Escolar Documentos
Profissional Documentos
Cultura Documentos
ALONG WITH
CRIMINAL APPLICATION NO.1440 OF 2016
AND
CRIMINAL APPLICATION NO.71 OF 2017
IN
CRIMINAL APPEAL NO.545 OF 2016
1 APEAL-545-16-Pragya Singh.doc
Mr. Avinash Gupta, Senior Advocate, i/by Mr. J.P. Mishra, a/w.
Mr. Shyam Dewani, Mr. Prashant Muggu, Ms. Akanksha Helaskar,
Mr. Aakash Gupta, Mr. V.S. Uberoi and Mr. Sujender Yadav, i/by
M/s. Dewani Associates, for the Appellant-Original Accused No.1.
Mr. Anil C. Singh, A.S.G., a/w. Mr. S.D. Patil and Ms. Indrayani
Deshmukh, for the Respondent-NIA.
Mr. B.A. Desai, Senior Counsel, a/w. Mr. Abdul Wahab Khan,
Mr. Sharif Shaikh, Mr. Wahab Khan, Mr. Ansar Tamboli, Ms. Naina
Shaikh, Mr. Shahid Ansari and Mr. Afzal, for the Intervenor-
Applicant in Criminal Application Nos.1440 of 2016 and 71 of 2017.
2 APEAL-545-16-Pragya Singh.doc
M.C.O.C. Special Case No.8 of 2011 alias N.I.A. Special Case No.1 of
Special Court, constituted under MCOC Act and NIA Act at Mumbai,
Sections 302, 307, 326, 324, 427, 153A and 120B of the Indian
3, 5 and 25 of the Arms Act, 1959, (for short, Arms Act), r/w.
(Prevention) Act, 1967, (for short, UAP Act), r/w. Sections 3(1)
3. Brief facts of the case, which may be relevant for deciding this
Appeal and which are summarized by Special Court in its order and
3 APEAL-545-16-Pragya Singh.doc
the said blast, 6 innocent persons lost their lives and about 101
Azad Nagar Police Station, Malegaon, Dist. Nashik, for the offences
punishable under Sections 302, 307, 326, 324, 427, 153A and 120B
Nashik, (for short, FSL), and as per the report of the FSL, those
4 APEAL-545-16-Pragya Singh.doc
20 and 23 of the UAP Act were invoked and investigation of the case
29th November 2008, the provisions of MCOC Act were also invoked.
2011.
crime, was bogus. The Chassis and Engine Number of the said motor-
sent to the FSL. The FSL could successfully restore the engine
5 APEAL-545-16-Pragya Singh.doc
Purohit, who was serving as 'Lt. Colonel' in the Army and was
India and wanted to prepare their own Constitution. They had also
planned to train the persons for 'Guerrilla War'. They had decided to
6 APEAL-545-16-Pragya Singh.doc
With that object in mind, from time to time, they were holding
their goals.
10. It is the case of ATS that Appellant and co-accused had entered
2008 with the common object to strike terror in the minds of people
7 APEAL-545-16-Pragya Singh.doc
him from Kashmir and the said explosives were assembled at the
ATS, the traces of RDX were found in the house of Accused No.11-
Chaturvedi.
the Appellant. The case of the ATS is further to the effect that the
Dange are the men of the Appellant and they had acted at her
explosion and, thus, as per the case of ATS, Appellant is one of the
principal conspirators and had also taken active part in the bomb-
8 APEAL-545-16-Pragya Singh.doc
order dated 1st April 2011, transferred the investigation of the case
13th April 2011, NIA re-registered the offence in respect of the said
2008. While deciding the said Bail Application, the Special Court,
vide its order dated 31st July 2009, discharged the present
Appellant and all the co-accused from the offences under MCOC Act
per Section 11 of the MCOC Act. Being aggrieved by the said order,
this Court under Section 12 of the MCOC Act. The said Appeal was
dated 31st July 2009 was set aside and the case was restored to the
file of the Special Court under MCOC Act for decision on merit. As a
9 APEAL-545-16-Pragya Singh.doc
against the said order also came to be dismissed by this Court vide
Application No.42 of 2008, to the file of the Special Court for a fresh
Court further held that, the Appellant is also entitled for the same
10 APEAL-545-16-Pragya Singh.doc
Appellant had not preferred any Appeal against the said order.
