrorist organization - The funds, dealing with which was attributed
to one of the appellant cannot be connected to any terrorist act -
No reasonable grounds for believing that the accusation against
the appellant of committing or conspiring to commit terrorist act is
prima facie true - Juxtaposing the appellants' case founded on
Articles 14 and 21 with the allegations and considering the fact
that almost five years have lapsed since they were taken into custody,
the appellants have made out a case for granting bail - Impugned
[2023] 10 S.C.R. 867 : 2023 INSC 655
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judgments set aside - Appellants be released on bail, on such terms
and conditions the Special Court may consider fit - Conditions to
be imposed, enumerated - Penal Code, 1860 - ss. 121, 121A, 124A,
153A, 505(1)(b), 117, 120B r/w 34 - Constitution of India - Arts.
14, 21 - National Investigation Agency Act, 2008 - Bail.
Unlawful Activities (Prevention) Act, 1967 - s.15(1)(a)-(c) -
When not attracted - Held: In none of the materials which have
been referred to by the prosecution, the acts specified to in subclause (a) of s.15(1) can be attributed to the appellants - Nor there
is any allegation against them which would attract sub-clause (c)
of s.15(1) - Further, mere holding of certain literatures through
which violent acts may be propagated would not ipso facto attract
the provisions of s.15(1)(b) - Thus, prima facie, there is no case
against the appellants u/s.15(1) (b).
Unlawful Activities (Prevention) Act, 1967 - s.20 -
Interpretation given to s.20 by Bombay High Court in Dr. Anand
Teltumbde vs. National Investigation Agency and Another case for
testing as to who would be a member of terrorist gang or terrorist
organisation, affirmed - In the present case, on facts, s.20 cannot
be made applicable against the appellants at this stage of the
proceeding, on the basis of available materials.
Unlawful Activities (Prevention) Act, 1967 - s.2(k), 2(m), 15
- Held: "Terrorist act" as defined u/s.2(k) carries the meaning
assigned to it in s.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 s.15 - "terrorist organisation"
has been independently defined in s.2(m) - But so far as the word
"terrorist" is concerned, in this Section also, the interpretation
thereof would be relatable t

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VERNON
v.
THE STATE OF MAHARASHTRA & ANR.
(Criminal Appeal No. 639 of 2023)
JULY 28, 2023
[ANIRUDDHA BOSE AND SUDHANSHU DHULIA, JJ.]
Unlawful Activities (Prevention) Act, 1967 - Chapters IV and
VI- ss.16, 17, 18, 18B, 20, 38, 39, 40 and ss.13, 43D(5) - Denial of
bail - When not justified - Bhima-Koregaon violence - FIR - Scope
of the investigation was expanded - Searches were conducted at
the residences/workplaces of the appellants and they were arrested
- Case of the NIA is that various letters and other materials recovered
from the arrested co-accused persons showed appellants'
involvement with the CPI (Maoist), an organization placed in the
First Schedule to the 1967 Act as a terrorist organization - It is
alleged that the appellants played an active role in recruitment of
and training for cadres of the said organization and that one of the
appellant also had role in managing finances thereof - Bail plea of
the appellants dismissed by High Court - Held: Contents of the
letters through which the appellants are sought to be implicated are
in the nature of hearsay evidence, recovered from co-accused - No
covert or overt terrorist act was attributed to the appellants in these
letters or any other material - The letters were not recovered from
the appellants - Hence, these communications or content thereof
have weak probative value or quality - No credible case of
conspiracy to commit offences enumerated under Chapter IV and
VI - Mere participation in seminars by itself cannot constitute an
offence under the bail-restricting Sections of the 1967 Act - No
material was demonstrated that the appellants are members of the
terrorist organization - The funds, dealing with which was attributed
to one of the appellant cannot be connected to any terrorist act -
No reasonable grounds for believing that the accusation against
the appellant of committing or conspiring to commit terrorist act is
prima facie true - Juxtaposing the appellants' case founded on
Articles 14 and 21 with the allegations and considering the fact
that almost five years have lapsed since they were taken into custody,
the appellants have made out a case for granting bail - Impugned
[2023] 10 S.C.R. 867 : 2023 INSC 655
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judgments set aside - Appellants be released on bail, on such terms
and conditions the Special Court may consider fit - Conditions to
be imposed, enumerated - Penal Code, 1860 - ss. 121, 121A, 124A,
153A, 505(1)(b), 117, 120B r/w 34 - Constitution of India - Arts.
