Crl.A. 29/2011 BEFORE THE HON’BLE MR JUSTICE I.A. ANSARI JUDGMENT AND ORDER (Ansari, J) 1. In a case registered by the police against an accused on the basis of Fi rst Information Report, whether bail can be granted to the accused in respect of the case, as a whole, or offence-wise ? 2. During the course of investigation of a case, or while filing the charge -sheet, when a penal Section is added to the offence(s), whereunder the case alr eady stands registered, whether the accused is required to apply afresh for bein g allowed to go on bail in respect of the newly added penal Section and, if so, whether the application for such a bail would mean that the accused has surrende red himself to the jurisdiction of the Court, wherein he has applied for bail, a nd may or may not, therefore, be allowed to go on bail if the added offence (pen al Section) is a ’non-bailable’ one and the facts and circumstances of the case do not warrant release of the accused on bail in case of such an offence ? 3. Whether cancellation of earlier bail is necessary if the Court finds tha t it lacks jurisdiction to grant bail in respect of the subsequently added penal Section ? 4. In the event of addition of a penal Section to a case, as indicated here inabove, is it the duty of the Investigating Officer to inform the Court, which had granted bail to the accused, or on whose order, the accused stood released on bail, as regards the addition of the penal Section, providing him thereby wit h an opportunity to apply for bail in respect of the added penal Section, or, wh ether the police can arrest such an accused on the basis of the newly added pena l Section without informing the Court, which had granted bail to the accused, or without giving any opportunity to the accused, who was already on bail, to appl y to the Court for bail in respect of the penal Section, which stands subsequent ly added in such a case, or whether the accused needs to be informed, in such a case, as regards the addition of the penal Section, so that the accused can, in respect of the added penal Section, apply for bail ? 5. Whether the nature of the newly added penal Section shall have any beari ng on the Court’s decision to grant or not to grant bail and how the Court shall decide, in a case of such a nature, the question of granting or not granting of bail ? 6. What are the parameters for determination of the question as to whether the added penal Section is graver than the ones in respect whereof, the accused already stands granted bail ? 7. What are, generally, the parameters of power of a Court, while granting bail in a ’non-bailable’ offence ? 8. Whether the cancellation of bail is permissible in law only when the acc used violates the conditions of bail, or whether bail is also possible to be can celled, when the Magistrate, who has granted bail, or the Court, which has allow ed the accused to go on bail, finds that he or it lacked jurisdiction to grant b ail ? 9. How Section 167(2) CrPC differs from the provisions embodied in Section 309(2) CrPC ? These are some of the prominent questions, which have arisen, in the present app eal, for determination. 2. This appeal, under Section 21 of the National Investigation Agency Act, 2008, (for short, ’the NIA Act’), is preferred against the orders, dated 20.02.2 010 and 03.01.2011, passed by the learned Special Judge, National Investigation Agency (in short, ’the NIA’) in NIA Case No.02/2009, under Sections 120(B)/121/1 21A of the Indian Penal Code, 1860, read with added Sections 16, 17, 18, 19 and 20 of the Unlawful Activities (Prevention) Act, 1967, (for short, ’the UA(P) Act ), rejecting the prayer of the appellant to allow him to remain on previous bail and directing that he be taken into custody forthwith. 3. The material facts and various stages, which have led to the present app eal, may, in brief, be set out as under: (i) One Ratneswar Das, Sub-Inspector of Police, filed an Ejahar before the O fficer-in-Charge, Diyungmukh Police Station, North Cachar Hills, stating, inter alia, that an information was received from high-level sources that some persons /workers of the North Cachar Hills Autonomous Council (popularly known as NC Hil ls Autonomous Council) were going to deliver huge amount of cash of DHD(J), a te rrorist gang, somewhere between Haflong and Diyungmukh, for the purpose of procu ring arms and ammunitions and for promoting organisational activities with a vie w to wage war against the State and that accordingly, he along with available fo rces, under the guidance of the Deputy Superintendent of Police (Headquarters), Haflong, started checking of vehicles coming from the direction of Haflong and p roceeding towards Diyungmukh. It had been further stated, in the Ejahar, that o n 10.02.2009, at about 3.30 PM, during checking of vehicle No. AS-08-5133 (a Mah indra Scorpio vehicle), at Thaijowari, wherein Golon Daulagupu, a member of NC Hills Autonomous Council, and Sri Jibangshu Paul were travelling, recovered cash amount of Rs.32,11,000/- from the possession of Jibangshu Paul, who failed to g ive any satisfactory explanation with regard to carrying of such huge amount of cash with them indicating thereby that the cash, which had been found in the pos session of Jibangshu Paul, was being carried to be handed over to the DHD(J) ext remists and, as such, they had committed the offence of criminal conspiracy