Bail – If Case Diary And Other Materials Disclose Prima Facie Case Then Bar Under Proviso To Section 43D(5) Of UAPA Will Be Attracted: Chhattisgarh HC

It is imperative to mention right at the outset that in a latest ruling, the Chhattisgarh High Court has as recently as on December 20, 2019 in Abhay Nayak v. State of Chhattisgarh in CRA No. 1213 of 2019 held quite explicitly that on reading the case diary or any other material placed on record, if a prima facie case is made out against the accused, then the proviso to Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 will get attracted and the accused shall not be enlarged on bail. This is primarily because doing anything which goes against the supreme national interests and foments terrorism in any manner cannot be lightly dismissed. It has to be taken most seriously and this alone explains why in such cases bail is not granted!

To start with, this notable judgment authored by Justice Prashant Kumar Mishra for himself and Justice Gautam Chourdiya sets the ball rolling by first and foremost observing in para 1 that, “These three connected appeals under Section 21 (4) of the National Investigation Agency Act, 2008 (for short ‘the NIA Act’) would call in question three separate orders passed by the trial Court (NIA Court) rejecting the appellant’s prayer for his release on bail under Section 439 of the Cr.P.C.”

To recapitulate, it is then pointed out in para 3 that, “The prosecution case, in brief, is that on 28-1-2017 an information was received by the concerned police that on the road between village Bastanar-Dankapara towards village Kandoli a banner has been put on along with pamphlets containing anti national contents. On receipt of the information the team of a Kodenar police led by the Station House Officer reached to the place and found a banner and anti national contents and few naxal pamphlets written in English propagating naxal movement. When the near by places were searched the police team found an explosive like material and few wires, which were further dug out with proper security. On this search a 7 kg Tiffin Bomb with 20 meters long wire and pamphlets were found. The pamphlets were having signature of ‘Vikalp’ as Spokesperson, Dandakaranya Special Zonal Committee CPI (Maoist) and Abhya as Spokesperson, Central Committee CPI (Maoist). This organisation has been banned by the Government of Chhattisgarh. Dehati Nalsi was recorded and on return the subject crime was registered at Police Station Kodenar primarily under Section 120-B of the IPC; Sections 4 & 5 of the Explosive Substances Act, 1908; and Sections 38 & 39 (2) of the Unlawful Activities (Prevention) Act.”

To be sure, para 4 then states that, “During further investigation, it came to the knowledge that the Police Station Darbha has also registered Cr. No.7/2017 and seized pamphlets and literatures containing propagation of naxal movement. The Investigating Officer found email ID and mobile number written over the seized articles, which were further investigated on which one person named ‘Abhay Nayak, R/o Bangalore’ was suspected as a person who has committed the offence.”

Going forward, it is then elaborated upon in para 5 that, “When the police team went to Bangalore (Karnataka) it got information that the appellant is not available in the country, but is travelling abroad with unknown location. Thereafter, Bastar Police issued Look Out Circular. The Immigration Bureau, New Delhi, informed the Superintendent of Police, Bastar that the appellant has been taken into custody. He was enquired by Bastar Police at Delhi and thereafter, upon his consent, Laptop, Mobile, Hard Disk, Pen Drive, etc. were recovered and brought to Bastar for further investigation. In his confessional statement the appellant admitted that for propagating naxal activities he acts as a Blogger and Spokesman via its Blog and Social Media sites i.e. Twitter, Google+, Yahoo, etc. to increase urban naxal cadre and influence urban youths. The appellant was arrested on 1-6-2018 and his residence was searched. The appellant was thereafter searched for two other offences.”

After hearing both the sides, it is then observed in para 10 that, “A perusal of the material available in the case diaries would reveal that the hand written diary seized from the residence of the appellant containing objectionable and anti national contents about the Indian Police and Para Military Force was sent to the State Examiner of Questioned Document, Government of Chhattisgarh (Hand Writing Expert) on 23-6-2018. The Hand Writing Expert’s report received by the police on 30-6-2018 mentions that all the writings have been written by one and the same person. Diary also reveals that when the appellant’s blog was data analysed by the Cyber Police Team of Bastar, the appellant was found to have officially created ‘CPI Maoist Naxalite’ blog and continued blogging on the site. Thereafter, he wrote his blogs as ‘abhay naxal revolution’, to hide his overtly and expressly Maoist connection. The appellant was also found to use fake ID number, proxy server and TOR to run his blog, which he did to hide his identity from the Government surveillance. The blog posts and proxies have been annexed with the return filed by the State.”