14, 21 - National Investigation Agency Act, 2008 - Bail.
Unlawful Activities (Prevention) Act, 1967 - s.15(1)(a)-(c) -
When not attracted - Held: In none of the materials which have
been referred to by the prosecution, the acts specified to in subclause (a) of s.15(1) can be attributed to the appellants - Nor there
is any allegation against them which would attract sub-clause (c)
of s.15(1) - Further, mere holding of certain literatures through
which violent acts may be propagated would not ipso facto attract
the provisions of s.15(1)(b) - Thus, prima facie, there is no case
against the appellants u/s.15(1) (b).
Unlawful Activities (Prevention) Act, 1967 - s.20 -
Interpretation given to s.20 by Bombay High Court in Dr. Anand
Teltumbde vs. National Investigation Agency and Another case for
testing as to who would be a member of terrorist gang or terrorist
organisation, affirmed - In the present case, on facts, s.20 cannot
be made applicable against the appellants at this stage of the
proceeding, on the basis of available materials.
Unlawful Activities (Prevention) Act, 1967 - s.2(k), 2(m), 15
- Held: "Terrorist act" as defined u/s.2(k) carries the meaning
assigned to it in s.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 s.15 - "terrorist organisation"
has been independently defined in s.2(m) - 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 s.15 -
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 - No such contrary
intention is found in the 1967 Act - Interpretation of Statutes.
Bail - Duty of the Court - Held: There is a duty of the Court
to form an opinion on perusal of the case diary or the report made
u/s.173, CrPC that there are reasonable grounds for believing that
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the accusations against such persons are prima facie true while
considering the prayer for bail, to reject prayers for bail of the
appellants - Code of Criminal Procedure, 1973 - s.173 - Criminal
Law.
Unlawful Activities (Prevention) Act, 1967 - ss.38, 20 -
Offence relating to membership of a terrorist organisation - Held:
To bring within the scope of s.38, 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 - The same line of
reasoning in respect of membership of a terrorist organisation u/s.
20, ought to apply in respect of an alleged offender implicated in
s.38 - 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 which can be relied on.
Bail - Prima facie "test" - Held: 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 - Criminal Law.
Unlawful Activities (Prevention) Act, 1967 - ss.38, 39, 43D
(5) - "intention to further activities" - Held: The interpretation
given to the phrase "intention to further activities" of terrorist
organisation could also apply in the same way in relation to s.39 -
In the present case, there has been no credible evidence against the
appellants of commission of any terrorist act or enter into conspiracy
to do so to invoke the provisions of s.43D (5).
Bail - Unlawful Activities (Prevention) Act, 1967 - Narcotic
Drugs and Psychotropic Substances Act, 1985 - s.37 - Held: The
restrictions on the Court while examining the question of bail under
the 1967 Act is less stringent in comparison to the provisions of
s.37, Narcotic Drugs and Psychotropic Substances Act, 1985 -
Criminal Law.
Bail - Unlawful Activities (Prevention) Act, 1967 - Bail
restricting sections - Jurisdiction of Constitutional Court - Held: A
bail restricting clause cannot denude the jurisdiction of a
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Constitutional Court in testing if continued detention in a given
case would breach the concept of liberty enshrined in Article 21,
would apply in a case where such a bail-restricting clause is being
invoked on the basis of materials with prima facie low-probative
value or quality - Constitution of India - Article 21 - Criminal
Law.
Criminal Law - Stringent provisions of a statute -
Interpretation of - Held: When the statutes have stringent provisions,
the duty of the Court would be more onerous - Graver the offence,
greater should be the care taken to see that the offence would fall
within the four corners of the Act - Unlawful Activities (Prevention)
Act, 1967 - Terrorist and Disruptive Activities (Prevention) Act, 1987
- Interpretation of Statutes.