that Appellant has no concern with the offence and, accordingly, she
case was made out against her. NIA also dropped the charges of
MCOC Act against all the accused persons, thereby concluding that
Appellant filed this fresh application for bail before the Special
Investigating Agency like NIA itself has concluded that she has no
all the charges, prima facie, there is no case against her and hence
11 APEAL-545-16-Pragya Singh.doc
that once it is held by NIA that charges under MCOC Act are not
12 APEAL-545-16-Pragya Singh.doc
of the change in circumstance, the learned Special P.P. for NIA has
given before the Special Court 'no objection' for release of the
21. In this Appeal also, the learned ASG Shri. Anil Singh has
ASG, NIA has already dropped the charges under MCOC Act,
13 APEAL-545-16-Pragya Singh.doc
Kalsangra and was being used by him well before the blast. Reliance
14 APEAL-545-16-Pragya Singh.doc
statements, which were initially made before the ATS officer. Thus,
Appellant and as a result, NIA has given clean-chit to not only the
24. The application of the Appellant for bail is, however, strongly
resisted by the Intervenor before the Special Court and this Court
also. It may be stated that the Intervenor in the case is the father of
Special Court has, vide its detail order dated 17 th June 2016,
bail, practically, there was no one opposing the Bail Application and,
15 APEAL-545-16-Pragya Singh.doc
Intervenor, who was the real aggrieved person, as his son has
and heard learned Senior Counsel for the Intervenor Shri. B.A.
released on bail.
change in the circumstances and despite that, this time, NIA has
urged that under the garb of carrying out further investigation, NIA
has conducted re-investigation and, that too, not of the offence but of
16 APEAL-545-16-Pragya Singh.doc
the ATS. According to learned counsel for the Intervenor, both, the
Trial Court and this Court, have already held, while deciding
conspirator, as having supplied not only the motor-cycle but also the
Senior Counsel for Intervenor, merely because NIA has dropped the
having regard to the gravity and seriousness of the offence, and the
26. The Special Court, after hearing at length learned counsel for
17 APEAL-545-16-Pragya Singh.doc
totally from the record. It was held that the report of the
then, according to the Special Court, no case was made out for
this Court. This Court has also perused the written submissions filed
Court also that, in view of the report of the NIA exonerating the
28. The first and foremost contention raised by learned counsel for
18 APEAL-545-16-Pragya Singh.doc
an opinion that there are reasonable grounds for believing that the
Section 43-D of UAP Act would not be attracted in the present case.
of Section 43-D of UAP Act, were introduced only with effect from
Court, the Hon'ble Apex Court has permitted her to file fresh
19 APEAL-545-16-Pragya Singh.doc
application for bail. Hence, as her plea of bail is yet pending, in view
Application.
30. Learned counsel for the Appellant has, in this respect, relied
have been inflicted under the law in force at the time of commission
20 APEAL-545-16-Pragya Singh.doc
Hon'ble Apex Court has held that, Article 13(1) of the Constitution
32. Learned counsel for the Appellant has also relied upon the
decision of the Hon'ble Apex Court in Bishun Narain Misra Vs. The
33. He has also placed reliance on the decision of the Hon'ble Apex
legislation.