to w age war against the State with the help of DHD(J) extremists and the cash was ac cordingly seized in presence of witnesses. Based on this Ejahar and treating the same as First Information Report, Diyungmukh Police Station Case No.03/2009, un der Sections 120(B)/121/121A IPC, was registered against Golon Daulagupu, MAC, N C Hills Autonomous Council, and Jibangshu Paul (i.e., the present accused-appell ant) and both the occupants of the said car including Jibangshu Paul were arrest ed. (ii) Taking note of the fact that the accused-appellant had been in custody s ince 10.02.2009 and about 15 days had already passed and taking note also of the fact that the co-accused had already been granted bail, the appellant was ready to cooperate with the police during investigation and that there was no chance of his absconding, the learned District Magistrate, NC Hills, acting as a Magist rate, by order, dated 26.02.2009, allowed the accused-appellant to go on bail o f Rs.50,000/- with one surety of the like amount. (iii) On 01.06.2009, the Central Government, in exercise of its power under Se ction 6(5) read with Section 8 of the NIA Act, directed the NIA to take up inves tigation of the case. Diyungmukh Police Station Case No.03/2009 aforementioned, then, came to be registered by the NIA as FIR No. 02 of 2009 and the investigati on of the case was, thereafter, conducted by the NIA. Thus, the Assam Police had conducted the investigation till 05.06.2009 and, during this period of investig ation, apart from Golon Daulagupu and Jibangshu Paul, two more persons, amongst others, namely, Biraj Chakraborty and Karuna Saikia were also arrested. (iv) During the course of investigation, which the NIA had conducted, 13 more persons were arraigned, as accused, under Sections 16, 17, 18, 19 and 20 of the Unlawful Activities Prevention Act, 1967, (in short, ’UA (P) Act, 1967’) and S ection 25(i)(d) of the Arms Act, 1959. On completion of investigation, the NIA s ubmitted charge-sheet, on 18/19.10.2010, under Sections 120B, 121, 121-A IPC and under Sections 16, 17, 18, 19 and 20 of the UA (P) Act, 1967 and Section 25(1)( d) Arms Act, 1959. Thus, Section 16, 17, 18, 19 of the UA(P) Act, 1967, read wi th Section 25(1)(d) of the Arms Act, 1959, were the added Sections in the charge -sheet. (v) Based on this charge-sheet, Spl/NIA Case No.02/2009 was registered in th e Court of the Special Judge, NIA, Assam, Guwahati. (vi) After receiving notices, some of the accused persons, including the pres ent appellant, appeared in the Court of learned Special Judge and they filed pet itions to allow them to remain on previous bail. These petitions were admitted f or hearing. (vii) On 03.11.2010, an application was filed by the NIA, in the Court of lear ned Special Judge, NIA, stating to the effect, inter alia, that the accused pers ons, including the present appellant, had not approached any Court for grant of bail in respect of offences under Sections 16, 17, 18, 19 and 20 of the UA(P) Ac t, 1967, which were added on 20.02.2010, and, therefore, they be taken into judi cial custody till such time the accused persons (including the present appellant ) furnish appropriate bail order in respect of all the penal sections, which the y stood charged with. (viii) A written objection to the said application, dated 03.11.2010, was filed by the present appellant. In the said written objection, it was contended that after appearance, he had been granted the privilege to remain on his previous ba il by the Court of the learned Special Judge. It was further stated therein that his name did not figure in the list of 13 persons in respect of whom Sections 1 6, 17, 18, 19 and 20 of the UA(P) Act and Section 25(i) (d) of the Arms Act, 195 9, were added. During the period of investigation, new penal Sections were added on 20-12-2010, but till the charge-sheet was filed on 18-10-2010, the investiga ting agency had never sought for cancellation of his (i.e., the appellant’s) bai l. The application, therefore, filed by the NIA was, according to the present ap pellant, wholly misconceived and the appellant cannot be taken into custody unle ss the bail, granted to him, earlier by the District Magistrate, NC Hills, on 26 -02-2009, was cancelled and, apparently, there was no ground for cancellation of bail of the appellant. (ix) On 20.12.2010, when the case came up for order, the appellant was absent , but filed Petition No.2799/2010 showing the cause for his not being present in the Court. The cause shown was that the mother of the appellant had been suffer ing from ailment. Rejecting the said prayer, non-bailable Warrant of Arrest was directed to be issued by order, dated 20.12.2010, passed by the learned Special Court. The appellant’s petition seeking that he be allowed to remain on previous bail, already granted by the learned District Magistrate, NC Hills, Haflong, by order, dated 26.02.2009, was also rejected. (x) The argument, advanced on behalf of the NIA, in the Court of the learned Special Judge, was that the appellant had not been granted bail under the newly added Sections, namely, Sections 16,17,18,19 and 20 of the UA(P) Act, 1967, and that bail had been granted to the appellant only in respect of the offences und er Sections 120(B)/121/121A IPC and that such grant of bail cannot be availed of for the newly inserted serious offences. It was, however, contended, on