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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: ANAND CHINTAMAN DIGHE

DATE OF JUDGMENT16/01/1990

BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) AHMADI, A.M. (J)

CITATION:  1990 AIR  625            1990 SCR  (1)  73  1990 SCC  (1) 397        JT 1990 (1)    28  1990 SCALE  (1)25

ACT:     Code  of  Criminal  Procedure, 1973:  Sections  437  and 438--Bail-Grant of--Factors to be considered.     Terrorist  and Disruptive Activities  (Prevention)  Act, 1987:  Section 20(8)--Offences under the  Act--Accused--When could be granted bail.

HEADNOTE:     The respondent was a member of a political party. Conse- quent upon the defeat of the party in Mayoral elections held in  March, 1989, the party felt that there was  cross-voting and there were traitors among them and the respondent made a declaration that such traitors would not be spared. Thereaf- ter  the  respondent  was arrested in  connection  with  the murder  of one of the Corporators. He was accused of  having committed  offence under Section 3(1) of the  Terrorist  and Disruptive  Activities (Prevention) Act, 1987,  besides  of- fences punishable under Sections 148, 149, 120-B and 302  of the  Indian  Penal Code. The designated court  released  the respondent on bail while the investigation was pending.     This  appeal  by the State is against the order  of  the designated court. Allowing the appeal, this Court,     HELD: 1. Sub-Section (8) of SeCtion 20 of the Act clear- ly  provides  that  unless the court is  satisfied  for  the reasons to be recorded that there are reasonable grounds  to believe  that the respondent is not involved  in  disruptive activities bail shall ordinarily be refused. Even under  the provisions of Section 437 and 438 of the Code of ’  Criminal Procedure,  the powers of the Sessions Judge are not  unfet- tered. [75F]     2. Where the offence is of serious nature the Court  has to decide the question of grant of bail in the light of such considerations  as  the nature and seriousness  of  offence, character of the evidence, circums- 74 tances  which  are  peculiar to the  accused,  a  reasonable possibility of presence of the accused not being secured  at the  trial and the reasonable apprehension of witness  being tampered  with,  the larger interest of the public  or  such similar other consideration. [76B-C]

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   3. In the instant case, the salient principles in grant- ing  bail in grave crimes have not been taken note  of.  The Court  was  obsessed  by the fact that  the  respondent  was associated  with a political party and was oblivious of  the nature of the allegations made against him and the  relevant materials  indicating  that the respondent had  been  making utterances inciting violence. [76D]     4.  This court would not ordinarily interfere  with  the discretion  of the lower court in granting or refusing  bail but  in  cases  where bail has been  granted  on  irrelevant considerations,  such  as  the status or  influence  of  the person  accused and regardless of the nature of the  accusa- tion and relevancy of materials on record, this Court  would not  hesitate to interfere for the ends of justice.  [75G-H; 76A]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 669 of 1989.     From  the  Judgment and Order dated   18.5.1989  of  the Designated  Court, Poona in Crl. Bail Application No. 11  of 1989.     G.  Ramaswamy, Additional Solicitor General,  S.V.  Tar- kunde and A.M. Khanwilkar for the Appellant. U.R. Lalit and V.N. Ganpule for the Respondent. The Judgment of the Court was delivered by     FATHIMA  BEEVI, J. By the impugned order dated the  18th May, 1989 the Designated Court, Pune directed the respondent to be released on bail. The respondent was accused of having committed  offence under Section 3(1) of the  Terrorist  and Disruptive  Activities (Prevention) Act,  1987  (hereinafter referred  to as ’the Act’) besides the  offences  punishable under  Sections 148, 149, 120-B and 302 of the Indian  Penal Code.     The respondent was the member of the Shiv Sena Party and the Chief of the Thane District Unit. In consequence of  the defeat of the party in Mayoral election held on 20th  March, 1989 the party felt that 75 there  was cross-voting and there were traitors among  them. There  had  been a declaration by the respondent  that  such traitors would not be spared. The respondent was arrested in connection with the murder of one of the Corporators  Shrid- har Khopkar on 21.4. 1989 on registering Crime No. 1348/89.     In releasing the respondent on bail while  investigation was  pending,  the  Designated Court appears  to  have  been influenced  by  the fact that respondent was the  leader  of Political  Party.  The court assumed that as  a  leader,  he would  not  be involved in such crimes and  that  there  are reasonable grounds for believing that the respondent is  not guilty of any offence under the Act.     Having  heard  both the sides, we feel  that  the  whole approach by the learned Judge was misconceived and the order is  unsustainable.  We have been taken  through  the  entire proceedings. We find that the learned Judge has not  noticed the relevant provisions of the Act which restrict the powers of  the Court in granting bail. The learned Judge  had  also refused  to consider the materials placed before it for  the purpose of satisfying himself whether there are no  reasona- ble grounds to believe that the respondent has committed the offence.  In the course of the investigation witnesses  have been  questioned and their statements have been  reduced  to writing.  The learned Judge refused to consider  the  state-

