Case: Lt Col Prasad Shrikant Purohit Vs. The State Of Maharashtra

a) On 29.09.2008, at around 9:35 p.m., a bomb explosion took place at Malegaon, District Nasik, opposite Shakil Goods Transport Company between Anjuman Chowk and Bhiku Chowk. The said blast was caused by explosive device fitted in LML Freedom Motor Cycle bearing Registration No.As a result of the said explosion, six persons were killed and about 100 persons had received injuries of various nature. Damage to the property was also caused.(b) The offence came to be registered under CR No. 130/2008 in Azad Nagar Police Station, Malegaon under Sections 302, 307, 326, 324, 427,0B of theIndian Penal Code, 1860 (in short ‘theread with Sections 3, 4, 5 and 6 of the Explosive Substances Act read with Sections 3, 5 and 25 of the Arms Act, 1959.(c) During the course of investigation, the samples collected from the place of offence were sent to the Forensic Science Laboratory at Nasik and the same were found to be containing Cyclonite (RDX) and Ammonium Nitrate. On 18.10.2008, the provisions of Sections 15, 16, 17, 18, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967 (Amended) 2004, (in short ‘the UAPwere invoked and the case was entrusted to Deputy Superintendent of Police, (HQ), Nasik Rural. On 26.10.2008, theSquad (ATS), Mumbai took charge of the investigation and on 29.11.2008, the provisions of Maharashtra Control of Organized Crime Act, 1999 (in short ‘the MCOC Act) were added.(d) During investigation, it was found that the appellant herein, along with otherin the case, entered into a criminal conspiracy between January, 2008 to October, 2008 with a common object and intention to strike terror in the minds of people caused bomb blast at Malegaon by using explosive substances to cause damage to life and property and to create communal rift. According to ATS, the appellant herein had brought RDX with him from Kashmir for the purpose of Bomb Blast at Malegaon.(e) During investigation, it has been further revealed by the ATS that the appellant herein was a serving Army Officer and was associated with Military Intelligence and Interior Terrorism (Insurgency Activities). The appellant herein floated ‘Abhinavorganization in the year 2007 inspite of being serving as a Commissioned Officer in Armed Forces. The otherin the case were also the members of the said organization. The object of the Organization was to turn India into a Hindu Rashtra called asThey had planned to train persons for guerrilla war and had also decided to kill the persons opposing their object of formation of a Hindu Rashtra. As per the investigation, it has also come out that the appellant herein along with other persons had participated in various meetings of the said Organization to discuss various aspects for achieving their goals. Further, it is the case of the ATS that the organization, viz., ‘Abhinavis an Organized Crime Syndicate and its members including the appellant herein were active since 2003. In one of the meetings at Bhopal, on 11/12 April, 2008, the criminal conspiracy to cause bomb blast at Malegaon was hatched. In the said meeting, the appellant herein took the responsibility of providing explosives for the common object in order to take revenge ofactivities by Muslim community.(f) After completion of the investigation, on 20.01.2009, the ATS, Mumbai, filed charge sheet under Sections 302, 307, 326, 324, 427, 153A read with SectionIPC and Sections 3, 5 and 25 of the Arms Act and Sections 15, 16, 17, 18, 20 and 23 of the UAP Act, Sections 3(1)(i), 3(1)(ii), 3(2), 3(3), 3(5) of the MCOC Act, Sections 3, 4, 5 and 6 of the Explosive Substances Act.(g) The appellant came to be arrested on 05.11.2008 in connection to the said offence. The appellant herein preferred a Bail Application being No. 42 of 2008 before the Special Judge under MCOCA for Greater Mumbai. By order dated 31.07.2009, the Special Judge discharged the appellant and otherfrom the offences under MCOC Act and directed to transfer the case to the regular court at Nasik. The State Government, being aggrieved by the order dated 31.07.2009, filed an appeal being 866 of 2009 before the High Court. A Division Bench of the High Court, vide order dated 19.07.2010, set aside the order dated 31.07.2009 and restored the bail application filed by the appellant herein for hearing on merits. The appellant herein went in appeal before this Court and filed Criminal Appeal Nos.of 2010. It would be appropriate to mention here that after filing of the charge sheet by ATS, Mumbai, the investigation of the same was started by the National Investigation Agency, (NIA), New Delhi as per the order of the Government of India dated 01.04.2011 and on 13.04.2011, the NIAthe offence in respect of the said incident as CR No. 5/11.