21 APEAL-545-16-Pragya Singh.doc
D(5) of the UAP Act have the effect of curtailing Appellant's right to
bail, they cannot have the retrospective effect and the Appellant's
22 APEAL-545-16-Pragya Singh.doc
non-bailable offences like Sections 302 and 307 of IPC and Accused
38. Learned counsel for the Intervenor has also placed reliance on
Singh Vs. Satpal Singh, AIR 1996 SC 290, wherein the retrospective
suicide by a married woman within seven years from the date of her
Hon'ble Apex Court that, the amended provision under Section 113A
23 APEAL-545-16-Pragya Singh.doc
40. The question involved in the said case was, 'as to whether the
24 APEAL-545-16-Pragya Singh.doc
count that they do not have the effect on pending proceedings, the
Hon'ble Apex Court has laid down following test for deciding the
25 APEAL-545-16-Pragya Singh.doc
41. In the light of these principles, the Hon'ble Apex Court was
was further held that the said Amendment Act is applicable to the
Hon'ble Apex Court was pleased to hold that Section 113A of the
Act No.46 of 1983, does not create any new offence and, as such, it
applicable to the death of a woman that had taken place prior to the
26 APEAL-545-16-Pragya Singh.doc
27 APEAL-545-16-Pragya Singh.doc
extended to the P.P. before passing any order on the Bail Application
of the Accused and second condition to the effect that the accused
shall not be released on bail, if, on perusal of the Case Diary or the
Report made under Section 173 of the Code, the Court is of the
opinion that there are reasonable grounds for believing that the
28 APEAL-545-16-Pragya Singh.doc
under the provisions of the Code also, the Court always ensures as to
true. If it is so, then his right to get the bail becomes restricted.
for life or death, as she is also charged for the offences under Section
302, 120B etc. of IPC. Therefore, under the provisions of the Code
also, it cannot be said that the Appellant has any substantive right
the case of bailable offences. Therefore, the Trial Court has rightly
29 APEAL-545-16-Pragya Singh.doc
Hitendra Thakur (Supra) also, the Hon'ble Apex Court has clearly
against the innocence of the accused, the Hon'ble Apex Court has
held in the case of Gurubachan Singh (Supra) that the said provision
that has taken place before the amendment. The Hon'ble Apex Court
has refused to accept the argument advanced in the said case that
Accused had vested right to get decided his case as per the
48. In the instant case, therefore, it has to be held that, as the Bail
30 APEAL-545-16-Pragya Singh.doc
Act came into effect and as the provisions relating to bail are
provisions are not, in any way, affecting the right of the Accused to
said offences, as already this Court has taken cognizance of the case
2010, the Hon'ble Apex Court has, though raised doubt about the
31 APEAL-545-16-Pragya Singh.doc
implicating the accused with the offences under MCOC Act and the
relied upon the judgment of the Hon'ble Apex Court in the case of
State of Tamil Nadu Vs. Nalini & Ors., (1999) 5 SCC 253.
count that, the Hon'ble Apex Court has already expressed doubts
32 APEAL-545-16-Pragya Singh.doc
MCOC Act against all the Accused. Hence, according to him, there is
while deciding the said issue raised for its consideration, the Hon'ble
Judgment as follows :-
33 APEAL-545-16-Pragya Singh.doc
53. The Appellant herein was also, accordingly, held entitled for
54. It may be true that Hon'ble Apex Court has not dropped the
NIA at that time was in progress. Hence, the Hon'ble Apex Court has
not dropped the charges of MCOC against the Appellant and other
34 APEAL-545-16-Pragya Singh.doc
set aside the orders of rejection of the bail of the Appellant therein,
the purpose of grant of bail and, accordingly, the Hon'ble Apex Court
Judge for passing orders on merit. The Appellant herein was, thus,
also held entitled for the same relief, as was granted to the Appellant
the Hon'ble Apex Court has made the things very clear by directing
35 APEAL-545-16-Pragya Singh.doc
for the Intervenor, the order of the Hon'ble Apex Court nowhere
Act, but on its own merits, as the Hon'ble Apex Court has then
36 APEAL-545-16-Pragya Singh.doc
Tripathi, 2005 (8) SCC 21, and Kalyan Chandra Sarkar Vs. Rajesh
Apex Court in the case of State of Tamil Nadu Vs. Nalini and Ors.
