Penal Code, 1860 – ss. 302 and 324 – Murder – Voluntarily causing hurt by dangerous weapon or means – Right of private defence, if applicable – On facts, morning incident wherein quarrel between the complainant and accused on account of blocking the way and accused persons hurled abuses to her – In the evening, the complainant informed her father about the incident, the father-victim went to the house of accused persons to enquire, wherein he was assaulted by the accused persons, resulting in his death – Complainant, her brother and mother followed the victim and witnessed the attack – Accused no. 1 convicted and sentenced for offence punishable u/s. 302, and accused no. 2 and 4 u/ss. 324 and 326 and others u/s. 323, by the courts below – Interference:

* Author

[2024] 4 S.C.R. 328 : 2024 INSC 294

Subhash @ Subanna & Ors.

v.

State of Karnataka Ministry of Home Affairs

(Criminal Appeal No. 328 of 2012)

10 April 2024

[Sudhanshu Dhulia and Prasanna B. Varale,* JJ.]

Issue for Consideration

Matter pertains to the correctness of the order passed by the

High Court convicting and sentencing accused no. 1 u/s. 302, and

accused no. 2 and 4 u/ss. 324 and 326 IPC.

Headnotes

Penal Code, 1860 – ss. 302 and 324 – Murder – Voluntarily

causing hurt by dangerous weapon or means – Right of

private defence, if applicable – On facts, morning incident

wherein quarrel between the complainant and accused on

account of blocking the way and accused persons hurled

abuses to her – In the evening, the complainant informed her

father about the incident, the father-victim went to the house

of accused persons to enquire, wherein he was assaulted by

the accused persons, resulting in his death – Complainant,

her brother and mother followed the victim and witnessed the

attack – Accused no. 1 convicted and sentenced for offence

punishable u/s. 302, and accused no. 2 and 4 u/ss. 324 and

326 and others u/s. 323, by the courts below – Interference:

Held: On the assessment of the evidence of the prosecution,

it reveals that though there was a verbal exchange between

the victim and the accused persons, but not in the form of a

provocation by the victim to the accused – Evidence clearly

show that that there was a dispute on account of the pathway;

that the victim was alone, he went to the house of the accused

persons to make an inquiry, but he had not entered in the house

and on the contrary, accused persons armed with stick, chopper

and stone attacked the victim; and that neither the complainant

nor her brother carried any weapon – Evidence of the injured

eyewitnesses shows that the intention of the accused was to do

away with the victim – If right of private defence is applied and

the facts are appreciated, it is clear that the victim was unarmed, 

[2024] 4 S.C.R. 329

Subhash @ Subanna & Ors. v.

State of Karnataka Ministry of Home Affairs

whereas the accused persons who were armed led a brutal attack

on the victim by stick, by koita and stone – High Court rightly

upheld the judgment and order of trial court, thus, does not call

for interference. [Paras 28-34, 36]

Case Law Cited

Darshan Singh v. State of Punjab and Another [2010]

1 SCR 642 : AIR (2010) SC 1212; Virsa Singh v. State

of Punjab [1958] 1 SCR 1495 : AIR (1958) SC 465 –

referred to.

List of Acts

Penal Code, 1860.

List of Keywords

Murder; Right of private defence; Provocation; Injured eyewitnesses.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 328

of 2012

From the Judgment and Order dated 20.04.2011 of the High Court of

Karnataka at Gulbarga in CRLA No. 3601 of 2010

Appearances for Parties

Ms. Kiran Suri, Sr. Adv., S.J. Amith, Ms. Vidushi Garg, Dr. Mrs. Vipin

Gupta, Advs. for the Appellants.

D. L. Chidananda, Ravindera Kumar Verma, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Prasanna B. Varale, J.

1. By way of present appeal, the appellants challenged the judgment and

order dated 20th April, 2011 passed by the High Court of Karnataka

in Criminal Appeal No. 3601/2010, thereby confirming the conviction

and sentence of the Trial Court in Sessions Case No.213/2009 which

had convicted appellants (accused Nos. 1, 2 and 4) under Section

302 of IPC and sentenced them to life imprisonment. Additionally

the High Court also upheld the conviction and sentence of appellant 

330 [2024] 4 S.C.R.

