Bail granted to appellant in Dabholkar murder case due to lack of evidence: Bombay High Court

 on 06 05 2021 on 22 03 1 33 CRAPPEAL 187.20+1.doc Judgment IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTION.CRIMINAL APPEAL NO.187 OF 2020WITHINTERIM APPLICATION NO. 661 OF 2020Vikram Vinay Bhave S o Vinay Bhave Indian Inhabitant aged 37 years presently lodged in Yerawada Central Prison & having residence at : House No.101 Shigvan Lane Post Varsai Taluka Pen Dist. Raigad. …. Appellant Vs. 1. State of Maharashtra Through Public Prosecutor. 2. Central Bureau of Investigation Special Crime Branch A 2 Wing 8th Floor CGO Complex CBD Belapur Navi Mumbai 400 614….RespondentsANDCRIMINAL APPEAL NO. 472 OF 2020Vikram Vinay Bhave Indian Inhabitant aged 37 years presently lodged in Yerawada Central Prison & having residence at : 497 Flat No.24 Gurudatta Maya Appt. Shivanagar Devad New Panvel Dist. Raigad 410206 At and post Morde Tal Devrukh Dist. Ratnagiri 415804.….APPELLANTDUSANE on 06 05 2021 on 22 03 2 33 CRAPPEAL 187.20+1.doc Judgment Vs. 1. State of Maharashtra Through Public Prosecutor. 2. Central Bureau of Investigation Special Crime Branch A 2 Wing 8th Floor CGO Complex CBD Belapur Navi Mumbai 400 614..….RESPONDENTS ..Mr. Ghanshyam Upadhyay Advocate a w Mr.VirendraIchalkaranjikar Advocate a w Mr. Vishal Shukla Advocate for theappellant in Appeal No.1820. Mr. Subhash Jha Advoate a w Mr. Vasant Bansode Mr.Ranjit Nair and Mr.Harekrishna Mishra Advocates for the appellant in AppealNo.4720.Mrs. S.D.Shinde APP for respondent No.1 State. Mr. Sandesh Patil Advocate i b Mr. D.P. Singh Advocate forrespondent No.2 CBI. .CORAM : S.S. SHINDE & MANISH PITALE JJ.RESERVED ON : 24.03.2021. PRONOUNCED ON : 06.05.2021.JUDGMENT challenging the orders dated 21 01 2020 and 15 09 2020 whereby the Court of Additional Sessions Judge Pune has rejectedbail applications filed by the appellant. 4.The facts leading up to filing of these two appeals arethat on 20 08 2013 Dr.Narendra Dabholkar an activist seeking tospread awareness against superstitions was shot dead in Pune. AFirst Information Report was registered at the Deccan PoliceStation Pune for the offence punishable under section 302 readwith section 34 of the Indian Penal Codeand section 3 and25 of the Arms Act against two unknown persons. It is the case ofthe prosecution that Dr. Dabholkar was shot dead when he wastaking his morning walk on the said date. On 09 05 2014 theinvestigation was transferred to the Central Bureau ofInvestigationwas also added. The charge sheet was filed for the offencepunishable under section 302 read with section 34 of the IndianPenal Code as also section 16 of the UAPA. 5Further investigation was undertaken and accordingto respondent No.2 CBI material was unearthed which connectedthe appellant with the said offence. It was alleged that whenreconstruction of the crime scene was undertaken at the behest ofthe said accused Sharad Kalaskar in the proceeding recorded inthe presence of independent witnesses the said accused namedthe appellant herein as the person who had helped them toconduct a recce of the spot where Dr.Dabholkar was shot dead about 15 days prior to the date of the incident. It was also statedthat the appellant allegedly showed them the way to escape onmotorcycle after committing the crime. The said accused alsoallegedly identified the photograph of the appellant. On the basisDUSANE on 06 05 2021 on 22 03 5 33 CRAPPEAL 187.20+1.doc Judgment of such material on 25 05 2019 the appellant came to bearrested and a supplementary charge sheet was filed on20 11 2019 against the appellant and another accused person inconnection with the said crime.6The appellant had moved a bail application prior tofiling of charge sheet against him which was rejected on17 08 2019. After filing of the aforesaid supplementary charge sheet on 20 11 2019 the appellant filed bail application whichstood rejected by order dated 21 01 2020 which is subjectmatter of challenge in Criminal Appeal No.1820. Theappellant had moved another bail application before the SessionsCourt on the ground that the said appeal pending before thisCourt was not being heard as this Court was taking up only urgentmatters due to the COVID 19 pandemic. The said bail applicationwas also rejected by the Sessions Court on 15 09 2020 which isthe subject matter of challenge in Criminal Appeal No.472 of2020.7Mr. Subhash Jha learned counsel for the appellant appearing in Criminal Appeal No.4720 and Mr. GhanshaymDUSANE on 06 05 2021 on 22 03 6 33 CRAPPEAL 187.20+1.doc Judgment Upadhyay learned counsel for the appellant appearing in CriminalAppeal No.1820 submitted that the impugned orderspassed by the Sessions Court rejecting the bail applications of theappellant were erroneous and that the material brought on recordby respondent No.2 CBI seeking to connect