their acquittal for the charges under TADA and in this case MCOC
Court has not set aside the order of this Court holding that
37 APEAL-545-16-Pragya Singh.doc
59. In our considered opinion, at this stage, this point should not
Court in the case of State of Tamil Nadu vs. Nalini (Supra) make it
co-accused, recorded under MCOC Act for the purpose of the offences
punishable under IPC, arises only if the accused persons, at the end
of trial, are acquitted of the charges under MCOC Act. The material
words are 'at the end of the trial' . Hence, there has to be joint trial of
very clear and categorical to the effect that the Bail Applications of
38 APEAL-545-16-Pragya Singh.doc
under IPC, even if Accused are acquitted under TADA or MCOC Act,
especially when the trial and applications for discharge filed by the
and once those provisions are not to be considered for the purpose of
present Appellant.
39 APEAL-545-16-Pragya Singh.doc
sanction accorded in this case is not legal and valid for two reasons;
the first reason being, the State Government had no power to accord
stage.
40 APEAL-545-16-Pragya Singh.doc
follows :-
reads as follows :-
41 APEAL-545-16-Pragya Singh.doc
66. The relevant Rules made by the Central Government under the
2. Definitions :-
(1) In these rules, unless the context otherwise
requires -
(a) .......................................................................
(b) Authority means the Authority to be
appointed by the Central Government, (or,
as the case may be, the State Government,
under sub-section (2) of Section 45);
(c) .......................................................................
(2) .................................................................................
42 APEAL-545-16-Pragya Singh.doc
Mumbai, on 17th January 2009, under Section 45(2) of the UAP Act,
43 APEAL-545-16-Pragya Singh.doc
the offences under Chapters IV and VI of the UAP Act are concerned,
the Central Government, or, as the case may be, of the State
Thus, it can be seen that both the Central Government as well as the
44 APEAL-545-16-Pragya Singh.doc
under the Section. In our considered opinion, such Rules, which are
prosecutions under the Act, was appointed and its report was
45 APEAL-545-16-Pragya Singh.doc
Das @ Mili Panda & Ors. Vs. State of Orissa, 2011 SCC OnLine Ori 61,
Bail Application also, the facts thereof reveal that, in that case, the
High Court was exercising its inherent power under Section 482 of
as to whether the State has prescribed any time limit for the
46 APEAL-545-16-Pragya Singh.doc
the negative.
73. As against it, in the present case, we don't get any such
Vs. State of Gujarat, (1995) 5 SCC 302, Hussain Ghadiyali Vs. State
Pathan Vs. State of Gujarat, (2012) 11 SCC 606 , they reveal that, in
held that such 'sanction' was invalid. Moreover, the sanction was
held to be invalid in these cases after full-fledged trial and not at the
47 APEAL-545-16-Pragya Singh.doc
was clear from the perusal of the 'Sanction Order' itself, as the
instant case, one has to ascertain, at the time of trial, from the
75. Learned counsel for the Appellant has then placed reliance on
45(2) of the Act, being not followed, the 'sanction' obtained in the
76. Learned counsel for the Appellant has in this respect also
48 APEAL-545-16-Pragya Singh.doc
2004 Supp2 BomCR 698, wherein it was held that, cognizance taken
Appellant has relied upon the decision of the Hon'ble Apex Court in
the case of P.K. Pradhan Vs. State of Sikkim, (2001) 6 SCC 704 . In
this case, no doubt, the Hon'ble Apex Court has held that, the
49 APEAL-545-16-Pragya Singh.doc
Court in the case of C.B.I. Vs. Ashok Kumar Aggarwal, AIR 2014 SC
827, the stage of examining the validity of the sanction is during the
sanction could be gone into even at the pre-trial stage was rejected,
mixed question of fact and law, that could not be decided at pre-trial
It was held that the law relating thereto was sufficiently crystallized
on this aspect.