Digital Supreme Court Reports

Nos.1 and 3 (accused Nos 2 & 4) under Sections 324 and 326 of

IPC as awarded by Trial Court.

2. The First Information Report No.18/2009 was lodged at Kamalpur

Police Station, Gulbarga against the accused persons for commission

of offences under Section 143, 147, 148, 504, 323, 324 and 302

r/w Section 149 of Indian Penal Code, on the basis of complaint

submitted by Kumari Sangeeta D/o Mahadevappa Natikar. The

Complaint refers to the incident occurred on 18th February, 2009 at

7.00 a.m. (we may refer to this incident as a prequel to the fateful

incident which occurred on the same day in the evening). It was

submitted in the report that a day earlier i.e., on 17th February, 2009,

uncle of the complainant brought fire wood which was dumped on

the way, blocking the path of the complainant. Thus, Sangeeta tried

to reach the said path to throw dust, at that time she found that her

pathway was covered with the fire wood. As such, she demanded

an explanation from her uncle Subhash. She raised question as

to why the way is blocked, to which her uncle Subhash, his wife

and his children responded by abusing Sangeeta. Sangeeta then

returned to her house. Her father, mother and brothers by that time

had already left for the fields. In the evening, her father and brothers

i.e. Mahadevappa, Hanumantha and Sharanappa, respectively were

apprised about the incident which took place in the morning. Her

father Mahadevappa then proceeded towards the house of uncle

– Subhash and made an enquiry as to why the way was blocked.

Subhash and the other family members started abusing Mahadevappa

and then they assaulted Mahadevappa with a stick on his forehead

and face, causing grievous injuries to Mahadevappa.

3. Dattatrey (appellant No.2), who was carrying chopper laid an assault

on the forehead and head of Mahadevappa, causing grievous injuries

to Mahadevappa. Digambar (appellant No.3) threw a big stone below

the right knee of Mahadevappa, resulting in grievous blood injuries.

Then Digambar picked up a stone in his hand and hit Mahadevappa

on his face causing injury.

4. Sangeeta, her brother Sharanappa and mother who had followed

Mahadevappa, saw the attack on Mahadevappa and younger

brother of Sangeeta made an attempt to intervene in the attack,

who was in turn attacked by Digambar, receiving injuries on his

hand and palm. On hearing hue and cry, residents of the area 

[2024] 4 S.C.R. 331

Subhash @ Subanna & Ors. v.

State of Karnataka Ministry of Home Affairs

namely; Parameshwar S/o Ningappa Pujari and other neighbours

rushed to the spot. When Mahadevappa was brought to his house,

he was unconscious as he had received grievous injuries. Uncle

of Sangeeta, Shivasharanappa along with other persons namely;

Sharanappa and Parameshwar Poojari arranged for a jeep and

Mahadevappa was admitted in the Government Hospital, Gulbarga.

The Doctors of the Gulbarga Hospital declared Mahadevappa dead

and his body was sent for autopsy.

5. On lodging of the First Information report, the Investigating Agency

was set in motion. By completing the necessary formalities of the

investigation, such as recording the statement of witnesses, drawing

“panchanama”; spot mahazar, seizure mahazars etc. and by collecting

the medical evidence in the form of post mortem report issued by

the concerned medical officer, charge sheet came to be filed against

the accused persons.

6. Accused persons pleaded not guilty and were subjected to trial.

7. On appreciation of the evidence, the learned Sessions Judge

convicted the appellants and sentenced them for the offence

punishable under Section 302 to undergo life imprisonment and also

pay fine of Rs. 10,000/- each (in default S.I. for two years each).

Accused nos. 2 and 4 were also convicted for offence punishable

under Section 324 of Indian Penal Code and sentenced to undergo

R.I. for one year and to pay fine of Rs. 1,000/- each (in default S.I.

for six months each). Accused 2 and 4 were also convicted for

offence punishable under Section 326 of Indian Penal Code and

were sentenced to undergo R.I. for three years each and to pay

fine of Rs. 2,000/- each (in default S.I. for one year each). Whereas

accused No.3, 5 and 6 were found guilty for the offences punishable

under Section 323 of Indian Penal Code and sentence to pay fine

of Rs. 500/- each (in default S.I. for two months each). The entire

sentence imposed against accused 2 and 4 was directed to run

concurrently.