the appellant with theaforesaid incident was far fetched even if such material was to beaccepted. It was submitted that the sheet anchor of the materialrelied upon by the CBI was an alleged confession dated12 10 2018 given by the co accused Sharad Kalaskar under theprovisions of the Karnataka Control of Organized Crimes Act 2000in a case registered against him in the State ofKarnataka. It was submitted that such a confession given by thesaid accused person in a totally unrelated case in the State ofKarnataka could not be used against the appellant. By referring tosection 19 of the KCOC Act particularly proviso to sub sectionof the UAPA for grant of bailwas clearly satisfied by the appellant as the material against theappellant could not be said to be even prima facie true. Byinviting attention to the reasons given by the Sessions Court in thetwo impugned orders the learned counsel for the appellantsubmitted that the said Court erred in rejecting the bailapplications by relying upon the aforesaid confession and also onthe fact that the appellant was convicted in another case appealagainst which was pending before this Court wherein he wasgranted bail. The Sessions Court had opined that when theDUSANE on 06 05 2021 on 22 03 8 33 CRAPPEAL 187.20+1.doc Judgment appellant was released on bail by this Court his involvement inthe aforesaid incident indicated that he did not deserve to beenlarged on bail in the present case. Both these reasons were saidto be unsustainable. The learned counsel for the appellant reliedupon judgments of the Hon’ble Supreme Court in the case ofSundarlal Kanaiyalal Bhatija v. State of Maharashtra reported in(2010) 4 SCC 414 NIA v. Zahoor Ahmad Shah Watali reported in(2019) 5 SCC 1 and judgment of the Division Bench of this Courtin the case of Dhan Singh v. Union of India reported in 2019 SCCOn line Bom. 5721. 9Per contra Mr. Sandesh Patil learned counselappearing for the contesting respondent No.2 CBI submitted thatthe appeals deserved to be dismissed because the appellant hadfiled successive bail applications without demonstrating as to whythe said bail applications could be favourably considered. Thelearned counsel further submitted that while considering thequestion of grant of bail particularly in the context of section 43 Dof the UAPA the Court was not supposed to appreciate thematerial and evidence on record in detail and it was only to beanalyzed whether such material demonstrated that theDUSANE on 06 05 2021 on 22 03 9 33 CRAPPEAL 187.20+1.doc Judgment accusations made against the appellant were prima facie true. Itwas submitted that the alleged discrepancies pointed out onbehalf of the appellant could not lead to a conclusion that therewas no connection between the appellant and the aforesaidincident. The learned counsel further submitted that co accusedSharad Kalaskar had specifically stated in his confessionalstatement recorded under the KCOC Act that the appellant hadhelped to conduct recce of the spot of the incident and he hadassisted the accused persons in identifying the escape route. Thesame accused person while reconstructing the crime scene hadspecifically named the appellant as the person who had helped toconduct the recce and that therefore it was evident that there wassufficient prima facie material against the appellant indicatingthat he did not deserve to be enlarged on bail. It was submittedthat the Sessions Court correctly relied upon such materialdenying relief of bail to the appellant. It was emphasized that theappellant was admittedly convicted in another case and that hewas out on bail during pendency of his appeal before this Courtwhere he got involved in the said incident. This was a relevantfactor which the Sessions Court had taken into consideration andtherefore no error could be attributed to the Sessions Court inDUSANE on 06 05 2021 on 22 03 10 33 CRAPPEAL 187.20+1.doc Judgment rejecting the bail applications of the appellant. The learnedcounsel for respondent No.2 CBI relied upon judgments of theHon’ble Supreme Court in the case of NIA v. Zahoor Ahmad ShahWataliKalyan Chandra Sarkar v. Rajesh Ranjan reportedin7 SCC 528 and Anil Kumar Tulsiyani v. State of U.P. reported9 SCC 425.10We have heard the learned counsel for the rivalparties and perused the material on record. These two appealshave come up for consideration together before us for the reasonthat the appellant filed subsequent bail application before theSessions Court after rejection of his earlier bail application andduring pendency of appeal filed there against bearing CriminalAppeal No.1820. The appellant has stated in hissubsequent bail application filed before the Sessions Court that hewas constrained to file the same in view of the fact that the saidappeal pending before this Court could not be taken up forconsideration in view of this