What’s more, it is then also pointed out in para 11 that, “Record also contains material that on thorough examination of appellant’s e-mail ID, after seeking permission from the Special Court, Jagdalpur, various folders with naxal contents and anti national contents including press release, propaganda and audio video attachments having anti national and provocative contents were found. Mail from superior naxal cadres like Vikalp and Gudsa Usendi and connection with RDF (Revolutionary Democratic Front) and other anti national organization was also found. The scrutiny also revealed that the appellant is working with Rona Wilson, G.N. Saibaba, etc.”

Not stopping here, it is then more damningly also pointed out in para 12 that, “The data analysis also found that the appellant tried to contact other naxal sympathizers including foreigners and journalists for arranging interview with superior naxal cadres either directly or through virtual media. He has been visiting foreign countries for last one year to promote the naxal ideology and improve naxal movement in India. The investigating police have also found that appellant’s blog post ‘naxalrevolution.blogpost.com’ is a mirror website of ‘naxalrevolution-lal salam’, which is totally a Maoist social networking platform.”

More significantly, the Chhattisgarh High Court Bench comprising of Justice Prashant Kumar Mishra and Justice Gautam Chourdiya then rightly holds that, “The law is, thus settled that while considering the prayer for grant of bail the material collected by the prosecution thus far need not be discarded nor its admissibility or otherwise is to be considered at this stage. If the case diary and other materials disclosed that the accusation against the accused is, prima facie, true, the bar under the proviso to sub-section (5) of Section 43D of the Unlawful Activities (Prevention) Act, 1967 would be attracted.”

Moving on, it is then observed in para 16 that, “In the case at hand, there is material collected by the Investigating Officer which furnishes reasonable ground for believing that the accusation against the appellant is, prima facie, true. Thus, no case for inferring with the trial Court’s order is made out.”

Finally, this commendable and laudable judgment concludes in para 17 wherein it is observed that, “As a sequel, all the criminal appeals, sands substratum, are liable to be and are hereby dismissed.” Very rightly so!

No doubt, it is a very well written judgment and a well concluded judgment. It rightly placed reliance on National Investigation Agency v Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, wherein the Apex Court had observed that, “The totality of the material gathered by the Investigating Agency and presented along with the report and including the case diary, is required to be reckoned and not by analyzing individual pieces of evidence or circumstance.” Support to Naxal movement which is a violent and committed to  terrorism in order to overthrow democracy in India cannot be justified under any circumstances! The UAPA Act rightly ensures that those accused of promoting Naxal ideology are not granted bail! This is what the Chhattisgarh High Court too has ensured in this latest, landmark and extremely laudable case also! Very rightly so! Naxal violence brooks no tolerance and there has to be no compromise on this at any cost and under no circumstances!

Sanjeev Sirohi

Bail not Jail

Yes this is how the principle is enshrined in the constitution of India and Article 21 of the constitution of India enshrines this principle as “Right to Life”. But can we say that this principle is being followed in the courts of law and the accused persons who are languishing under trails in jails on the basis of false allegations and getting the most cherished right of the constitution of India. I feel the answer is NO, because the courts have without going into the correctness of the allegations of case, rather merely dismissing the same by just saying that it is matter of trail and at this stage the same cannot be taken into consideration or just that since the charge sheet has not been filed and therefore it is not the right stage to apply for bail.
Now if we critically analyze the bend of mind of a Judge who is dismissing the bail applications without seeing the gravity of the same if the same person gets acquitted or there is a lack of evidence at the trail stage. The Judge seems to be following the course of action which is easy and not taking any blame on himself. But still the question comes that are these accused persons getting the most cherished right and if yes then how many.
Perhaps the hard reality is the accused persons cannot except a Bail from lower court in any eventuality and they will have to come to Higher Courts to seek the bail and now the interesting question is when the Higher Courts are giving the Bail on same allegations and same grounds, then what is that stopping them to get the bail at the lower courts. The answer is clear that lower courts lack the gut feeling to take the responsibility to grant the bail despite having the same “Judicial Discretion” which the higher courts have.
Not commenting on any particular case or judge of the lower courts, rather this has become the fashion and we all face this difficulty for the clients. But the factors which the court must keep in mind before granting the bail applications as held by Hon’ble Supreme Court in “Sanjay Chandra vs CBI” speaking through G.S. Singhvi, H.L. Dattu wherein the Hon’ble Supreme Court has given the following factors which must be kept in mind while granting bail and the same factors must be kept in mind by any courts be it lower or higher courts. The factors to be considered as follows:
1. While granting the bail, the court has to keep in mind:-
a. The nature of accusations, the nature of the evidence in support thereof,
b. The severity of the punishment which conviction will entail,
c. The character, behaviour, means and standing of the accused,
d. Circumstances which are peculiar to the accused,
e. Reasonable possibility of securing the presence of the accused at the trial,
f. Reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations.
g. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge.
It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”
2. Custody is not punitive in nature, but preventive, and must be opted only when the charges are serious and prima facie and not otherwise.

3. Punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

4. In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined:
“The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court.”

5. To enquire into the antecedents of a man who is applying for bail to find whether he has a bad record–particularly a record which suggests that he is likely to commit serious offences while on bail.

6. In Moti Ram v. State of M.P., (1978) 4 SCC 47, this Court, while discussing pre-trial detention, held:
“The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.”

7. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police.

8. The time to be taken in trial and they should not be subject to indefinite custody.

Format of Application For Regular Bail

Format of Application For Regular Bail
Format of Application For Regular Bail

IN THE COURT OF __________, HON’BLE SESSIONS
Judge ________________.

___________________
Son of ________________
R/o _________________
…….……APPLICANT/PETITIONER.

VERSUS

State of _________.
……….RESPONDENT

IN THE MATTER OF:-

FIR NO. _____ DATED __________ UNDER SECTION _____________ IPC, P.S.- ____________________.

FIRST APPLILCATION FOR REGULAR BAIL

MOST RESPECTFULLY SHOWETH:-
1- That the petitioner belongs to a respectable family and he has clean antecedents.

2- That the petitioner has been framed up and falsely implicated in the above noted case by the complainant on extraneous grounds and he is in custody since _____________.

3- That the police does not require further custody of the petitioner for the purpose of investigation in the case and the petitioner has therefore been remanded to judicial custody.

4- That the petitioner has been framed up in the case because _____________ daughter of Sh. _________________ complainant was deeply in love with the petitioner and her marriage was solemnized with Sh._____________ son ofSh. ________________,R/o House No.___________________ against her wishes on __________. Even after marriage _____________ wanted the petitioner to continue friendly relationship with her due to attachment but the petitioner always advised her that since she has been married to another person, she should try to forget her past relationship with the petitioner.

5- That the investigation of the case and thereafter the trial shall take a considerable time and the petitioner shall suffer unbearable hardship of imprisonment if he remains confined to Jail during this period.

6- That the petitioner is ready and willing to furnish bail bonds to the satisfaction of this Hon’ble court for his being released on bail.

7- That the witnesses of the prosecution are relatives of the complainant and they can not be influenced by the petitioner. The petitioner gives an undertaking to the Hon’ble court, that if he is released on bail, he shall not temper with the evidence or influence the witnesses of the prosecution and he shall abide by any condition imposed by the Hon’ble court for releasing him on bail.

It is, therefore, prayed that the petitioner/applicant may kindly be released on bail.

Dated: _________ Applicant/petitioner.

Through counsel:
__________

___________, Advocates

CWG scam: Hearing on Jayachandran’s bail plea Wednesday

The Delhi High Court Monday adjourned till Jan 19 the hearing on the bail plea of Commonwealth Games Organising Committee (OC) official M. Jayachandran in the Queen’s Baton Relay scam.

Justice Hima Kohli adjourned the matter after the argument was concluded by defence counsel R.K. Handoo.

Jayachandran, joint director (finance) in the OC, was arrested Nov 21, 2010 for making questionable payments to Indian-owned London-based private firm AM Car and Van Hire Limited during the Queen’s Baton Relay function in London.

The high court Friday granted bail to another CWG official T.S. Darbari as the Central Bureau of Investigation failed to file a charge sheet against him within the stipulated 60 days of his arrest.