behalf of the appellant, in the learned Special Court, that the learned Special Court w as not authorised to exercise power to remand the appellant to custody under Sec tion 167(2) Cr.P.C., because charge-sheet had already been filed and the situati on, wherein an accused can be remanded, under Section 309(2) Cr.P.C., to custody was not available in the present case. (xi) On considering the materials on record and after hearing the learned co unsel for the parties, the learned Special Judge, as has been noted earlier, dir ected that the accused persons, including the present appellant, who had not bee n granted bail by any Court for the offences under Sections 16, 17, 18, 19 and 2 0 of the UA(P) Act, be taken into custody with further observation that they may apply, in accordance with law, for fresh bail for the offences under Sections 16, 17, 18, 19 and 20 of the UA(P) Act. 4. During the course of discussion, in his order, dated 20.12.2010, while r ejecting bail, the learned Special Judge opined that considerations, which had p revailed before the Court at the earlier point of time, were in respect of less heinous offences and those considerations would be different from the considerat ions, which would weigh upon the Court at the time of consideration of enlarging an accused, on bail, in connection with more serious offences, such as, offence s under Sections 16, 17, 18, 19 and 20 of the UA(P) Act, 1967. 5. We have heard Mr. B.K. Mahajan, learned counsel, for the appellant, and Mr. D.K. Das, learned Standing Counsel, NIA. Having regard to the questions that have arisen for consideration in this appeal, this Court appointed Mr. N. Dutta , learned Senior counsel, as Amicus Curiae, and we have had the benefit of heari ng him too. PRINCIPLES GOVERNING, ORDINARILY, GRANTING OF BAIL 6. Generally, while considering an application for bail in a non-bailable c ase, the factors, to be considered, are:(i) whether there is any prima facie or reasonable ground, as the case may be, to believe that the accused had committed the offence, (ii) the nature and gravity of the offence, (iii) severity of the punishment if the accused happens to be convicted, (iv) chances of the accused a bsconding or fleeing away if given the opportunity of bail, (v) the character, b ehaviour, antecedents, means, position and standing of the accused in the societ y, (vi) likelihood of the offence being repeated, (vii) reasonable apprehension of the witnesses being tampered with or the investigation being interfered with. While a vague allegation that the accused may tamper with the evidence or witne sses would not be a ground to refuse bail, the fact remains that when the accuse d is of such a character that his mere presence, at large, would intimidate the witnesses or if there is material to show that there is likelihood of the accuse d using his liberty to subvert justice or tamper with the evidence, then, bail w ould be refused. 7. Points out the Supreme Court, in State of Maharashtra Vs. Anand Chintama n Dighe, reported in (1990) 1 SCC 397, that there are no hard and fast rules reg arding grant or refusal of bail. Each case has to be considered on its own meri ts. The matter always calls for judicious exercise of discretion by the court. W here an offence is of a serious nature, the court has to decide the question of grant of bail in the light of such considerations as the nature and seriousness of the offence, character of the evidence, circumstances, which are peculiar to the accused, a reasonable possibility of presence of the accused not being secur e at the trial and the reasonable apprehension of witness being tampered with, t he larger interest of the public or such similar other considerations. (See also State Vs. Capt. Jagjit Singh, reported in (1962) 3 SCR 622). 8. In the State of UP (through CBI) Vs. Amarmani Tripathi, reported in (200 5) 8 SCC 21, the Court has summed up the factors, which are, generally, required to be taken into account, while considering an application seeking bail. The re levant observations, made in this regard, read as under: 18. It is well settled that the matters to be considered in an application f or bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the char ge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour , means, position and standing of the accused; (vi) likelihood of the offence be ing repeated; (vii) reasonable apprehension of the witnesses being tampered with ; and (viii) danger, of course, of justice being thwarted by grant of bail(see P rahlad Singh Bhati v. NCT, Delhi : (2001) 4 SCC 280 : 2001 SCC(Cri) 674 and Gurc haran Singh v. State(Delhi Admn.) : (1978) 1 SCC 118 : 1978 SCC(Cri) 41 : AIR 19 78 SC 179. While a vague allegation that the accused may tamper with the evidenc e or witnesses may not be a ground to refuse bail, if the accused is of such cha racter that his mere presence at large would intimidate the witnesses or if ther e is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan : (2004) 7 SCC 528 : 2004 SCC(Cri) 1977(SCC pp. 535-36, para 1 1) 11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examinat ion of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would su ffer from no-application of mind. It is also necessary for the court granting ba il to consider among other circumstances, the following factors also before gran ting bail; they are: (a) The nature of accusation and the severity of punishment in case of convi ction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge.(See Ram Govind Upadhyay v. Sudarshan Singh : (2002) 3 SCC 598 : 2002 SCC (Cri) 688 and P uran vs. Rambilas : (2001) 6 SCC 338 : 2001 SCC(Cri) 1124. (Emphasis is supplied) REASONS FOR GRANTING BAIL : IMPERATIVES AND LIMITATIONS 9. It needs to be borne in mind that, while granting bail, though a detaile d examination of the evidence and elaborate documentation of the merits of a giv en case is not to be undertaken, the Court owes a duty to assign reasons for pri ma facie concluding as to why bail was being granted. So lays down the Supreme C ourt, in Puran Vs. Rambilas, reported in (2001) 6 SCC 338, in the following word s: 8. He submitted that in view of these observations the learned Additional Sessi ons Judge did not give reasons whilst granting bail. He submitted that in these circumstances the Additional Sessions Judge cannot be faulted. He submitted that the High Court could not cancel bail on this ground. We see no substance in thi s contention. Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate doc umentation of the merits of the case has not to be undertaken. What the Addition al Sessions Judge had done in the order, dated 11-9-2000, was to discuss the mer its and demerits of the evidence. That was what was deprecated. That did not mea n that whilst granting bail, some reasons for prima facie concluding why bail wa s being granted did not have to be indicated. 10. The requirement of the law to assign prima facie reasons for granting ba il has been insisted upon in Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav and another, reported in (2004) 7 SCC 528, too, wherein the Court observe d, referring to Puran’s case (supra), thus: 18. We agree that a conclusive finding in regard to the points urged by both th e sides is not expected of the court considering a bail application. Still one s hould not forget, as observed by this Court in the case Puran v. Rambilas: (SCC p. 344, para 8) Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. & That did not mean that whils t granting bail some reasons for prima facie concluding why bail was being grant ed did not have to be indicated. We respectfully agree with the above dictum of this Court. We also feel that suc h expression of prima facie reasons for granting bail is a requirement of law in cases where such orders on bail application are appealable, more so because of the fact that the appellate court has every right to know the basis for granting the bail. 11. Coupled with the above, the Supreme Court, in Kalyan Chandra Sarkar (sup ra), has held that the Court shall exercise its discretion to grant bail in a ju dicious manner and not as a matter of course and though, on the subject of grant ing of bail, examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate, in such orders, t he reasons for prima facie concluding as to why bail was being granted, particul arly, when the accused is charged with having committed a serious offence, becau se the appellate Court has every right to know the reasons as to why bail has be en granted. Any order, devoid of such reasons, would suffer from non-application of mind. This apart, reiterated the Supreme Court, in Kalyan Chandra Sarkar (su pra), that the Court shall consider, among other circumstances, the following fa ctors too before granting bail, namely, (a) the nature of accusation and the sev erity of punishment in case of conviction and the nature of supporting evidence, (b) reasonable apprehension of tampering with the witness or apprehension of th reat to the complainant and (c) prima facie satisfaction of the court in support of the charge. 12. Cautioning the courts not to discuss, while considering the question of bail, too minutely, the merit of the materials available so as to avoid causing of prejudice to the parties concerned, the Supreme Court, in Vaman Narain Ghiya v. State of Rajasthan,(2009) 2 SCC 281, held as under: 11. While considering an application for bail, detailed discussion of the evide nce and elaborate documentation of the merits is to be avoided. This requirement stems from the desirability that no party should have the impression that his c ase has been pre-judged. Existence of a prima facie case is only to be considere d. Elaborate analysis or exhaustive exploration of the merits is not required. ( See Niranjan Singh v. Prabhakar Rajaram Kharote.) Where the offence is of seriou s nature, the question of grant of bail has to be decided keeping in view the na ture and seriousness of the offence, character of the evidence and amongst other s the larger interest of the public. (Emphasis is supplied) 13. From the discussions, held above, what surfaces is that a court, while g ranting or refusing bail, must assign the reasons for its decision. The reasons assigned, however, must not be an elaborate discussion of the materials collect ed so that the accused is not prejudiced and his case must not appear to have be en prejudged. There is, therefore, a need, on the part of the court, to maintai n a balance between the need to assign reasons for refusing or granting bail, on the one hand, and the caution to be applied, on the other, to ensure that the a ssignment of reasons should not be so elaborate that the case of the accused app ears to have