Court taking up only urgent matersdue to COVID 19 pandemic. The subsequent bail application wasrejected by the impugned order dated 15 09 2020 and theappellant filed Criminal Appeal No.4720 challenging theDUSANE on 06 05 2021 on 22 03 11 33 CRAPPEAL 187.20+1.doc Judgment same.11Since the reasons given by the Sessions Court in boththe impugned orders are almost similar and the appellant beforethis Court is the same person both the appeals were taken up forconsideration together. A perusal of both the impugned orderswould show that there are two main reasons why the SessionsCourt has rejected the bail applications preferred by the appellant.The first reason is the confessional statement made by co accusedSharad Kalaskar under the KCOC Act in a case pending before aCourt in Karnataka pertaining to a similar incident where anindividual was shot dead. The Sessions Court has placed muchemphasis on the said confessional statement while holding againstthe appellant. The second reason given by the Sessions Court inboth the impugned orders is that when the incident in the presentcase took place the appellant was out on bail granted by thisCourt in an appeal against his conviction. The Sessions Courtfound that when the appellant was involved in the incident thattook place in the present case while he was on bail he certainlydid not deserve to be enlarged on bail in the present case. DUSANE on 06 05 2021 on 22 03 12 33 CRAPPEAL 187.20+1.doc Judgment 12Before analyzing as to whether the reasons given bythe Sessions Court while rejecting the bail applications of theappellant were justified or not it would be appropriate to firstrefer to the relevant provision of UAPA since offence punishableunder section 16 of UAPA is also said to have been committed bythe appellant along with other accused persons. The provisionrelevant for considering an application for bail concerningoffences under UAPA shows that the accused has to pass astringent test in order to be considered eligible for grant of bail.In this regard section 43 D(5) of the UAPA is relevant which readsas follows:“43 D. Modified application of certain provisions of theCode.Notwithstanding anything contained in theCode no person accused of an offence punishableunder Chapters IV and VI of this Act shall if in custody be released on bail or on his own bond unless thePublic Prosecutor has been given an opportunity ofbeing heard on the application for such release: Provided that such accused person shall not bereleased on bail or on his own bond if the Court on aDUSANE on 06 05 2021 on 22 03 13 33 CRAPPEAL 187.20+1.doc Judgment perusal of the case diary or the report made undersection 173 of the Code is of the opinion that there arereasonable grounds for believing that the accusationagainst such person is prima facie true.”13The aforesaid provision states that an accused underthe UAPA shall not be released on bail if on a perusal of the casediary or report submitted under section 173 of the Code of Crimi nal Procedure the Court is of the opinion that there are reason able grounds for believing that the accusation made against theaccused persons is prima facie true. Thus if the Court believesthat the material placed on record reasonably shows that the accu sation made against the accused persons is prima facie true bailcannot be granted to the accused persons. This provision wasspecifically dealt with by the Hon’ble Supreme Court in the case ofNIA v. Zahoor Ahmad Shah Wataliof the UAPAand found that even though under the said provision the accusedis required to pass a stringent test for grant of bail it was foundthat the said test was lesser in degree when compared to provi sions in other Special Acts like the Maharashtra Control of Orga nized Crimes Act 2000 and other such similar enactments. Insuch other special enactments the Court is required to come toDUSANE on 06 05 2021 on 22 03 14 33 CRAPPEAL 187.20+1.doc Judgment prima facie finding that the accused is not guilty and only thencan bail be granted to the accused. After appreciating this distinc tion the Hon’ble Supreme Court in the said judgment found thatwhile granting bail under section 43 D(5) of the UAPA the Courtmust be satisfied that there were no reasonable grounds to believethat the accusation made against the accused persons is prima fa cie true. In other words the Court would have to look at the ma terial brought on record by the investigating agency and to con clude that even prima facie the accusation levelled against the ac cused on the basis of such material did not appear to be true. 14A Division Bench of this Court in the case of DhanSingh v. Union of Indiaconsidered the question of grant ofbail to accused persons under the provisions of the UAPA and afterreferring to the aforesaid judgment of the Hon’ble Supreme Courtin the case of NIA v. Zahoor Ahmad