8. Accused Nos. 3, 5 and 6 accepted the judgment and order of the

Sessions Court as they have not filed any appeal to the High Court

against the judgment and order of Sessions Court, whereas accused

Nos.1, 2 and 4 filed their appeal to the High Court of Karnataka. As

stated above, the High Court of Karnataka upheld and confirmed

the order of the Trial Court.

332 [2024] 4 S.C.R.

Digital Supreme Court Reports

9. The learned counsel for the appellants submitted that assuming

that the prosecution was successful in establishing the death of

the deceased and the presence of the appellants on the spot, as

well as the active role played by the appellants; the entire material

collected by the prosecution shows that it was the deceased who

came to the house of the accused and then there was a quarrel and

verbal exchange between them. The act of the accused persons,

the verbal exchange and the provocation by the deceased and his

family members prompted the appellants to exercise the right of

their private defence.

10. Learned counsel for the appellants further submits that the evidence

collected by the prosecution also shows that the incident was a

reaction of the appellants to a provocation by the deceased and his

family members. The element of intention of the appellants is not

established by the prosecution. Thus, the submission of the learned

counsel for the appellants was that the act of the appellants would

not attract Section 302 of Indian Penal Code against them and the

offences would be at the most, an offence under Section 304 part

2 of Indian Penal Code.

11. Per contra, learned counsel representing the State of Karnataka

supported the judgment and order passed by the High Court of

Karnataka, upholding the judgment and order of the Sessions Court.

12. We have gone through the record. The prosecution in support of

its case, examined as many as 31 witnesses and is supported by

P.W.18 Ramalingappa, P.W.19 Smt. Mallamma, P.W.20 Shobhavati,

P.W.21 Sangeeta, P.W.22 Sharanappa, P.W.23 Hanmanth, P.W.24 –

Prameshwar, P.W.25 Shivasharanappa and P.W.12 Dr. Balachandra

Joshi. The majority of other witnesses, who are neighbours of the

deceased Mahadevappa, have turned hostile.

13. P.W.17 Sareppa, turned hostile and he has not supported the

prosecution on the aspect of dispute between the complainant’s

family and the accused family. He supports the case of prosecution

that land of deceased and accused are abutting to each other.

14. P.W.18 Ramalingappa supports the version of complainant –

Sangeeta, that to reach the land of deceased Mahadevappa, they

have to pass through the land of the accused and there was a dispute

between Mahadevappa and appellant No.1 on the issue of way.

[2024] 4 S.C.R. 333

Subhash @ Subanna & Ors. v.

State of Karnataka Ministry of Home Affairs

15. Now, to establish the death of Mahadevappa being a homicidal one,

the prosecution mainly draws support from the testimony of P.W.12

Dr. Balachandra Joshi who in his testimony before the Trial Court

states that he was working as Senior specialist since June, 2006 in

Government Hospital, Gulbarga. On 19.02.2009 he had conducted

post mortem on the dead body of Mahadevappa in between 12.30

p.m., to 2.00 p.m., and he noticed the following external injuries:

1. “Cut Lacerated wound on the forehead between the

eye brows measuring 6 x 2 x bone deep underlying

major bones fractured.

2. Lacerated wound on the face left side at the angle

of the mouth, margins irregular underlying upper jaw

bone fracture and loosening of teeths left side cheek

bone also fractured.

3. Cut lacerated wound on chin measuring 5 x 3 cm

x bone deep, evidence of bleeding was present,

underlying mandible bone was fractured.

4. Cut lacerated wound on the frontal region of the scalp

and forehead in the middle measuring 10 x 3 cm x

bone deep clot formation present.

5. Cut lacerated wound scalp on left side frontal region

measuring 10 cm x 4 cm x bone deep clot formation

present.

6. Cut lacerated wound on scalp on the top slightly to

the right side 12 cm x 4 cm x bone deep, evidence

of haemorrhage or bleeding present clot formation

present.

7. Punctual wound on the right side of leg below the

right knee measuring 6 x 5 x 3 cm underlying leg

bone fracture.