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ments  recorded in the course of the investigation  for  the simple reason that such statements had not been read out  in open Court though the Court was empowered to peruse the case diary  for the purpose of satisfying itself as to the  stage of  investigation  and the nature of the evidence  that  had been collected.     Sub-Section  (8) of Section 20 of the Act  clearly  pro- vides that unless the Court is satisfied for the reasons  to be  recorded  that there are reasonable grounds  to  believe that  the respondent is not involved in  disruptive  activi- ties,  bail  shall  ordinarily be refused.  Even  under  the provisions  of Sections 437 and 438 of the Code of  Criminal Procedure,  the powers of the Sessions Judge are not  unfet- tered.  The  salient principles in granting  bail  in  grave crimes have not been taken note of.     This  Court  would  not ordinarily  interfere  with  the discretion  of the lower court in granting or refusing  bail but  in  cases  where bail has been  granted  on  irrelevant considerations,  such  as  the status or  influence  of  the person  accused and regardless of the nature of the  accusa- tion and relevancy of materials on record, this Court  would not 76 hesitate to interfere for the ends of justice.     There  are  no hard and fast rules  regarding  grant  or refusal  of bail, each case has to be considered on its  own merits.  The matter always calls for judicious  exercise  of discretion  by  the Court. Where the offence is  of  serious nature the Court has to decide the question of grant of bail in the light of such considerations as the nature and  seri- ousness of offence, character of the evidence, circumstances which are peculiar to the accused, a reasonable  possibility of  presence of the accused not being secured at  the  trial and  the reasonable apprehension of witness  being  tampered with,  the  larger interest of the public  or  such  similar other considerations.     In  the present case the learned Judge observed that  it is a case of respectable person of a big political organisa- tion,  his freedom cannot be curtailed if he is entitled  to bail. His liberty cannot be curbed if enlarged on bail  and, therefore,  no kind of condition is required to be  imposed. The  Court  also  observed that being a leader  of  the  big political organisation one cannot expect that the respondent will commit any offence if enlarged on bail and he cannot be called  to be a criminal. The learned Judge was obsessed  by the fact that the respondent was associated with a political party  and  was oblivious of the nature of  the  allegations made against him and the relevant materials indicating  that the respondent had been making utterances inciting violence. The respondent gave repeated statements to the Press  saying that the traitors’ life will be made difficult and  probably they  will  be killed. This was published in  Marathi  Daily ’Navakal’  on 22.3.89. He repeated his threat and  this  ap- peared  in an interview given to the reporter of the  Weekly Magazine ’Lokprabha’ in its issue of 9.4.1989. In an  inter- view  in daily ’Urdu Times’ dated 16.4.1989  the  respondent asserted  that he knew the names of the traitors  but  could not disclose the same. He also asserted that the  punishment for  traitors  is death and they would be  killed  and  this decision has not been taken by him in anger.      In  the backdrop of such assertions, it  was  necessary for the Court to consider the further materials collected by the investigating agency by recording statements of witness- es.  The court below misdirected itself in refusing to  look into  such statements and concluding that it is a  case  for

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granting bail taking into account only the position held  by the  respondent  in the party. The court  clearly  erred  in disposing of the application for bail. 77     In view of what has been stated above, we set aside  the order  of  the  Designated Court and allow  the  appeal  and cancel the bail granted to the respondent, without prejudice to his right to move the Designated Court at any  subsequent stage. G.N.                                        Appeal allowed. 78