(Criminal Appeal filed under Section 34 of the Prevention of Terrorism Act, 2002 (POTA) to set aside the order dated 24.06.2019 passed in Crl.M.P. No. 153 of 2019 in Special C.C. No. 5 of 2003 on the file of the Special Court under the Prevention of Terrorism Act, 2002 (Sessions Court for Exclusive Trial of Bomb Blast Cases), Chennai at Poonamallee.)
R. Subbiah, J.
1. The Appellant is Accused No. 29 in Special C.C. No. 5 of 2003 on the file of the Special Court under the Prevention of Terrorism Act, 2002. She has come forward with this appeal questioning the validity of the order dated 24.06.2019 passed by the trial court, refusing to enlarge her on bail, pending trial.
2. The case of the prosecution is that the petitioner/A-29 along with others, assembled in a mango grove owned by one of the accused Murugesan in Salajokipatti of Krishnagiri District on 23.11.2002 for taking arms training. While so, on the next day viz., 24.11.2002, based on a tip off, the police party searched the house of one of the accused Gurusamy and arrested Martin, Tamilselvan, Prabhakaran and Murugesan. Further, the police party on hearing that some of the Naxalites are taking armed training in Salajokipatti, proceeded to the mango grove and surrounded those assembled in the mango grove. At that time, there was exchange of fire, which resulted in the death of one Siva @ Parthiban due to gun shot injury. The appellant and other accused have however escaped from the spot and assembled at another mango grove near Gurugapatti Village, Kallavi Police Limit. On the next day i.e., 24.11.2002, during a search, the police saw the petitioner and other accused hiding in the mango groove at Gurugapatti Village, where also, there was exchange of fire. However, the Police party apprehended one of the accused Balan/A-21, but others escaped from the scene and absconded. In this context, a case in Crime No. 434 of 2002 came to be registered on the file of the Kallavi Police Station for the offences punishable under Sections 148 and 307 of Indian Penal Code read with Sections 25 (1) (a) and 3, 4 of the Explosive Substances Act, 1908. After investigation, charge sheet was filed in the said case against 31 accused and it was taken as Special C.C. No. 5 of 2003 on the file of the trial Court. In the charge sheet, the appellant herein was shown as A-29 but as an absconding accused. Since the appellant and other accused escaped, their cases were split-up and charges framed against the other accused on 26.11.2004. Subsequently, one Poothipatti Ramachandran/A-25, Sundaramurthy/A-26 and Bharathi/A-27 were apprehended and therefore, charges were framed against them. Further, one Reena Joyce Mary/A-28 was also apprehended. However, the appellant herein could not be secured and therefore, the case against her was split up and tried separately in Special C.C. No. 1 of 2009. In fact, as against the appellant herein, an order of proclamation under Section 82 of Code of Criminal Procedure was passed and thereafter, with great difficulty, the appellant was arrested on 21.07.2016 in Karur along with another accused Kala. According to the prosecution, even during the period when the appellant went underground, she continued her Maoist activities along with the banned CPI (Maoist) organisation. Thus, nearly after 14 years of registration of the case in Crime No. Crime No. 434 of 2002, the appellant was arrested.
3. It is contended on behalf of the prosecution that the appellant, along with other accused, had entered into a criminal conspiracy and indulged in acts of terrorism. It is the case of the prosecution that the statement of the co-accused and other materials collected during investigation would abundantly makes it clear that the appellant involved herself in the offence alleged.
4. Earlier, the appellant filed a Petition in Crl.M.P. No. 540 of 2017 for discharge before the trial court under Section 227 of The Code of Criminal Procedure. The trial Court dismissed the Petition and refused to discharge the appellant from the criminal prosecution. Challenging the same, the appellant has filed Criminal Appeal No. 389 of 2018 before this Court and it was dismissed by this Court on 18.02.2019 with liberty to the appellant to file a fresh Petition seeking bail before the trial Court. Pursuant to the said order dated 18.02.2019, the appellant has filed the present petition seeking bail before the trial Court and upon its dismissal on 24.06.2019 , she has filed this Criminal Appeal before this Court.