8. Fracture of 3rd, 4th, 5th ribs on the anterior side on

right side of chest wall. All the above injuries are

ante mortem in nature.”

16. He further states that, in his opinion cause of death is shock and

haemorrhage to the brain due to injury and multiple fracture injuries.

334 [2024] 4 S.C.R.

Digital Supreme Court Reports

17. Nothing could be elicited in his cross-examination and P.W.12 Dr

Balachandra Joshi stood firm on the aspect of the homicidal death

of Mahadevappa.

18. As stated above, even the appellants are not seriously disputing

the homicidal death of Mahadevappa. Insofar as their presence and

active role played by them is concerned, P.W.21 Sangeeta provides

all the necessary details in her testimony about the morning incident

i.e., prequel and about the actual incident which took place in the

evening. Though she was subjected to a detailed cross-examination,

her version remains to be unshaken and appears to be a truthful

version of the incident.

19. Similarly, P.W.19 Smt. Mallamma, who is the daughter of the

deceased Mahadevappa (elder sister of Sangeeta), P.W.22

Sharanappa (s/o Mahadevappa and brother of Sangeeta), P.W.23

Hanumanth (brother of Sangeeta, Mallamma and Sharanappa), also

supported the case of prosecution on the aspect of the presence

and active role played by the appellants causing the homicidal

death of Mahadevappa.

20. P.W.29 – Dr. Basawaswamy, supported the case of the prosecution

on the aspect of Sharanappa and Sangeeta receiving the injuries.

21. Dr. Basawaswamy in his testimony states that on 18.02.2009 he

examined Sharanappa s/o Mahadevappa who was injured. He came

to the hospital with a history of assault and on his examination Dr.

Basawswamy noticed the following injuries:

1. “2 x 1 cm incised wound over the dorsal aspect of right

little finger bleeding present, margins are clean cut.

2. Swelling present over the dorsa aspect of the right

hand.

3. Abrasion over the dorsal aspect of right forearm size

3 x 3 cm.

Taken X ray of right hand, crack fracture of 5th

metacarpal bone.

Wound No.2 is pre4vious in nature, other wounds

are simple in nature might have been cause by

sharp and blunt object. Age of the injury about less

than 4 hours.”

[2024] 4 S.C.R. 335

Subhash @ Subanna & Ors. v.

State of Karnataka Ministry of Home Affairs

22. Similarly, on the very same day, he examined another injured by

name Sangeeta D/o Mahadevapa and noticed the following injuries:

1. “Tenderness present over the left elbow.

2. Contusion over the posterior aspect of lower 1/3rd of

left arm measuring 3 x 2 cm.

3. Tenderness present over the left palm.

4. Tenderness present over the posterior aspect of left

shoulder.

23. Thus, version of Dr. Basawaswamy supports the case of the

prosecution on the aspects i.e., the presence of the prosecution

witnesses Sharanappa and Sangeeta on the spot and their attempt

to interfere to save their father Mahadevappa from the attack of the

accused/appellants, and receiving injuries in that process.

24. Now, although the learned counsel for the appellants vehemently

submitted before us that the act of the appellants was in exercise of

the right of private defence and as such, offence under Section 302

of Indian Penal code is not attracted against them, we are, however,

unable to accept this submission on appreciation of the evidence.

25. P.W.21 the star witness of the prosecution i.e., Kumari Sangeeta – the

complainant and injured eyewitness, clearly states about the incident

(prequel) which took place in the morning i.e., a quarrel between

herself and accused No.2 initially and then abuses by accused

Nos.1 and 3 to her. Then she states that on return of her father

Mahadevappa to their home in the evening, she apprised him about

the morning incident, after which Mahadevappa then proceeded to

house of the accused to make inquiry about the incident and that he

was immediately followed by her and her younger brother after which

she speaks about the role played by each of the accused–appellants.

26. She states that appellant No.1 thrashed her father with stick on his

head, appellant No.2 assaulted her father with chopper (koita) on his

head and forehead, then accused No.4 threw a stone on his right

knee and he picked up another stone and punched it on the mouth

of her father. Her mother Shobhavati and her brothers also stated

about the active role played by the accused–appellants.

27. P.W.25 Shivasharanappa though he had not witnessed the evening

incident, but he stated about the morning incident i.e., the quarrel 

336 [2024] 4 S.C.R.