Shah Wataliheld thatwhen the words “prima facie” are coupled with the word “true” itimplies that the Court has to undertake an exercise of crosscheck ing the truthfulness of the allegations made in the complaint onthe basis of the material on record. It was also held that if theCourt found on such analysis that the accusations were inherentlyDUSANE on 06 05 2021 on 22 03 15 33 CRAPPEAL 187.20+1.doc Judgment improbable or wholly unbelievable it would be difficult to holdthat a prima facie true case was made out against the accused. Anote of caution was appended in the said judgment to the effectthat while carrying out such exercise the Court does not have lib erty to come to a conclusion which may virtually amount to anacquittal of the accused. Therefore it becomes evident that theCourt has to proceed on the basis of the material placed before itby the investigating agency and accepting the same to analyze thequestion as to whether the accusations made against the accusedcould be said to be prima facie true. 15Applying the said principles applicable to considera tion of bail applications under the UAPA we will have to considerthe material placed on record in the present case. Since respon dent No.2 CBI has placed much emphasis on the confessionalstatement dated 12 10 2018 given by the co accused SharadKalaskar while opposing the present appeals it would be relevantto consider as to what could be the significance attached to such aconfessional statement. 16It is undisputed that the said confessional statementDUSANE on 06 05 2021 on 22 03 16 33 CRAPPEAL 187.20+1.doc Judgment of co accused Sharad Kalaskar dated 12 10 2018 was recordedin a case pending against him in the State of Karnataka and thatsuch confessional statement was recorded under section 19 of theKCOC Act. The said provision is pari materia with section 20 ofthe MCOC Act and even section 19 of the Terrorist and DestructiveActivitiesAct 1987Notwithstanding any thing in the Code or in the Indian Evidence Act 1872but subject to the provisions of this section a confes sion made by a person before a police officer not belowthe rank of the Superintendent of Police and recordedby such police officer either in writing or on any me chanical device like cassettes tapes or sound tracksfrom which sound or images can be reproduced shall beadmissible in the trial of such person or co accused abettor or conspirator: Provided that the co accused abettor or conspir ator is charged and tried in the same case together withthe accused.” 17The proviso to section 19 quoted above shows thatsuch confession shall be admissible against co accused person pro vided that the co accused is charged and tried in the same case to gether with the accused person. In the context of pari materiaprovision i.e. section 15 of the TADA in the case of SunderlalDUSANE on 06 05 2021 on 22 03 17 33 CRAPPEAL 187.20+1.doc Judgment Kanaiyalal Bhatija v. State of Maharashtrathe Hon’bleSupreme Court held as follows:“18.Finally in paragraph 40 this Court an swered the issues framed by them in the followingmanner:"40. For the reasons aforestated we are of theview that the decision in Nalini case has laiddown correct law and we hold that the confes sional statement duly recorded under Section 15of TADA and the Rules framed thereunder wouldcontinue to remain admissible for the offencesunder any other law which were tried along withTADA offences under Section 12 of the Act not withstanding that the accused was acquitted ofoffences under TADA in the same trial." 19. That being the position it is now a settled law thata confessional statement duly recorded by a policeofficer in a case related to TADA Act and the rulesframed thereunder would continue to remainadmissible for the offences under any other law whichwere tried along with TADA offences under Sections 12read with Section 15 of the Act notwithstanding thatthe accused was acquitted of offences under the TADAAct in the same trial. But here is a case where theallegation was mainly for the offences under IPC andsome offences under the TADA Act were alsoincorporated initially but later on the same weredropped. Consequently charges in the said case wereframed only for offences under IPC and not under theTADA Act and the trial is also only for offences underIPC and not under the TADA Act. Therefore suchconfessional statement as made by the Respondent 4DUSANE on 06 05 2021 on 22 03 18 33 CRAPPEAL 187.20+1.doc Judgment under the TADA Act in a different case cannot be usedor utilized by the prosecution in the present case as thecharges were framed only for the offences under theIndian Penal Code.”18Thus applying the position of law that emerges fromthe said judgment to the facts of the present case it becomes clearthat even at this stage that respondent No.2 CBI may not be justi fied in wholly relying upon