Allowing the appeals, the Court
HELD: 1.1 As it would be evident from the analysis of the
evidence cited by the NIA, the acts allegedly committed by the
appellants can be categorised under three heads. The first is their
association with a terrorist organisation which the prosecution
claims from the letters and witness statements. But what this
Court must be conscious of, while dealing with prima facie worth
of these statements and documents is that none of them had been
seized or recovered from the appellants but these recoveries
are alleged to have been made from the co-accused. The second
head of alleged offensive acts of the appellants is keeping
literatures propagating violence and promoting overthrowing of
a democratically elected government through armed struggle.
But again, it is not the NIA's case that either of the two appellants
is the author of the materials found from their residences, as
alleged. None of these literatures has been specifically proscribed
so as to constitute an offence, just by keeping them. Thirdly, so
far as AF is concerned, some materials point to handling of
finances. But such finances, as per the materials through which
the dealings are sought to be established, show that the
transaction was mainly for the purpose of litigation on behalf of, it
appears to us, detained party persons. The formation of or
association with a legal front of the banned terrorist organisation
has also been attributed to AF, in addition. The High Court while
analysing each of these documents individually did not opine that
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there were reasonable grounds for believing that the accusations
against such persons were not prima facie true. Those offences
which come within Chapters IV and VI of the 1967 Act, charged
against the appellants, are Sections 16, 17, 18, 18B, 20, 38, 39
and 40. In none of the materials which have been referred to by
the prosecution, the acts specified to in sub-clause (a) of Section
15(1) of the 1967 Act can be attributed to the appellants. Nor
there is any allegation against them which would attract subclause
(c) of Section 15(1) of the said statute. As regards the acts
specified in Section 15(1) (b) thereof, some of the literature
alleged to have been recovered from the appellants, by
themselves give hint of propagation of such activities. But there
is nothing against the appellants to prima facie establish that they
had indulged in the activities which would constitute overawing
any public functionary by means of criminal force or the show of
criminal force or attempts by the appellants to do so. Neither
there is allegation against them of causing death of any public
functionary or attempt to cause death of such functionary. Mere
holding of certain literatures through which violent acts may be
propagated would not ipso facto attract the provisions of Section
15(1)(b) of the said Act. Thus, prima facie, this Court cannot
reasonably come to a finding that any case against the appellants
under Section 15(1) (b) of 1967 Act can be held to be true. [Paras
24 and 26][903-B-F; 904-B-E]
1.2 Section 17 of the 1967 Act deals with punishment for
raising funds for terrorist acts. Here also the funds, dealing with
which has been attributed to AF, cannot be connected to any
terrorist act. In the case of Dr. Anand Teltumbde the same account
statement was referred to. There is also a request made to 'S'
from an unnamed person to ask AF to manage the financial
expenses of "these cases". The name of another 'A', with the
surname Bhelke has surfaced in Annexure "R-19" to the NIA's
counter-affidavit in AF's case. This is a copy of a witness
statement. In absence of any form of corroboration at the prima
facie stage it cannot be presumed that it was the same Arun (i.e.,
AF) who had received money from 'D'. The prosecution has also
not produced any material to show that actual money was
transmitted. The communication dated 5th November 2017 ("R5"), purportedly addressed by 'S' to 'P' does not speak of any
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payment being made to AF. The rationale applied by the Bombay
High Court in the abovequoted passage of the judgment in the
case of Dr. Anand Teltumbde, which has been sustained by this
Court, ought to apply in the case of AF as well. [Paras 27 and
28][904-E-F; 905-D-F]
1.3 It is not possible to form an opinion that there are
reasonable grounds for believing that the accusation against the
appellant of committing or conspiring to commit terrorist act is
prima facie true. The witness statements do not refer to any
terrorist act alleged to have been committed by the appellants.
The copies of the letters in which the appellants or any one of
them have been referred, record only third-party response or
reaction of the appellants' activities contained in communications
among different individuals. These have not been recovered from
the appellants. Hence, these communications or content thereof
have weak probative value or quality. That being the position,
neither the provisions of Section 18 nor 18B can be invoked
against the appellants, prima facie, at this stage. The association
of the appellants with the activities of the designated terrorist
organisation is sought to be established through third party
communications. Moreover, actual involvement of the appellants
in any terrorist act has not surfaced from any of these
communications. Nor there is any credible case of conspiracy to
commit offences enumerated under chapters IV and VI of the
1967 Act. Mere participation in seminars by itself cannot
constitute an offence under the bail-restricting Sections of the
1967 Act, with which they have been charged. [Para 29][905-FH; 906-A-B]
1.4 So far as application of Section 20 of the 1967 Act is
concerned, the Bombay High Court in the case of Dr. Anand
Teltumbde construed the said provision. This judgment has not
been interfered with and this Court also affirm this interpretation
given to Section 20 of the 1967 Act for testing as to who would be
a member of terrorist gang or terrorist organisation. Moreover,
no material has been demonstrated by the NIA that the appellants
are members of the terrorist organisation. AF's involvement with
IAPL as a frontal organisation of the Communist Party of India
(Maoist) is sought to be established, and that has been referred
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to in the chargesheet as well. But the link between IAPL and the
CPI (Maoist) has not been clearly demonstrated through any
material. Reference to AF and VG as members of the CPI (Maoist)
appears from the statement of protected witness, but that link is
made in relation to events between the years 2002-2007, before
the organisation was included in the First Schedule to the 1967
Act. No evidence of continued membership after the party was
classified as a terrorist organisation has been brought to this
Court's notice. Nor is there any reliable evidence to link IAPL
with CPI (Maoist) as its frontal organisation. Prima facie this Court
does not think that Section 20 can be made applicable against
the appellants at this stage of the proceeding, on the basis of
available materials. [Paras 30 and 31][906-C, F-H; 907-A-B]
Dr. Anand Teltumbde v. National Investigation Agency
and Another 2022 SCC OnLine Bom 5174 - approved.
1.5 "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. No such contrary intention can be found in the 1967 Act.
Section 38 of the 1967 Act carries the heading or title "offence
relating to membership of a terrorist organisation". A terrorist
act would have to be construed having regard to the meaning
assigned to it in Section 15 thereof. Interpretation to this
provision has been given earlier. "terrorist organisation" [as
employed in Section 2(m)], is not a mere nomenclature and this
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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(k) of the said Act, ought to
be interpreted in tandem with what is meant by 'terrorist Act' in
Section 15 thereof. [Paras 32 and 33][907-B-G]
1.6 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 which can be relied on. The Court ought to carefully
examine every case, before making an assessment if the Act would
apply or not. When the statutes have stringent provisions the
duty of the Court would be more onerous. Graver the offence,
greater should be the care taken to see that the offence would
fall within the four corners of the Act. Though these judgments
were delivered while testing similar rigorous provisions under
the Terrorist and Disruptive Activities (Prevention) Act, 1987,
the same principle would apply in respect of the 1967 Act as well.
[Paras 34 and 35][907-G-H; 908-A-F]
1.7 In the case of Zahoor Ahmad Shah Watali, 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 prevail, unless overcome or disproved by other
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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 this Court's 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. In the case of the
appellants, contents of the letters through which the appellants
are sought to be implicated are in the nature of hearsay evidence,
recovered from co-accused. Moreover, no covert or overt
terrorist act has been attributed to the appellants in these letters,
or any other material forming part of records of these two appeals.
Reference to the activities of the accused are in the nature of
ideological propagation and allegations of recruitment. No
evidence of any of the persons who are alleged to have been
recruited or have joined this "struggle" inspired by the appellants
has been brought before us. Thus, NIA's contention that the
appellants have committed the offence relating to support given
to a terrorist organisation is not accepted. The second set of
materials include the witness statements. There also no covert
or overt act of terrorism has been attributed to the appellants by
the three witnesses. Mere possession of the literature, even if
the content thereof inspires or propagates violence, by itself
cannot constitute any of the offences within Chapters IV and VI
of the 1967 Act. [Paras 36 and 37][908-F-H; 909-A-D]
National Investigation Agency v. Zahoor Ahmad Shah
Watali (2019) 5 SCC 1 : [2019] 5 SCR 1060 - referred
to.