Digital Supreme Court Reports

between the complainant and accused on account of blocking the

way.

28. As stated above, on careful scrutiny of the version of the witnesses,

it clearly shows that though it was the submission of the counsel for

the appellants that the deceased himself went to the house of the

accused and picked up a quarrel with the accused persons upon

provocation by the deceased, the appellants exercised their right

of private defence, yet on the assessment of the evidence of the

prosecution, we were unable to find any such provocation by the

deceased Mahadevappa.

29. The evidence clearly show that Mahadevappa was alone, he went

to the house of appellants to make an inquiry, but he had not

entered in his house and on the contrary, accused No.1 Subhash

s/o Shivaray Natikar thrashed the deceased using stick on the head

of Mahadevappa. Accused No. 2 – Dattatrey s/o Subhash Natikar

thrashed the head of Mahadevappa using chopper. Using a dangerous

weapon like chopper (koita), he assaulted Mahadevappa on his

head and forehead. As if this was not sufficient enough, accused

No.4 –Digambar threw a stone on the right knee of Mahadevappa

and then picking up another stone hit it on the face of deceased.

30. The prosecution evidence further reveals that neither Sharanappa

nor Sangeeta were carrying any weapon. Even though the evidence

further reveals that there was a verbal exchange, but there is nothing

to show that this verbal exchange was in the form of a provocation

by the deceased to the appellants.

31. Though the learned counsel for the appellants raised this ground

before this Court, no such ground is raised either at the time of

examination of the witnesses or even in 313 statements of the

appellants, i.e. at the trial stage.

32. The learned counsel for the appellants also made an attempt to submit

before us that the prosecution failed to show that the appellants were

carrying any intention to lay an assault on the deceased Mahadevappa

as Mahadevappa himself went to the house of appellants.

33. We are unable to accept even this submission. The evidence clearly

shows that there was a dispute on account of the way on 18.02.2009

leading to quarrel between P.W.21-Sangeeta and accused No.2

initially and then accused No.1 and 3 abused Sangeeta. Mahadevappa 

[2024] 4 S.C.R. 337

Subhash @ Subanna & Ors. v.

State of Karnataka Ministry of Home Affairs

proceeded to the house of accused persons for making an enquiry,

as he was appraised by Sangeeta when he returned to their home.

The evidence also shows that accused no.1 was armed with stick,

accused no.2 was armed with chopper and accused no.4 picked up

the stones lying on the spot.

34. P.W.22 Sharanappa clearly states in his deposition before the Court

that the appellant no.2 who was armed with chopper threatened his

father by uttering the words “I shall finish you” and then assaulted

his father with the chopper. Thus, the evidence of these injured

eyewitnesses clearly shows that the intention of the accused person

was to do away with Mahadevappa. It may not be out of place to

state here that the High Court while considering the submission on

this aspect of exercising their right of private defence referred to the

judgement in the case of Darshan Singh v. State of Punjab and

Another1 relied on by the learned counsel for the appellant. The

apex Court in this judgment observed in para 33 as follows:

“The basic principle underlying the doctrine of right of private

defence is that when an individual or his property is faced

with a danger and immediate aid from the State machinery

is not readily available, that individual is entitled to protect

himself and his property. The right of private defence is

available only to one who is suddenly confronted with

the necessity of averting an impending anger not of selfcreation. That being so, the necessary corollary is that the

violence which the citizen defending himself or his property

is entitled to use must not be unduly disproportionate to the

injury which is sought to be averted or which is reasonably

apprehended and should not exceed its legitimate purpose.”

Now, if this principle is applied and the facts of the present case are

appreciated, it is clear that the victim Mahadevappa was unarmed,

whereas the accused persons who were armed led a brutal attack

on the victim Mahadevappa by stick, by koita and stone.

35. The learned advocate for the State was justified in placing reliance

on the judgment of this Court in the matter of Virsa Singh v. State

of Punjab.2

 The relevant paras are as follows:

1 [2010] 1 SCR 642 : AIR 2010 SC 1212

2 [1958] 1 SCR 1495 : AIR 1958 SC 465

338 [2024] 4 S.C.R.