the said confessional statement of co accused Sharad Kalaskar. The said confessional statement is ad mittedly made under the KCOC Act in a case pending against thesaid co accused Sharad Kalaskar in the State of Karnataka whereinthe appellant is not charged or being tried together with the saidco accused Sharad Kalaskar. The said confessional statement asper the said position of law recognized by the Hon’ble SupremeCourt cannot be of significance in the present case as it is admit tedly a case different from the one being tried in the case of Stateof Karnataka and in any case the appellant is not charged or be ing tried together with the said co accused Sharad Kalaskar in theState of Karnataka. Therefore the emphasis placed by respondentNo.2 CBI solely on the said confessional statement of co accusedSharad Kalaskar under the KCOC Act is prima facie misplaced andit is also clear that the Sessions Court could not have placed em DUSANE on 06 05 2021 on 22 03 19 33 CRAPPEAL 187.20+1.doc Judgment phasis on the said confessional statement to conclude that the ac cusation made against the appellant concerning the incident inquestion could be said to be prima facie true. Therefore the firstreason stated in the impugned orders passed by the Sessions Courtin the present case while rejecting the bail applications appears tobe based on weak material i.e. the said confessional statement. 19Apart from the said confessional statement accordingto the learned counsel appearing for respondent No.2 CBI theidentification of the appellant by co accused Sharad Kalaskarbased on a photograph provided by the appellant himself as alsothe reference to the role of the appellant in the proceeding per taining to reconstruction of crime scene at the behest of the saidco accused Sharad Kalaskar in the presence of independent wit nesses was sufficient incriminating material to directly connectthe appellant with the incident in question. It was submitted thatsuch material was enough to show that the accusation madeagainst the appellant was prima facie true and that therefore nointerference was warranted in the impugned orders.20A perusal of the said material shows that onDUSANE on 06 05 2021 on 22 03 20 33 CRAPPEAL 187.20+1.doc Judgment 18 08 2018 a proceeding was prepared by the investigatingagency i.e. respondent No.2 CBI as per the statement given by an other co accused person Sachin Andure pertaining to reconstruc tion of the crime scene. This was recorded in the presence of in dependent witnesses. The said proceeding shows that the incidentthat occurred on 20 08 2013 in which Dr.Dabholkar was killed was described in detail and the role of the said accused Sachin An dure and that of co accused Sharad Kalaskar was stated. It wasalso stated as to the manner in which both the accused persons es caped after the incident. It is significant that in this proceedingpertaining to reconstruction of the scene of crime there is nomention of the name of the appellant herein or the manner inwhich he or any unknown person had helped the said accusedpersons by conducting a recce about 15 days prior to the date ofthe incident. 21.But in a similar proceeding pertaining to reconstruc tion of crime scene prepared on 08 09 2018 at the behest of co accused Sharad Kalaskar in the presence of independent wit nesses not only was the incident described in the manner inwhich co accused Sachin Andure had described in the proceedingDUSANE on 06 05 2021 on 22 03 21 33 CRAPPEAL 187.20+1.doc Judgment dated 18 08 2018 but the name of the appellant was also statedand it was specifically claimed that the appellant had assisted theaccused persons by helping them conduct recce of the spot of theincident about 15 days prior to the incident. 22There is obvious discrepancy in the two proceedings.Apart from this statement of one of the independent witnesses tothe proceeding pertaining to reconstruction of crime scene pre pared at the behest of the co accused Sharad Kalaskar dated08 09 2018 shows that the said independent witness stated de tails of the said proceeding. It is also recorded in the statement ofthe said independent witness as to how the said co accusedSharad Kalaskar described the actual incident. Yet there is no ref erence in the statement of this independent witness about co ac cused Sharad Kalaskar having taken the name of the appellantand the role attributed to him. Although it is recorded in thestatement of the independent witness that the proceeding dated08 09 2018 and the contents thereof are true the absence of ref erence to the name of the appellant is of some significance. 23The other aspect on which the learned counsel forDUSANE on 06 05 2021 on 22 03 22 33 CRAPPEAL 187.20+1.doc Judgment respondent No.2 CBI emphasized was the fact that co accusedSharad Kalaskar recognized the appellant on the basis of photo graph supplied by the appellant himself. The material on recordin the context of the same shows that according to the seizurememo pertaining to the photograph the same was produced bythe appellant himself and it was seized on 12 09 2018. Theseizure memo specifically records that the photograph was seizedfrom the appellant on 12 09 2018 at 2.30 pm. In this context the memorandum prepared in the presence of witnesses in con nection with identification of photograph of the appellant by co accused Sharad Kalaskar shows that the proceeding pertaining toidentification of the photograph of the appellant started at 2.00pm and concluded at around 2.30 pm on 12 09 2018. The tim ing mentioned in the seizure memo of the photograph and theaforesaid memorandum does create some doubt regarding thesame. Therefore the material on which much emphasis has beenplaced by respondent No.2 CBI to link the appellant with the inci dent in question does not appear to indicate that the accusationlevelled against the appellant can be said to be prima facie true.These aspects were not appreciated in the correct perspective bythe Sessions Court while passing the impugned orders. DUSANE on 06 05 2021 on 22 03 23 33 CRAPPEAL 187.20+1.doc Judgment 24We are aware that while considering the materialplaced on record along with the charge sheet the Court cannotenter into the realm of appreciation of evidence but we have pro ceeded on the basis of the material on which respondent No.2 CBIhas placed emphasis and as noted above we find that the samedoes not appear to show reasonable grounds to conclude that theaccusations levelled against the appellant can be said to be primafacie true. This leaves us with the only other reason on which theSessions Court has rejected the bail applications of the appellanti.e. the fact that the appellant was on bail pending appeal againsta conviction when he got allegedly involved in the incident in thepresent case. A perusal of the impugned orders would show thatthe Sessions Court has proceeded on the basis that the earlier con viction of the appellant was also for a terrorist offence. But as amatter of fact the conviction of the appellant in the other case inwhich he was released on bail pending appeal before this Court was not for a terrorist offence. Therefore the emphasis placed onthis aspect by the Sessions Court was misplaced and only for thisreason the bail applications of the appellant could have beenrejected. DUSANE on 06 05 2021 on 22 03 24 33 CRAPPEAL 187.20+1.doc Judgment 25Insofar as the reliance on judgments by the learnedcounsel appearing for respondent No.2 CBI is concerned the judg ment of the Hon’ble Supreme Court in the case of Kalyan ChandraSarkar v. Rajesh Ranjanpertains to the duty of the Courtwhile dealing with subsequent bail application to consider the rea sons and grounds on which earlier bail applications were rejectedand to record the fresh grounds which persuaded it to take a dif ferent view. In the present case admittedly this Court had not re jected the earlier appeal i.e. Criminal Appeal No.1820 filedby the appellant when the appeal arising from the rejection of thesubsequent bail application i.e. Criminal Appeal No.4720came up for consideration. It is for this reason that both the ap peals are clubbed together and taken for consideration by thisCourt. In fact a perusal of the impugned order in both the ap peals would show that the reasons given by the Sessions Courtwere more or less similar and therefore both the appeals wereheard together and they are being disposed of by this commonjudgment. Hence reliance on the said judgment of the Hon’bleSupreme Court cannot be of assistance to respondent No.2 CBI. 26Insofar as judgment of the Hon’ble Supreme Court inDUSANE on 06 05 2021 on 22 03 25 33 CRAPPEAL 187.20+1.doc Judgment the case of Anil Kumar Tulsiyani v. State of UPis con cerned the same pertains to the factors to be taken into consideration while granting bail in non bailable offences. The serious ness of the offence is one such consideration emphasized upon. Inthis regard suffice it to say that while considering the contentionsraised on behalf of the appellant in these appeals we have notonly considered the relevant factors concerning prayer for grant ofbail but the specific requirement of section 43 D(5) of the UAPAhas also been considered and applied to the facts of the presentcase. 27Insofar as judgment in the case of NIA v. Zahoor Ah mad Shah Wataliis concerned reference to the same hasbeen made herein above and applying the principles laid downtherein we are of the opinion that the appeals filed by the appel lant deserve to be allowed. 28.Additionally in a recent judgment in the case ofUnion of India Vs. K.A. NajeebtheHon’ble Supreme Court held that even if stringent requirementsDUSANE on 06 05 2021 on 22 03 26 33 CRAPPEAL 187.20+1.doc Judgment for granting bail in special statutes like U.A.P.A. may result in asituation where the accused finds it difficult to get a favourableorder of bail the Constitutional Courts could certainly grant bail even in such cases if it is found that rights guaranteed under PartIII of the Constitution are violated. It has been held that longdelay in initiation and completion of trial violates the constitu tional right to speedy trial and that in such situation the Constitu tional Court can grant bail when there is no likelihood of the trialbeing completed in a reasonable time. The relevant portion of thesaid judgment reads as follows :“18.It is thus clear to us that the presence ofstatutory restrictions like Section 43 DofUAPA per se does not oust the ability of Constitu tional Courts to grant bail on grounds of violationof Part III of the Constitution. Indeed both the re strictions under a Statue as well as the powers ex ercisable under constitutional jurisdiction can bewell harmonised. Whereas at commencement ofproceedings Courts are expected to appreciate thelegislative policy against grant of bail but therigours of such provisions will melt down wherethere is no likelihood of trial being completedwithin a reasonable time and the period of incar ceration already undergone has exceeded a sub DUSANE on 06 05 2021 on 22 03 27 33 CRAPPEAL 187.20+1.doc Judgment stantial part of the prescribed sentence. Such anapproach would safeguard against the possibilityof provisions like Section 43Dof UAPA beingused as the sole metric for denial of bail or forwholesale breach of constitutional right to speedytrial.” 29.In the present case according to the submissionsmade on behalf of the Respondent No. 2 CBI it is clear that fur ther investigation is being undertaken for examining the largerconspiracy in the matter. It has been stated in a note in thecharge sheet that further list of witnesses will be submitted as in vestigation under Section 173(8) of the Cr.P.C. is continuing. Thus there is hardly any likelihood of charges being framed and thetrial commencing in the near future. Consequently there is verylittle chance of the trial being completed in the foreseeable future.Considering the nature of allegations and extent to which the Re spondent No. 2 CBI would be examining witnesses in the matter it can be reasonably concluded that the beginning of the trial andits completion would take a long time. Therefore we are of theopinion that this is an additional reason why the prayer for grantof bail of the Appellant deserves to be allowed by imposing appro priate conditions.DUSANE on 06 05 2021 on 22 03 28 33 CRAPPEAL 187.20+1.doc Judgment 30In view of the above the appeals are allowed. Theimpugned orders dated 21 01 2020 and 15 09 2020 are quashedand set aside. The bail applications of the appellant are allowedin the following terms:i.The appellant shall be released on bail on furnishing PRbond of Rs.1 00 000 and two solvent sureties in thelike amount. ii.The appellant shall report to the Deccan Police Station Pune every day between 8.00 am and 10.00 am forfirst one month. Thereafter he shall report to the saidPolice Station twice a week i.e. on Monday and Thurs day between 10.00 am. and 12.00 noon for the nexttwo months. Thereafter the appellant shall report tothe said Police Station every Monday between 10.00 amand 12.00 noon till conclusion of the trial. iii.The appellant shall attend each and every date of theproceedings before the Trial Court. DUSANE on 06 05 2021 on 22 03 29 33 CRAPPEAL 187.20+1.doc Judgment iv.The appellant shall remain within the jurisdiction of thetrial Court Special Court till the trial is concluded.v.The appellant shall extend full co operation duringfurther investigation by the concerned investigationagencies.vi.The appellant shall not in any manner himself orthrough any person try to influence or pressurize theprosecution witnesses. vii.The appellant shall not himself or through any persontamper with the evidence and witnesses viii.The appellant shall surrender his passport if any beforethe Special Court where the trial is being conducted ifnot already surrendered.ix.The appellant shall not indulge in any activity similar tothe activities on the basis of which the said F.I.R. stoodDUSANE on 06 05 2021 on 22 03 30 33 CRAPPEAL 187.20+1.doc Judgment registered.x.The appellant shall not try to establish communicationwith the co accused or any other person involved di rectly or indirectly in similar activities through anymode of communication.xi. The appellant shall co operate for expeditious disposalof the trial and in case delay is caused due to him thenhis bail would be liable to be cancelled.xii.In the event the appellant violates any of the aforesaidconditions the relief of bail granted by this Court willbe liable to be cancelled. xiii.After release of appellant on bail he shall file underta king within two weeks before the concerned trial Courtstating therein that he will strictly abide by the condi tions No.tomentioned herein above. 31.It is also made clear that the observations made inthis judgment and order are limited to the question of grant ofDUSANE on 06 05 2021 on 22 03 31 33 CRAPPEAL 187.20+1.doc Judgment bail to the appellant and that the trial shall proceed against theappellant and the co accused persons without being influenced bythe observations made herein above. 32.The appeals stand disposed of accordingly.33In view of disposal of the Criminal Appeals InterimApplication No. 6620 does not survive the same is accord ingly disposed of.34Mr.Jha appearing for the appellant prays thatkeeping in view the present pandemic situation the appellantmay be initially released on furnishing only cash surety andsecondly that the appellant is a resident of Ratnagiri Districtand it will be inconvenient for him to attend the police sta tion at Pune as ordered by this Court. This prayer of thelearned Counsel is vehemently opposed by Mr.Sandesh Patil appearing for the CBI.35In absence of any specific application by theappellant we are not inclined to entertain prayer made byDUSANE on 06 05 2021 on 22 03 32 33 CRAPPEAL 187.20+1.doc Judgment Mr.Jha to release the appellant initially on furnishing cashsurety for six weeks with undertaking that he will furnishsolvent surety within six weeks. However as regards his oralprayer for furnishing cash surety the appellant is grantedliberty to file an appropriate application and may move thesame before the Vacation Court. Insofar as the second oralprayer of the appellant to stay clauseof the operativeorder i.e. “The appellant shall remain within the jurisidctionof the trial Court Special Court till the trial is concluded.” and his attendance to the police station at Pune as ordered bythis Court is concerned the said oral prayer is rejected.36Mr.Sandesh Patil appearing for the Respondent CBI prays for stay to the effect and implementation of thisjudgment and order.37Mr.Jha learned Counsel appearing for theappellant vehemently opposed the prayer made by Mr.Patiland submitted that the appellant is in jail for a considerableperiod and there are no valid grounds raised to stay the effectDUSANE on 06 05 2021 on 22 03 33 33 CRAPPEAL 187.20+1.doc Judgment and implementation of the judgment and order pronouncedtoday directing release of the appellant.38On considering the rival submissions we do notthink any valid reasons to accede to the prayer of Mr.SandeshPatil appearing for the CBI so as to stay the effect andimplementation of this order. Hence the said oral prayerstands rejected.(MANISH PITALE J.) (S.S.SHINDE J.)DUSANE 

Summary: There must be sufficient reasons for denying a bail application and that must include prima facie evidence that prove beyond reasonable doubt the involvement of the accused in a crime. The appellant in the Dabholkar murder case was initially refused bail by the Sessions Court. However, the Bombay High Court overturned the previous order and granted bail on the ground that sufficient evidence could not be gathered by CBI. The Bench of Justice SS Shinde and Justice Manish Pitale while adjudicating the matter in Vikram Vinay Bhave v. State of Maharashtra &amp; Other; [Criminal Appeal No. 187 of 2020] dealt with the provision relevant for considering a bail application for those offences under UAPA. Narendra Dabholkar was a social activist who wanted to spread awareness against superstitions. He was shot dead in Pune while taking a morning stroll. The investigation of the said murder was transferred to CBI. One of the accused namely Sharad Kasalkar named the appellant i.e Vikram Bhave as the person who helped them in committing the murder. It was said that the appellant showed them the way to escape on motorcycle after commission of the crime. The learned counsel representing the appellant expressed that a confession given by the accused Sharad Kasalkar could not be utilised against the appellant. CBI in the above case could not find sufficient substantial information proving that the appellant had assisted the other two accused in committing the murder. The only statement they relied on was the confessional statement of the accused Sharad Kasalkar. The Bombay High Court held that, according to the UAPA Act, an accused shall not be released on bail if the Court is of the opinion that there are reasonable grounds for believing that the accusation is prima facie true. In this particular case, with respect to the nature of allegations and extent to which CBI has investigated the matter, there were no strong grounds on which the bail application can be rejected. Thus, the bail applications of the appellant were allowed with some conditions imposed.