1.8 Sections 38 and 39 of the 1967 Act have already been
analysed. The interpretation given to the phrase "intention to
further activities" of terrorist organisation could also apply in
the same way in relation to Section 39 of the same statute. There
has been no credible evidence against the appellants of
commission of any terrorist act or enter into conspiracy to do so
to invoke the provisions of Section 43D (5) of the 1967 Act. As
far as raising funds for a terrorist organisation is concerned, at
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this stage, in absence of better evidence, the account statement
is not credible enough to justify invoking the bail-restricting
clause by attracting Section 40 of the 1967 Act. [Paras 38 and
39][909-E-F]
1.9 These findings are being returned as the restrictions
on the Court while examining the question of bail under the 1967
Act is less stringent in comparison to the provisions of Section
37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
This Court is not called upon, for granting a bail to an accused
with commercial quantity of contraband article under the 1985
Act, to satisfy ourselves that there are reasonable grounds for
believing that an accused is not guilty of such offence and that he
is not likely to commit any offence while on bail. Here, this Court
has to satisfy ourselves that the specified offences alleged to have
been committed by the appellants cannot be held to be prima
facie true. [Para 40][909-G-H; 910-A]
1.10 In these two proceedings, the appellants have not
crossed, as undertrials, a substantial term of the sentence that
may have been ultimately imposed against them if the prosecution
could establish the charges against them. But the fundamental
proposition of law laid down in K.A. Najeeb, that a bail restricting
clause cannot denude the jurisdiction of a Constitutional Court
in testing if continued detention in a given case would breach the
concept of liberty enshrined in Article 21 of the Constitution of
India, would apply in a case where such a bail-restricting clause
is being invoked on the basis of materials with prima facie lowprobative value or quality. Juxtaposing the appellants' case
founded on Articles 14 and 21 of the Constitution of India with
the aforesaid allegations and considering the fact that almost five
years have lapsed since they were taken into custody, the
appellants have made out a case for granting bail. Allegations
against them no doubt are serious, but for that reason alone bail
cannot be denied to them. While dealing with the offences under
Chapters IV and VI of the 1967 Act, the materials available at
this stage cannot justify continued detention of the appellants,
pending final outcome of the case under the others provisions of
the 1860 Code and the 1967 Act. [Paras 42 and 43][910-C-E, GH; 911-A-B]
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Union of India v. K.A. Najeeb (2021) 3 SCC 713;
Angela Harish Sontakke v. State of Maharashtra (2021)
3 SCC 723 - relied on.
Jayendra Saraswathi Swamigal v. State of Tamil Nadu
(2005) 2 SCC 13 : [2005] 1 SCR 160; State v. Jagjit
Singh AIR 1962 SC 253 : [1962] SCR 622; Gurucharan
Singh v. State of (UT of Delhi) (1978) 1 SCC 118 :
[1978] 2 SCR 358 - referred to.
1.11 The impugned judgments are set aside. The appellants
be released on bail in respect of the cases(s) out of which the
present appeals arise, on such terms and conditions the Special
Court may consider fit and proper, if the appellants or any one of
them are not wanted in respect of any other case. The conditions
to be imposed by the Special Court, enumerated. [Paras 45][911C-D]
Romila Thapar and Ors. v. Union of India and Ors.
Writ Petition (Criminal) No. 260/2018; Thwaha Fasal
v. Union of India 2021 SCC OnLine SC 1000; Sagar
Tatyaram Gorkhe and Another v. State of Maharashtra
(2021) 3 SCC 725; Arup Bhuyan v. State of Assam and
Another 2023 SCC OnLine SC 338; Hitendra Vishnu
Thakur and Others v. State of Maharashtra and Others
(1994) 4 SCC 602 : [1994] 1 Suppl. SCR 360; Niranjan
Singh Karam Singh Punjabi, Advocate v. Jitendra
Bhimraj Bijjaya and Others (1990) 4 SCC 76 : [1990]
3 SCR 633; Usmanbhai Dawoodbhai Memon and
Others v. State of Gujarat (1988) 2 SCC 271 : [1988] 3
SCR 225 - referred to.
Case Law Reference
(2021) 3 SCC 713
relied on
Para 6
(2021) 3 SCC 723
relied on
Para 6
(2021) 3 SCC 725
referred to
Para 6
[2019] 5 SCR 1060
referred to
Para 9
[1994] 1 Suppl. SCR 360
referred to
Para 35
[1990] 3 SCR 633
referred to
Para 35
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[1988] 3 SCR 225
referred to
Para 35
[2005] 1 SCR 160
referred to
Para 43
[1962] SCR 622
referred to
Para 43
[1978] 2 SCR 358
referred to
Para 43
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 639 of 2023.
From the Judgment and Order dated 15.10.2019 of the High Court
of Judicature at Bombay in Criminal Bail Application No. 3007 of 2021.
With
Criminal Appeal No. 640 of 2023.
Tushar Mehta, SG, K M Nataraj, ASG, Ms. Rebecca John,
R. Basant, Sr. Advs., Jawahar Raja, Chinmay Kanojia, Archit Krishna,
N. Sai Vinod, Vishnu P, Ms. Varsha Sharma, Anand Dilip Landge,
Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla,
Sourav Singh, Kanu Agarwal, Mrs. Swati Ghildiyal, Ms. Deepabali Dutta,
Sabrish Subramanian, Ms. Sairica S Raju, Arvind Kumar Sharma,
Shrikant Sonkawade, Yug Chaudhry, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ANIRUDDHA BOSE, J.
The appellants before us assail two judgments of the High Court
of Judicature at Bombay rejecting, in substance, their prayers for bail.
Both the applications were filed on 27th October 2018 after the Special
Judge, Pune under the Unlawful Activities (Prevention) Act, 1967 ("1967
Act") had dismissed their bail plea. The decisions of the High Court
were delivered on the same date i.e. 15th October 2019.
2. We shall deal with both the appeals in this judgment as the
detention of the appellants was on the basis of the same First Information
Report ("FIR") and the chargesheet also contains the same Sections in
respect of which offences are alleged to have been committed by them.
These are Sections 121, 121A, 124A, 153A, 505(1)(b), 117, 120B read
with Section 34 of the Indian Penal Code, 1860 ("1860 Code") and
Sections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act. Wherever
there are distinguishing features vis-à-vis the individual appellants in
relation to the nature of evidence against them relied on by the
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Investigating Agency, we shall refer to them separately. In the subjectcase, initially investigation was conducted by the regular law enforcement
agency, being the State police. The Central Government, in exercise of
their power under Section 6(5) read with Section 8 of the National
Investigation Agency Act, 2008 directed the National Investigation Agency
("NIA") to take up investigation of the case by an order passed on 24th
January 2020. The case was re-registered at the NIA Police Station,
Mumbai as RC No.01/2020/NIA/MUM. Before us, the appeals have
been contested by Mr. Nataraj, learned Additional Solicitor General,
appearing for the NIA.