5. When the appeal is taken up for hearing today, the learned counsel for the appellant would contend that the appellant is under incarceration for the past more than three years. There was no substantial progress in the trial and the delay in concluding the trial has prejudiced the appellant. The learned counsel for the appellant also would contend that the only material made available by the prosecution as against the appellant is the confession statement of the co-accused and it is a weak piece of evidence for consideration. In this context, the learned counsel for the appellant placed reliance on the Judgment dated 19.04.2012 passed by the Division Bench of this Court by which bail was granted in favour of one of the Accused Sundaramoorthy and submitted that the appellant is also similarly placed and therefore, the trial court ought to have granted bail to her. The learned counsel for the appellant also relied on the decision of the Honourable Supreme Court in the case of (Shaheen Welfare Association vs. Union of India and others) reported in (1996) 2 Supreme Court Cases 616 wherein it was held in para Nos. 10, 11 and 12 as follows:-
"10. Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20 (8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh case 1994 3 SCC 569 on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21.
11. These competing claims can be reconciled by taking a pragmatic approach.
12. The proper course is to identify from the nature of the role played by each accused person the real hardcore terrorists or criminals from others who do not belong to that category; and apply the bail provisions strictly insofar as the former class is concerned and liberally in respect of the latter class. This will release the pressure on the courts in the matter of priority for trial. Once the total number of prisoners in jail shrinks, those belonging to the former class and, therefore, kept in jail can be tried on a priority basis. That would help ensure that the evidence against them does not fade away on account of delay. Delay may otherwise harm the prosecution case and the harsh bail provisions may prove counterproductive. A pragmatic approach alone can save the situation for, otherwise, one may find that many of the undertrials may be found to have completed the maximum punishment provided by law by being in jail without a trial. Even in cases where a large number of persons are tied up with the aid of Section 120-B or 147, IPC, the role of each person can certainly be evaluated for the purpose of bail and those whose role is not so serious or menacing can be more liberally considered. With inadequate number of courts, the only pragmatic way is to reduce the prison population of TADA detenus and then deal with hardcore undertrials on priority basis before the evidence fades away or is lost. Such an approach will take care of both the competing interests. This is the approach which we recommend to courts dealing with TADA cases so that the real culprits are promptly tried and punished."
6. By relying upon the aforesaid decision and by contending that the prolonged incarceration of the appellant is unnecessary inasmuch as there is no progress in the trial and that there is no material evidence collected against the appellant, except the weak piece of confession statement of a co-accused, the learned counsel for the appellant prayed for granting bail to the appellant by setting aside the order of the trial court.
7. Opposing the arguments advanced by the learned counsel for the appellant, the State Public Prosecutor appearing for the respondent would contend that there are several material evidences collected against the appellant and those materials could be projected only during the course of trial against the appellant. The learned Public Prosecutor would vehemently contend that it is not correct to state that except the confession of co-accused, there is no other material collected by the prosecution. According to the learned Public Prosecutor, the confession statement of a co-accused is always not a weak piece of evidence, as has been contended by the counsel for the appellant and it is admissible and reliable as against another co-accused. In this context, the learned Public Prosecutor placed reliance on the decision of the Honourable Supreme Court in the case of (Prakash Kumar @ Prakash Bhutto vs. State of Gujarat) reported in (2005) 2 Supreme Court Cases 409 wherein it was held that the confession statement duly recorded would continue to remain admissible as against a co-accused.
8. Elaborating further, the learned Public Prosecutor would submit that the appellant is a member of the banned organisation. The husband of the appellant is also a member of such organisation and he is arrayed as A-26 in this case. The husband of the appellant was convicted and sentenced to undergo seven years imprisonment and fine of Rs.2,000/- by the trial court in another case and it was also confirmed by this Court. Similarly, the brother of the appellant by name Manivasagam was also an accused and arrayed as A-30 in this case. The brother of the appellant was arrested on 24.11.2002, however, he was released on bail on 18.05.2007. After his release, the appellant's brother Manivasagam violated the bail conditions and absconded. However, after lapse of four years, he was re-arrested by the respondent police on 20.02.2012. But, he was once again granted bail on 05.12.2012 and after such release, the appellant's brother absconded and continued to indulge himself in terrorist activities at the Tri-junction area of the Western Ghats and he is an important Commander of the Western Ghats Special Zonal Committee of the banned CPI (Maoist) Organisation. The appellant also absconded for 14 years from the date of occurrence and after proclamation order was passed against her under Section 82 of the Code of Criminal Procedure, she was arrested with great difficulty by the police.
9. Above all, the learned Public Prosecutor would mainly contend that Manivasagam, brother of the appellant, was shot dead on 28.10.2019 by the police officials of Kerala and his body was kept in the mortuary of the Government Hospital, Trissur, Kerala. The body of the said Manivasagam was brought to Salem for performing his last rites. At this stage, HCP No. 1521 of 2019 was filed before the Madurai Bench of this Court to grant parole for 30 days to the appellant (sister of the deceased) and Kala (wife of the deceased) to attend the funeral. Accordingly, this Court passed an order dated 14.11.2019 subject to certain conditions. The order reads as follows:-
"....(e) Immediately after the completion of the final rites, the detenues shall return back to the house of Lakshmi and they shall be escorted by the police
(f) The detenues shall stay in the house of Lakshmi and whatever ceremony has to be performed, it will be performed only in the house of Lakshmi and they shall not be permitted to move out of the house
(g) No outsider shall be permitted to meet the detenues when they are staying at the residence of Lakshmi and the police shall ensure that the detenues do not have access to mobile phones or to any other social media;
(h) No person, namely the detenues or any other family members of the detenues, shall be permitted to give interviews to any media or news channel; and
(i) The detenues namely Kala and Chandra shall surrender before the Superintendent of Prisons, Trichy on 17.11.2019 (Sunday) by 5.30 pm and they shall be escorted back to the jail by the police.
10. By referring to the aforesaid order, the learned Public Prosecutor would contend that notwithstanding the above direction, on 15.11.2019 at about 00.15 am when the dead body of Manivasagam was brought to the burial ground, the appellant and the other co-detenue Kala, one Lakshmi, Wife of Salivaganam, Salivaganam, Son of Kuppusamy and their son Sudhakar have formed an unlawful assembly and raised slogans against the Government. Even though the Revenue Inspector by name Kannan requested the appellant and others not to raise any such slogan against the Government, they refused to give any heed. In connection with this incident, the Village Administrative Officer, K.N. Pudur, Kadayampatti Taluk, Salem District has given a complaint against the appellant and others based on which a case in Crime No. 14 of 2020 was registered against the appellant and five others for the offences punishable under Sections 188, 120B, 121, 121A, 124A of the Indian Penal Code and Sections 10, 13, 15 and 18 of the Unlawful Activities (Prevention) Act, 1987. Therefore, the learned Public Prosecutor would vehemently contend that the appellant failed to adhere to the parole conditions imposed by this Court and therefore, if the appellant is let on bail, she will abscond and she could not be secured again. It is also submitted that the appellant is not residing in the address as stated in the appeal and that she had left the address shown in the appeal 20 years back. Further, the appellant has no ration card, Voter Identity Card or any other proof to show her address and therefore, there is every likelihood of the appellant absconding, besides indulging in unlawful activities along with the banned terrorist organisation - CPI (Maoist) and therefore, the learned Public Prosecutor would pray for dismissal of this appeal.
11. We have heard the counsel for both sides and perused the materials placed on record. The appellant was arrayed as Accused No.29 in S.C. No. 5 of 2003 on the file of the learned Special Court under the Prevention of Terrorism Act, 2002 corresponding to Crime No. 1004, 1005, 1006 and 434 of 2002. The above said Crime numbers relate to an alleged incident that took place on 24.11.2002 in which the appellant and others are alleged to have taken arms training in a mango grove. On 24.11.2002, there was also an exchange of fire when the police party attempted to apprehend the appellant and others. However, only few of the accused could be nabbed on 24.11.2002 and the appellant and others escaped. It is stated that since the appellant could not be secured for a long time, the case against the appellant was split up. The investigation agency have also obtained an order declaring the appellant as absconding as contemplated under Section 82 of the Code of Criminal Procedure. It is also stated that the Government issued G.O. (Ms) No.21 dated 06.01.2005 announcing cash reward of Rs.2 lakhs to those who may provide useful information or clue leading to the arrest of the absconding arrest in the case. Ultimately, on 21.07.2016, the appellant was arrested in Karur along with one another accused by name Kala. Thus, in connection with the case registered in the year 2002, after fourteen years, the appellant was secured and from 21.07.2016, she is undergoing incarceration.
12. The learned counsel for the appellant vehemently contend that there is no materials collected by the investigation agency as against the appellant. What is relied on by the respondent is the confession statement of the co-accused and except the same, there is no material evidence is made available. This was denied by the learned Public Prosecutor appearing for the State by contending that there are several evidence collected by the respondent and those evidence will be produced only during the course of trial.
13. Be that as it may, whether there are materials collected and/or made available against the appellant cannot be gone into by this Court at this stage. While granting bail, what is to be considered is dealt with by the Honourable Supreme Court in the decision in (Sanjay Chandra vs. Central Bureau of Investigation) (2012) 1 SCC 40 wherein it was held as follows:-
"37. The principles, which the Court must consider while granting or declining bail, have been culled out by this Court in Prahlad Singh Bhati vs. NCT Delhi, (2001) 4 SCC 280 = 2001 SCC (Crl) 674 thus: (SCC pp.284-85, para-8)
"8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting bail, the Court has to keep in mind the nature of accusations, the nature of (the) evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words 'reasonable grounds for believing' instead of 'the evidence' which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."
"38. In State of U.P. vs. Amarmani Tripathi (2005) 8 SCC 21 = 2005 SCC (Crl) 1960 (2) this Court held as under: (SCC pp.31 & 32, paras 18 & 22)
"18. It is well settled that the matters to be considered in an application for 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 charge; (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 offences being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati vs. NCT Delhi) and Gurucharan Singh vs. State (Delhi Admin). While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there 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 vs. Rajesh Ranjan (2004) 7 SCC 528 = 2004 SCC (Crl) 1977 (SCC pp.535-36, para 11)."
"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 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 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 suffer from non-application of mind. It is also necessary for the Court granting bail to consider among other circumstances the following factors also before granting bail; they are
(a) The nature of accusation and the severity of the punishment in case of conviction 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 vs. Sudarshan Singh (2002 3 SCC 598 = 2002 SCC (crl) 688 and Puran vs. Rambilas) (2001 6 SCC 338 = 2001 SCC (Crl) 1124"
14. In this backdrop, it is to be noted that the appellant along with others have alleged to have indulged in acts of terrorism. The appellant is alleged to have been associated with a banned organisation and indulged in various unlawful activities. We also noted that the appellant was wanted in connection with the case registered against her in the year 2002, but she could not be secured for 14 years. Thereafter, only in the year 2016, the appellant was arrested and from then on she is under incarceration. Thus, the offences alleged against the appellant and the nature and gravity of the offences alleged are serious and they are taken note of by this Court. Further, the learned Public Prosecutor brought to the notice of this Court the act of the appellant when she was on parole. According to the learned Public Prosecutor, even when the appellant was on parole, she raised slogans and made a provocative speech to incite violence. In connection with this incident, a case in Crime No. 14 of 2020 was registered against the appellant and others on 18.01.2020 on the file of Deevattipatti Police Station, Salem, which reads as follows:-
15. The complaint given by the Village Administrative Officer, based on which the above said case in Crime No. 14 of 2020 was
Please Login To View The Full Judgment!
registered against the appellant and others, would indicate that slogans alleged to have been raised by the appellant are provocative. This is more so that such slogans were raised when she was granted parole by this Court subject to specific conditions. This subsequent event was brought to the notice of this Court by the learned Public Prosecutor who expressed an apprehension that if the appellant is let on bail, she will not only abscond but indulge in similar activities which are detrimental to the law and order maintenance by the Police in the State. We find considerable force in such submission of the learned Public Prosecutor. 16. The learned counsel for the appellant would contend that the trial is not progressing and the appellant is continuously languishing in jail. We are unable to consider this submission. The trial court specifically recorded a finding that after framing of the charges against one of the accused Bharathi, the trial was to commence on 20.01.2016 but at that stage, the counsel for the accused had withdrawn his appearance and therefore, counsel from the Tamil Nadu State Legal Services Authority, Chennai was appointed. Further, the trial court made a specific observation that in connection with this case, three writ petitions are pending before this Court and by citing the same, the accused are not prepared to proceed with the trial. Therefore, it is evident that the trial proceedings are deferred or could not commence due to the delays which are largely attributable on the part of the accused themselves. In any event, merely because the trial is prolonging or has not yet commenced, it will not be a ground for the appellant to seek bail. The nature of the offences alleged, the gravity of such offence and past conduct of the appellant, if taken as a whole, would only entail this Court to come to an irresistible conclusion that the appellant cannot be granted bail. The trial court also, on proper consideration of the materials made available, has rightly concluded that the appellant cannot be granted bail. We are fully in agreement with such a conclusion arrived at by the trial court. 17. In the result, we confirm the order dated 24.06.2019 passed in Crl.M.P. No. 153 of 2019 in Special C.C. No. 5 of 2003 on the file of the Special Court under the Prevention of Terrorism Act, 2002 (Sessions Court for Exclusive Trial of Bomb Blast Cases), Chennai at Poonamallee. The Criminal Appeal is dismissed.