Digital Supreme Court Reports

"13. In considering whether the intention was to inflict

the injury found to have been inflicted, the enquiry

necessarily proceeds on broad lines as, for example,

whether there was an intention to strike at a vital

or a dangerous spot, and whether with sufficient

force to cause the kind of injury found to have been

inflicted. It is, or course, not necessary to enquire

into every last detail as, for instance, whether the

prisoner intended to have the bowels fall out, or

whether he intended to penetrate the liver or the

kidneys or the heart. Otherwise, a man who has no

knowledge of anatomy could never be convicted, for,

if he does not know that there is a heart or a kidney

or bowels, he cannot be said to have intended to

injure them. Of course, that is not the kind of enquiry.

It is broad-based and simple and based on common

sense: the kind of enquiry that “twelve good men

and true” could readily appreciate and understand.

14. To put it shortly, the prosecution must prove the

following facts before it can bring a case under

Section 300 “thirdly”.

15. First, it must establish, quite objectively, that a bodily

injury is present.

16. Secondly, the nature of the injury must be proved;

These are purely objective investigations.

17. Thirdly, it must be proved that there was an intention

to inflict that particular bodily injury, that is to say, that

it was not accidental or unintentional, or that some

other kind of injury was intended.

18. Once these three elements are proved to be present,

the enquiry proceeds further and.

19. Fourthly, it must be proved that the injury of the type

just described made up of the three elements set

out above is sufficient to cause death in the ordinary

course of nature. This part of the enquiry is purely

objective and inferential and has nothing to do with

the intention of the offender.

[2024] 4 S.C.R. 339

Subhash @ Subanna & Ors. v.

State of Karnataka Ministry of Home Affairs

20. Once these four elements are established by the

prosecution (and, of course, the burden is on the

prosecution throughout) the offence is murder under

Section 300 “thirdly”. It does not matter that there was

no intention to cause death. It does not matter that

there was no intention even to cause an injury of a

kind that is sufficient to cause death in the ordinary

course of nature (not that there is any real distinction

between the two). It does not even mater that there is

no knowledge that an act of that kind will be likely to

cause death. Once the intention to cause the bodily

injury actually found to be present is proved, the rest

of the enquiry is purely objective and the only question

is whether, as a matter of purely objective inference,

the injury is sufficient in the ordinary course of nature

to cause death. No one has a licence to run around

inflicting injuries that are sufficient to cause death

in the ordinary course of nature and claim that they

are not guilty of murder. If they inflict injuries of that

kind, they must face the consequences: and they

can only escape if it can be shown, or reasonably

deduced, that the injury was accidental or otherwise

unintentional (emphasis supplied).”

36. Accordingly, considering all the aspects, we are of the opinion that

the High Court of Karnataka committed no error in upholding and

confirming the judgment and order of Trial Court/Sessions Court, we

see no ground to interfere, the appeal thus fails and is dismissed.

37. The order dated 31.07.2018 of this Court by which bail was granted

to the appellants is hereby recalled. The appellants are directed to

surrender before the Trial Court within a period of four weeks from

today.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal dismissed.

Evidence – Burden of proof – Discharge of, by the accused, when: [2024] 4 S.C.R. 323 Bhupatbhai Bachubhai Chavda & Anr. v. State of Gujarat Held: Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden – In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused – In the absence of the statutory provisions the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt [Para 7]

* Author

[2024] 4 S.C.R. 322 : 2024 INSC 295

Bhupatbhai Bachubhai Chavda & Anr.

v.

State of Gujarat

(Criminal Appeal No. 334 of 2019)

10 April 2024

[Abhay S. Oka* and Ujjal Bhuyan, JJ.]

Issue for Consideration

High Court, if justified in overturning the order of acquittal.