3. The proceedings against the appellants have their origin in an
FIR, bearing CR No.4/2018 dated 8th January 2018 registered with
Vishrambaug Police Station, Pune, Maharashtra. The informant is one
Tushar Ramesh Damgude. The incident which prompted filing of the
FIR was in relation to a programme at Shaniwar Wada, Pune held on
31st December 2017. The organisers for this event- Elgar Parishad, were
activists of Kabir Kala Manch, a cultural organisation. There were various
events in connection with the said programme, which according to the
prosecution, were provocative in nature and had the effect of creating
enmity between caste groups leading to violence and loss of life, as also
state wide agitation. There were books kept at the venue, which,
according to the maker of the FIR were also provocative. There were
incidents of violence, arson, and stone pelting near Bhima-Koregaon
and six members of Kabir Kala Manch and other associates were named
as accused in the FIR. The appellants did not feature in the FIR. The
scope of the investigation was subsequently expanded, as we find in the
judgment giving rise to Criminal Appeal No.639 of 2023 on 17th April
2018 the Pune Police conducted searches at the residences of eight
individuals, i.e. (1) Rona Wilson of Delhi, (2) Surendra Gadling of Nagpur,
(3) Sudhir Dhawale of Mumbai, (4) Harshali Potdar of Mumbai, (5)
Sagar Gorkhe (also referred to as Sagar Gorakhe by the prosecution) of
Pune, (6) Deepak Dhengale of Pune, (7) Ramesh Gaichor of Pune and
(8) Jyoti Jagtap of Pune. The residences of Shoma Sen and Mahesh
Sitaram Raut, who have also been implicated in the same case, were
searched on 6th June 2018. It has been argued by the NIA that during
the searches, electronic devices and documents apart from other materials
were recovered and the seized articles were sent to Forensic Science
Laboratory ("FSL") for analysis. Cloned copies thereof, according to
the prosecution, revealed incriminating materials. The appellants' names
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
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did not also figure in the initial chargesheet dated 15th November 2018,
which implicated ten individuals as accused. Among them were Sudhir
Dhawale, Surendra Gadling, Shoma Sen, Mahesh Raut and Rona Wilson,
who were in detention at that point of time. Rest five accused persons
were absconding at that point of time. We are informed by Mr. Nataraj
that one of the absconding accused, Milind Teltumbde, has since passed
away.
4. Searches were conducted at the residences/workplaces of the
appellants and they were arrested on the same day, i.e. on 28th August
2018. They were initially put under house arrest and subsequently sent
to judicial custody. Case of the NIA is that various letters and other
materials recovered from the arrested co-accused persons including
Surendra Gadling and Rona Wilson showed appellants' involvement with
the Communist Party of India (Maoist). This organisation has been placed
in the First Schedule to the 1967 Act as a terrorist organisation by a
notification dated 22nd June 2009 issued in terms of Section 2(m) of the
1967 Act. Prosecution's case is that the appellants played an active role
in recruitment of and training for cadres of the said organisation and
Arun Ferreira (whom we shall refer to henceforth as AF), being the
appellant in Criminal Appeal No.640 of 2023 also had role in managing
finances of that organisation. The other accused persons who were
detained in the third phase were P. Varavara Rao and Sudha Bharadwaj.
Among them, we are apprised by the learned senior counsel for the
appellants, Ms. Rebecca John appearing for Vernon Gonsalves (VG in
short), being the appellant in Criminal Appeal No.639 of 2023 and Mr.
R. Basant (representing AF) that, P. Varavara Rao has been enlarged
on bail by an order of this Court passed on 10th August 2022. Sudha
Bharadwaj is on "default bail" granted by the Bombay High Court on 1st
September 2021. Petition for special leave to appeal against that order
was rejected by a three-Judge Bench of this Court on 7th December
2021. Gautam Navlakha, as per information made available before this
Court, is under house arrest. Another supplementary chargesheet has
been submitted on 21st February 2019 by the State police implicating the
appellants, along with other co-accused persons for commission of
aforesaid offences under the 1967 Act and the 1860 Code. On 9th October
2020, NIA had filed a further supplementary chargesheet against, interalia, Dr. Anand Teltumbde, Gautam Navlakha, Hany Babu, Sagar Gorkhe,
Ramesh Gaichor, Jyoti Jagtap, Stan Swami (since deceased) and Milind
Teltumbde (since deceased) broadly under the same provisions of the
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1860 Code and the 1967 Act. Barring deceased Milind Teltumbde, all
these individuals had been arrested. Among them, Dr. Anand Teltumbde
has been released on bail by the Bombay High Court and the judgment
to that effect was delivered on 18th November 2022. The petition for
special leave to appeal against that decision has been dismissed by a
coordinate Bench of this Court on 25th November 2022. VG, it transpires
from his pleadings, is a writer, columnist and has been vocal on issues of
human rights, prison rights and reform of the criminal justice system. AF
has described himself as a practising Advocate of the Bombay High
Court as also a cartoonist and a human rights activist.
5. After the arrest of the appellants, a writ petition was filed before
this Court [Writ Petition (Criminal) No. 260/2018- Romila Thapar
and Ors. -vs- Union of India and Ors.]. One of the prayers in this
petition was for direction of immediate release of all activists arrested in
connection with the Bhima Koregaon violence. Direction was also sought
for staying any arrest until the matter was fully investigated and decided
by this Court. That writ petition was dismissed on 28th September 2018
(by a 2:1 majority). The majority view was that it was not a case of
arrest because of expression of mere dissenting views or difference in
political ideology of the named accused, but concerning their links with
the members of the banned organisation. At that stage, the Court did not
go into an exercise of evaluating the materials brought before it. This
finding or observation, however, cannot aid the prosecution in a regular
application for bail, the appeals in respect of which we are adjudicating.
The Court deciding on specific plea of the appellants for bail is required
to independently apply its mind and examine the materials placed before
it for determining the question of granting bail to the individual applicants.
6. As the charges against the appellants include commission of
offences under different Sections of the 1967 Act, including those coming
within Chapters IV and VI thereof, the restriction on grant of bail as
contained in Section 43D (5) of the said Act would apply in their cases.
We shall also refer to the ratio of the judgment of a three-Judge Bench
of this Court in the case of Union of India -vs- K.A. Najeeb [(2021) 3
SCC 713] while examining the appellants' cases in the backdrop of the
aforesaid provision. In this judgment, it has been held that such statutory
restrictions, per se, do not oust the jurisdiction of the Constitutional Courts
to grant bail on grounds of violation of Part III of the Constitution of
India and it would be within the jurisdiction of the Constitutional Courts,
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
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i.e., this Court and the High Courts to relax the rigours of such provisions,
where there is no likelihood of trial being completed within a reasonable
time and the period of incarceration a detenue has already undergone,
covers a substantial part of the prescribed sentences for the offences
with which the latter has been charged. This ratio has been relied upon
by the learned counsel for the appellants. Other authorities cited on this
point are Thwaha Fasal -vs- Union of India [2021 SCC OnLine SC
1000] and Angela Harish Sontakke -vs- State of Maharashtra [(2021)
3 SCC 723]. On general proposition of law on the aspect of grant of bail
due to delay in trial, the case of Sagar Tatyaram Gorkhe and Another
-vs- State of Maharashtra [(2021) 3 SCC 725] has been relied upon.
In course of hearing, we were apprised by the appellants' counsel that
charges against the appellants are yet to be framed.
7. We have referred to the case of Dr. Anand Teltumbde, who
was added as an accused in relation to the same case on 23rd August
2018 and has subsequently enlarged on bail. His name, according to the
prosecution, had surfaced from digital devices and other articles seized
by the police, in the expanded phase of investigation. Dr. Anand Teltumbde
had surrendered on 14th April 2020 after his plea for pre-arrest bail was
rejected. Subsequently, however, he has been released on bail.
8. Arguments have been advanced before us on the question as
to whether mere membership of a banned organisation constitutes an
offence or not. On behalf of the appellants' reliance was placed on the
prevailing view that the same would not be sufficient to constitute an
offence under the 1967 Act or the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (which statute also has similar provisions) unless
it is accompanied with some overt offending act. A three Judge-Bench
of this Court in the case of Arup Bhuyan -vs- State of Assam and
Another [2023 SCC OnLine SC 338] has held that if a person, even
after an organisation is declared as an unlawful association, continues to
be a member thereof, would attract penalty under Section 10 of the
1967 Act.
9. Barring Section 13, all the offences with which the appellants
have been charged with under the 1967 Act fall within Chapters IV and
VI of the said statute. This is apart from the offences under the 1860
Code. Hence, there is a duty of the Court to form an opinion on perusal
of the case diary or the report made under Section 173 of the Code of
Criminal Procedure, 1973 ("1973 Code") that there are reasonable grounds
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for believing that the accusations against such persons are prima facie
true while considering the prayer for bail, to reject prayers for bail of the
appellants. The manner in which the Court shall form such opinion has
been laid down by this Court in the case of National Investigation
Agency -vs- Zahoor Ahmad Shah Watali [(2019) 5 SCC 1]. It has
been held in this judgment:-
"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.