50 APEAL-545-16-Pragya Singh.doc
Ravi Kumar Singh Vs. Union of India, 2014 Cri.L.J. 3103 , wherein
UAP Act was raised on the similar ground that the report which
it is not mandatory for the prosecution to place before the Court the
can safely place reliance on the Judgment of our own High Court in
51 APEAL-545-16-Pragya Singh.doc
authorities had not applied the mind properly. It was contended that
the letter of approval did not disclose the material placed before the
after taking into consideration the law laid down by the Hon'ble
52 APEAL-545-16-Pragya Singh.doc
Court cannot come to the conclusion that the review report was not
53 APEAL-545-16-Pragya Singh.doc
83. At this stage, it may be stated that this Bail Petition has
the Appellant has preferred two applications for bail on merits; out
April 2014 by this Court. Her second application for bail filed at
the Special Court, against which she has not preferred any Appeal to
this Court. Her application for bail on medical ground is also rejected
54 APEAL-545-16-Pragya Singh.doc
84. Now, for maintainability of this fresh application for bail, the
given to her by the NIA, which has carried out further investigation,
under Section 173(8) of the Code. In its investigation, NIA has re-
the investigation done by ATS is not relied upon by NIA. NIA has not
only exonerated the Appellant, but also Accused Nos.2, 3, 12, 15 and
16, from all the charges. NIA has also dropped the MCOCA charge
against all the Accused. Thus, it is clear that NIA has found itself to
ATS.
to apply for bail afresh. The Apex Court in Babu Singh v. State of UP
[1978 SCC(Cri) 133] held that order refusing application for bail
always permissible.
55 APEAL-545-16-Pragya Singh.doc
are squarely applicable to the facts of the present case. Mr. Gupta,
the learned Senior Counsel for the Appellant also invited our
attention to the judgment and order dated 9th June 2016 passed in
Criminal Appeal No. 138 of 2016. This appeal was filed by co-
accused Prasad Purohit. In the said order, this Court observed that
87. In the light of decision of the Apex Court in Babu Sing (supra)
56 APEAL-545-16-Pragya Singh.doc
88. Mr. Desai, the learned Senior Counsel for the intervenor in
relied upon the decision of the Apex Court in Vinjay Tyagi v. Irshad
Ali @ Deepak [(2013) 5 SCC 762]. In this case one of the question
which fell for consideration before the Apex Court was, 'whether CBI
57 APEAL-545-16-Pragya Singh.doc
no dispute that NIA in the present case has not undertaken such
section 6(5) of the NIA Act, by the order dated 1st April 2011
2013. In the said writ petition the Appellant herein challenged the
58 APEAL-545-16-Pragya Singh.doc
statute and there is no need to read down section 6 of the NIA Act.
It was further held by this Court that when the NIA comes into
the crime.
90. In the light of the same, we hold that, at present, the challenge
accepted.
exonerated the Appellant from all the charges. Hence, the necessary
59 APEAL-545-16-Pragya Singh.doc
SCC 762. In this reported authority, the Hon'ble Apex Court was
follows :-
60 APEAL-545-16-Pragya Singh.doc
that, the Court has to consider the investigation report along with
the record filed by ATS and also the report filed by NIA along with
the documents.