(h) This Court, in Prasad Shrikant Purohit vs. State of Maharashtra and Another (2015) 7 SCC 440 , dismissed the criminal appeals filed by the appellant herein while restoring the Bail Application No. 42 of 2008 to the file of the Special Judge for passing orders on merits. On the question of applicability of the MCOC Act, this Court has observed asIn the light of our above conclusions on the various submissions, we are convinced that in respect of the appellant in Criminal Appeal No. 1971 of 2010, namely,there is no scope even for the limited purpose of Section 21(4)(b) to hold that application of MCOCA is doubtful. We have held that the said appellanthad every nexus with all the three crimes, namely, Parbhani, Jalna and Malegaon and, therefore, the bar for grant of bail under Section 21 would clearly operate against him and there is no scope for granting any bail. Insofar as the rest of the appellants are concerned, for the purpose of invoking Section 21(4)(b), namely, to consider their claim for bail, it can be held that for the present juncture with the available materials on record, it is not possible to show any nexus of the appellants who have been proceeded against for their involvement in Malegaon blast with the two earlier cases, namely, Parbhani and Jalna. There is considerable doubt about their involvement in Parbhani and Jalna and, therefore, they are entitled for their bail applications to be considered onVide order dated 12.10.2015, the Special Judge, rejected the bail application of the appellant herein. Aggrieved by the decision dated 12.10.2015, the appellant herein preferred a Criminal Appeal being No. 138 of 2016 before the High Court. During the pendency of the aforesaid appeal before the High Court, the NIA submitted supplementary charge sheet dropping the charges under MCOCA against all the accused persons including the appellant herein. In view of the supplementary charge sheet by the NIA, the High Court permitted the appellant herein to file fresh bail application.(i) The appellant herein filed a fresh bail application before the Court of Special Judge under MCOC Act, 1999 and NIA Act, 2008 for Greater Mumbai. The Special Judge, vide order dated 26.09.2016, denied the bail to the appellant herein. Being aggrieved by the order dated 26.09.2016, the appellant herein went in appeal before the High Court and filed Criminal Appeal No. 664 of 2016. The NIA resisted the bail application of the appellant herein on various grounds before the High Court. On 25.04.2017, a Division Bench of the High Court, dismissed the bail application of the appellant herein. Aggrieved by the order dated 25.04.2017, the appellant has filed this appeal before this Court by way of special leave.

Reasoning: A perusal of the statements of various prosecution witness recorded under Section 164 of the Code by the NIA, it was revealed that the ATS, Mumbai forced them to make the statements under the aforesaid Section by threatening them to falsely implicate them in the case. In other words, witnesses retracted from their statements recorded by the ATS, Mumbai at Mumbai. Even during79 recorded under Section 164 of the Code, he deposed that he did not attend any meeting of ‘Abhinavheld at Bhopal and he had never visited Bhopal until ATS took him to Ram Mandir, Bhopal in the month of May, 2009. The very same statement was again recorded at Delhi by learned Metropolitan Magistrate, where he confirmed theis also pertinent to mention her that the ATS conducted the search of the house ofon 25.11.2008 wherefrom they had taken the swab of RDX which creates a doubt on the recovery of RDX keeping in view the examination of the witnesses. Even in the charge sheet filed by the ATS, it has been very specifically mentioned that the recovery itself becomes suspect on the ground that the ATS Mumbai may have planted the RDX traces to implicate him and the other accused persons in the case.19) Further, with regard to the contention of learned senior counsel as to the(5) of the UAP Act or want of valid sanction for the prosecution, it was rightly suggested by the learned ASG that it can be considered at the time of trial and not at thisIn our considered opinion, there are material contradictions in the charge sheets filed by the ATS Mumbai and the NIA which are required to be tested at the time of trial and this Court cannot pick or choose one version over the other. 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 rights of the agency. It must result in minimum interference with the personal liberty of the accused and the right of the agency to investigate theBefore concluding, we must note that though an accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.23) 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. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused.24) In view of the foregoing discussion, we are of the considered opinion that there are variations in the charge sheets filed by ATS Mumbai and NIA. Further, the appellant herein, who was at the relevant time was an Intelligence officer of the Indian Army has refuted the claim of conspiracy on the ground of Intelligence inputs which he informed to his superior officers as well and the alleged role of ATS officials in the planting of RDX at the residence ofclearly indicate the fresh grounds which persuade the appellant herein to take a view different from the one taken in the earlier applications. As mentioned earlier, at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken.