1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Criminal Application No.1502 of 2008 [D.S. Burile Vs. State of Mah.] With Criminal Application No.1612 of 2008 [N.B. Bansod Vs. State of Mah.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. N.S. Khandewale, Adv., for applicant in Criminal Application No. 1502 of 2008. Mr. S.A. Kalbande, Adv., for applicant in Criminal Application No. 1612 of 2008. Mrs. T.D. Khade, APP for respondent in both the applications. ----- CORAM : A.H. JOSHI, J. DATE : 15th July,2008. Common Facts 1. The applicant in Criminal Application No. 1502 of 2008 is Shri Dhanendra Shriram Burile and Applicant in Criminal Application No. 1612 of 2008 is Shri Naresh Babulal Bansod, who are accused nos. 3 and 4 respectively in Crime No. 149 of 2007 of Dhantoli Police Station, 2 Nagpur. 2. The crime is registered under Sections 10, 13, 18 and 20 of the Unlawful Activities [Prevention] Act, 1967, Sections 3 and 25 of the Arms Act, and Section 353 read with Section 34 and Section 120-B of Indian Penal Code. 3. These applications for bail were opposed by filing separate Affidavits-in-Reply in both applications. 4. Thereafter, these applications were heard from time to time. This Court had passed order on 3rd July, 2008, observing that prima facie except complaint, Panchanama of Body Search and Seizure Panchanamas, there was no material on record indicating involvement of the accused, and particulars of the offence under Sections 10, 13, 18 and 19 of the Unlawful Activities [Prevention] Act, 1967, were not disclosed. This Court had also directed that additional incriminating material, if any, be placed on record in the form of affidavit. This Court also gave liberty to the prosecution that if there be any other material and if prosecution wants its secrecy to be maintained, the same may be made available to the Court at the time of hearing. After this order, the separate affidavits dated 9/7th July, 2008 have been filed 3 in both cases and copy of charge-sheet and print-out of material found in Pen Drive found with accused No.2 is tendered. Copy of interview found with Accused No.3 is also tendered, and all this material is being considered. Case of Accused No.3-Dhanendra Shriram Burile 5 According to the applicant – Dhanendra Burile :- [a] He is falsely involved in the crime. [b] He has no connection or nexus with the Naxalites, and in particular accused nos. 1 and 2. [c] He is a Freelance Journalist. [d] He had visited the location where he was arrested, to cover the news, as he covers “crime bit for Marathi Daily Newspaper Deshonnati”. [e] He is also a social worker, has a popular image and is a law-abiding and peace-loving citizen. [f] He alleges entire story to be false, denies any involvement and claims bail. 6. The prayer for bail is opposed by written and oral objection. What is spelt out in the Affidavit-in-Reply and other material forming part of the Charge-Sheet is as referred to hereinafter. 4 7. It is alleged in paras 2 and 3 of Affidavit-in-Reply dated 21st May, 2008 that both the accused nos.3 and 4 had come to Nagpur to meet accused nos. 1 and 2, and have actually contacted accused nos. 1 and 2 at Deekshabhoomi. Thereafter, police personnel went near the accused and disclosed their identity. Soon thereafter, the applicants tried to run away, however, were stopped and arrested. 8. In first affidavit dated 21st March, 2008, it is further stated as follows:- “4. It is submitted that personal search of the accused persons was carried out whereupon the present applicant was found possessing photographs of 2 police constables posted in the Anti Naxal Cell in the Gondia District. He was also found in possession of some objectionable printed material/literature. The Naxalite Murli was found possessing one 9 mm Pistol and two Magazines containing 16 rounds and literature of banned organization. The accused Farera was found possessing one pen drive and other materials.” “5. During the course of investigation, it is revealed that the present applicant was closely connected with the said Naxalite Murli and Farera. It is further submitted that, the photographs on the reverse of which the names and 5 details of the Constables attached to Anti-Naxalite Cell of Gondia District Police were written, indicates that, the present applicant had close association with the accused persons involved in the Naxalite activities. It is submitted that, there is strong prima facie case against the present applicant. It is submitted that arrival of the applicant to meet the said Naxalite Murli and Farera and having possession of photographs of two constables attached to Anti Naxal Cell in Gondia District, are clear indication that the present applicant has close links with other accused persons who are involved in Naxalite activities. It is submitted that, the applicant/accused, when arrested was found in the company of accused persons who were involved in the Naxalite activities.” “6. It is submitted that during the course of investigation, it is revealed that one of the accused persons namely, Murli @ Mahesh @ Ashok Satya Reddy is a dreaded Naxalite and has been working as Divisional Secretary of the Banned Organization in the Gondia-Balaghat-Gadchiroli area and is also a Member of the C.P.I. [Maoist]. It is further submitted that said accused persons namely Murli @ Mahesh is also involved in the commission of number of offences.” [Out of the quoted portion, the material with imputations which pertains to accused no.3, is 6 the underlined portion. Rest is about accused nos. 1 and 2. Sub-paragraphing is done while quoting, for convenience for reference]. 9. Police then filed additional affidavit on 9/7th July, 2008. In this affidavit, what is stated reads as follows:- “2. The chargesheet has been filed and the case is committed to the Court of Sessions. P.S.I. Santosh Sawant has received the secret information regarding present applicant and their involvement in an offence. As per the said information present applicant met the Naxalite i.e. Murli accused No.1 and accused No.2. Thus, the direct involvement of present applicant in helping the Naxalite cannot be ruled out at this stage. The applicant is thus not entitled to be released on bail till the trial is over.” [quoted from page 23 of the paper book of Criminal Application No. 1612 of 2008. While quoting, the sentence is underlined for providing emphasis and sub-paras are made while quoting, for convenience]. 10. It is seen from charge-sheet which is tendered for perusal that search of the accused has revealed following material on the person of present applicant – Accused No.3, viz.:- [1] One Motorola handset having SIM Card 7 with Cell Phone No. 9423606836. [2] One Telephone Pocket Diary having initial number in English “120”. [3] Two Journey tickets dated 8th May, 2007 from Gondia to Nagpur having denomination of Rs.84/-. [4] Three books titled “Sarkari Damnacha Ek Upakram” written by Suresh Dwadashiwar. [5] One small pocket diary having sky blue colour containing Phone No. 9720159841 of Satish Kusram and addresses of others. [6] Identity Card of Employment Exchange issued in the name of Ku. Vandana B. Dongre. [7] One book titled “Adiwasi Aurat Ke Sangharsha Ki Mahakatha”. [8] Two photographs of Police Constables, namely Head Constable Bhaladhare, LIB, Ganeshnagar, Gondia, and Head Constable Ashwini Upadhaya, Naxalite Division, Balaghat. [9] Cash of Rs. 211/-. [10] One wrist watch of steel case. Case of Applicant No.2-Naresh B. Bansod 11. According to this applicant, he is:- [a] A social worker, has keen interest in social work and is a member of Andhshraddha Nirmulan Samiti. [b] He has been arrested falsely involving just because he is friendly with Dhanendra Burile, who 8 is also a resident of Gondia. 12. In so far as involvement of this applicant – Naresh Bansod is concerned, while opposing his application for bail, in the affidavits-in-reply dated 21st May, 2008, the prosecution has alleged that this applicant was accompanying Dhanendra Shriram Burile, Accused No.3, from Gondia to the place of arrest, and he had met accused nos. 1 and 2, and that it was not a sheer co-incidence. The averment in this regard is contained in para 6 of the affidavit dated 21st May, 2008. 13. In second affidavit dated 9/7th July, 2008, the averments read as follows:- “2. The chargesheet has been filed and the case is committed to the Court of Sessions. P.S.I. Santosh Sawant has received the secret information regarding present applicant and their involvement in an offence. As per the said information present applicant met the Naxalite i.e. Murli accused No.1 and accused No.2. Thus, the direct involvement of present applicant in helping the Naxalite cannot be ruled out at this stage. The applicant is thus not entitled to be released on bail till the trial is over.” “3. .....Similarly, the pamphlet seized accused No.4 Naresh Bansod containing 4 pages which was in Hindi “Arundhati Roy ka sona Chandhari Dwara Liya Gaya Sakshatkar” was found in Pen Drive 9 seized from accused No.2 i.e., Arun Parera. In addition to it there is other objectionable matter in Pen Drive. ....” [quoted from page 23 of the paper book of Criminal Application No. 1612 of 2008. While quoting, sub-paragraphing and underlining is done for providing emphasis]. 