Application, are very well crystallized and laid down by the Hon'ble
are relied upon by the Hon'ble Apex Court itself in its Judgment in
61 APEAL-545-16-Pragya Singh.doc
direction to the Special Court was also given to the effect that the
observations as follows :-
62 APEAL-545-16-Pragya Singh.doc
63 APEAL-545-16-Pragya Singh.doc
95. Thus, as the Hon'ble Apex Court has directed the Special Court
64 APEAL-545-16-Pragya Singh.doc
released on bail or on his own bond unless the Public Prosecutor has
section 173 of the Cr.P.C is of the opinion that there are reasonable
prima facie true. Thus it is clear that the opinion that there are
case diary or report made under section 173 of the Cr.P.C.. In that
view of the matter, in our opinion while considering the present bail
earlier charge-sheet filed by the ATS, report filed by the ATS and
subsequent report filed under section 173(8) by the NIA after re-
65 APEAL-545-16-Pragya Singh.doc
Bom.C.R. (Crim) 567. In this decision, the Hon'ble Apex Court, while
49 and 55.
66 APEAL-545-16-Pragya Singh.doc
99. The ATS has implicated the Appellant in the subject crime,
67 APEAL-545-16-Pragya Singh.doc
accused Ramji, which motorcycle was used for planting bombs and
chassis number was also not visible. Hence, the motorcycle was
referred to the FSL Nasik for determining its engine and chassis
was not possible to find out the chassis number and even the engine
suggested that engine number of the said vehicle could be any of the
i] 50K261886
ii] 50K267686
iii] 50K261686
68 APEAL-545-16-Pragya Singh.doc
that the above said three numbers did not correspond to any vehicle
I] E55OK261886
II] E55OK261686
102. They further informed that these vehicles were sold to the
Even assuming the said motorcycle was found at the place of the
69 APEAL-545-16-Pragya Singh.doc
further stated that in July 2008 also Ramji had brought the said
motorcycle.
20th October 2008. PW-23 has also stated that he has seen Ramji
using the said motorcycle in question for the period of one year prior
gray colour Maruti van. Ramji used Maruti van for the period of 1
and 1/2 years and thereafter he sold it and bought one second hand
70 APEAL-545-16-Pragya Singh.doc
Diwali of 2007 he saw golden LLM freedom scooter No. GJ-05 BR-
that the Appellant was not in possession of the said motorcycle since
much prior to the incident. The trial Court in this regard observed
that the motorcycle was being used by accused Ramji much prior to
proved during trial. However, we find that this is not the defence of
the Appellant but these facts are borne out from the material
71 APEAL-545-16-Pragya Singh.doc
Abhinav Bharat. He also stated that he had not visited Bhopal until
ATS took him to a Ram Mandir at Bhopal in the month of May 2009.
72 APEAL-545-16-Pragya Singh.doc
Delhi, PW-79 (new PW-182) confirmed that he did not attend the
on. At this time, the Appellant said that some people are ready for
this task. This witness also stated that PW79 was looking after
this witness did not support his earlier statement to ATS which was
73 APEAL-545-16-Pragya Singh.doc
the Appellant.
the Appellant.
Code. In these statements, this witness has stated about the meeting
and also told her to inform the police. It is however pertinent to note
74 APEAL-545-16-Pragya Singh.doc
that apart from the Appellant several other persons were also
both the Reports of ATS and NIA are considered conjointly, so far as
are prima facie true. Once it is held so, then the benefit of bail cannot
75 APEAL-545-16-Pragya Singh.doc
arrested on 23rd October 2008 and is in custody since last more than
The medical report of the Appellant indicates that she has become
the Appellant has made out a case for bail under sub-section (5) of
section 43D of the UAP Act. We, accordingly, allow the Appeal and
76 APEAL-545-16-Pragya Singh.doc
here-in-above about the merits of the case, they are made for the
disposed off.
120. At this stage, Mr. Gupta, learned Senior Counsel for the
Appellant, submits that it will take time for furnishing bail bond of
from today, within which time the Appellant will furnish bail bond,
as directed.
77 APEAL-545-16-Pragya Singh.doc
period of one month from today and within the said period of one
Intervenor, at this stage, prays for stay of this order. Since we have
recorded the conclusions for the purpose of this Appeal that there is
78 APEAL-545-16-Pragya Singh.doc