14. Learned APP has then brought to the notice of this Court the material found in personal search of this applicant, which is described as follows:- [1] One rose-coloured book whereon it is written that in the most affluent and rich State, suicides and famine have played havoc etc. [2] One white-coloured book giving a call to the followers of Fuley & Ambedkar and toiling masses to launch a new movement to end casteism. [3] Cash of Rs. 145-00. [4] One wrist watch of white dial. Respective Submissions 15. Applicants have submitted that there is no incriminating material with prosecution against them and they need to be released at once. 16. According to learned APP opposing the bail, the accused are associated with hard core 10 Naxalites and their release on bail will adversely affect the further investigations. 17. Learned APP urged that the illegal activities are properly demonstrated and it was a fit case for rejection of application of bail. 18. Learned APP also made oral submissions that even a letter of threat is received by All India Radio from one Comrade Anand, describing himself as a Member of Divisional Secretariat Committee, North Gadchiroli-Gondia Division, informing that there was a risk to the life of four accused – “Comrades” in a fake encounter, and to avoid this, they should be released unconditionally. Observations & Reasons 19. Now, therefore, this Court has to proceed on the basis of material, i.e. in the form of Affidavits-in-Reply, copy of charge- sheet, copy of print out of pen drive, copy of objectionable material in the form of four-page text of interview of Arundhati Roy forming part thereof. 20. This Court has perused entire material. 21. The statements, which are on record, are of the police personnel who have done 11 surveillance and followed the accused persons from Railway Station on the basis of secret information and witnessed that these accused persons have met accused nos. 1 and 2. 22. Apart from the fact of their having 'met' the accused nos. 1 and 2, no other specific imputation is seen contained in the complaint and evidence, thereby involving them in any overt act constituting offence under Sections charged of. 23. Even if the versions contained in the affidavits opposing the bail applications are to be accepted as true and factual, the imputations do not constitute and even do not describe commission of offence under Sections 10, 13, 18 and 20 of the Unlawful Activities [Prevention] Act, 1967 or other offences alleged against them. 24. It is seen that the charge-sheet does not comprise of statements of witnesses as to exact involvement of the accused persons describing involvement to correspond to the ingredients of Sections 10, 13, 18 and 20 of the Unlawful Activities [Prevention] Act, 1967, and other offence alleged against the applicants. 25. This Court finds that on reading of the charge-sheet, nothing is disclosed as to what are the imputations of acts done by these 12 applicants under Sections 10, 13, 18 & 20 of the Unlawful Activities [Prevention] Act, and other offences. Any of the ingredients of these Sections are not described as committed by these persons. 26. All that is asserted is that except that these accused had a meeting with accused nos. 1 and 2, and an inference that they are associated with the accused nos. 1 and 2, there are no other imputations. 27. In the result, the applicants are entitled to be released on bail. Applicants are released on bail on following conditions:- [a] Each amongst them shall execute a Personal Bond and furnish a Solvent Surety in a sum of Rs.25,000-00 [rupees twenty-five thousand only]. [b] They shall attend Police Station, Gondia every Monday and Thursday between 3-00 and 5-00 p.m., [c] They shall not leave Gondia without leaving with the police their address, their movement plan, contact phone/cellular number, during the period of journey and expected date of return. [d] Whenever they are required to come to Nagpur for attending trial, they shall report their arrival place of stay and expected date and time of departure, to Dhantoli Police Station, Nagpur. 13 28. At this stage, learned APP Mrs. Khade prays for deferring the effect and implementation of this order, for enabling the State to take recourse to challenge this order before Hon'ble Supreme Court. 29. This order shall remain in abeyance till 31st August, 2008. 30. Certified copy, if applied, is expedited. Steno copy of this order be supplied to learned APP free of cost and learned Advocates for Applicants as per rules. Judge |Hedau|