Headnotes

Code of Criminal Procedure, 1973 – s. 378 – Appeal against

acquittal – Interference by the appellate court, when:

Held: Appellate Court can interfere with the order of acquittal only

if it is satisfied after re-appreciating the evidence that the only

possible conclusion was that the guilt of the accused had been

established beyond a reasonable doubt – Appellate Court cannot

overturn order of acquittal only on the ground that another view is

possible – Judgment of acquittal must be found to be perverse –

Unless the Appellate Court records such a finding, no interference

can be made with the order of acquittal – On facts, the High Court

converted the acquittal of the appellants into conviction for offence

punishable u/ss. 302/34 and s. 323 – High Court did not avert, if

the view taken by the trial court was a plausible view that could

have been taken based on evidence on record – High Court ignored

that an order of acquittal further strengthens the presumption of

innocence of the accused – High Court’s finding on the burden of

proof is completely erroneous – Finding of the trial court that the

evidence of the prosecution witness did not inspire confidence is

a possible finding which could have been recorded on the basis

of the evidence on record – No reason for the High Court to

overturn the order of acquittal when the findings of the trial court

were possible findings that could be arrived at after re-appreciating

evidence – Thus, the order of acquittal of the appellants upheld –

Judgment and order of the High Court set aside, and that of the

trial court restored – Penal Code, 1860 – ss. 302 rw 34 and s.

323. [Paras 6, 7, 10, 11]

Evidence – Burden of proof – Discharge of, by the accused,

when:

[2024] 4 S.C.R. 323

Bhupatbhai Bachubhai Chavda & Anr. v. State of Gujarat

Held: Unless, under the relevant penal statute, there is a negative

burden put on the accused or there is a reverse onus clause,

the accused is not required to discharge any burden – In a case

where there is a statutory presumption, after the prosecution

discharges initial burden, the burden of rebuttal may shift on the

accused – In the absence of the statutory provisions the burden

was on the prosecution to prove the guilt of the accused beyond

a reasonable doubt [Para 7]

List of Acts

Code of Criminal Procedure, 1973; Penal Code, 1860.

List of Keywords

Appeal against acquittal; Re-appreciate the evidence; Plausible

view; Appellate Court; Burden of proof; Negative burden; Reverse

onus clause; Statutory presumption; Discharge initial burden.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 334

of 2019

From the Judgment and Order dated 14.12.2018 of the High Court

of Gujarat at Ahmedabad in CRLA No. 838 of 1997

Appearances for Parties

D.N. Ray, Sr. Adv., Dillip Kumar Nayak, Ms. Disha Ray, Mrs. Sumita

Ray, Advs. for the Appellants.

Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Abhay S. Oka, J.

FACTUAL ASPECTS

1. The appellants, who are father and son, were prosecuted for the

offence punishable under Section 302, read with Section 34 of the

Indian Penal Code (IPC). The incident occurred on 17th September

1996. The allegation is that the appellants assaulted one Punjabhai

(the deceased) with pipes and sticks. The deceased suffered a 

324 [2024] 4 S.C.R.

Digital Supreme Court Reports

large number of injuries and ultimately succumbed to the injuries.

By judgment dated 5th July 1997, the Sessions Court acquitted

the appellants. Being aggrieved by the judgment of the Sessions

Court, the respondent - State of Gujarat preferred an appeal against

acquittal before the High Court. By the impugned judgment dated

14th December 2018, the High Court interfered and converted the

acquittal of the appellants into a conviction for the offence punishable

under Section 302, read with Section 34 and Section 323 of the IPC.

By order dated 6th January 2020, this Court directed that the present

appeal be listed for hearing. By order dated 18th May 2021, the

application for suspension of sentence and grant of bail by the first

appellant was rejected by this Court. However, this Court continued

the order dated 21st January 2019 by which exemption was granted

to the second appellant from surrendering.

2. The prosecution case in brief is that PW-1 Danabhai is the brother

of the deceased. He had two brothers. The deceased was engaged

in the business of diamond polishing. At about 9.45 pm on 17th

September 1996, when PW-1 was sitting in his pan-bidi shop,

one Vajsurbhai came to him by motorcycle and told him that the

appellants had assaulted the deceased. On hearing this news, PW-1

went towards village Jhanjhmer. He met his uncle Ramabhai on the

outskirts of the village, who was taking the deceased to the hospital

by a tempo. According to the prosecution case, Karshanbhai (PW-4),

Dayabhai, Jivabhai and other villagers were sitting in the tempo. The

deceased was taken to the clinic of Dr. Goti at Dhola village. As per

his advice, the deceased was immediately shifted to Bhavnagar in

a private hospital. The deceased succumbed to the injuries in the

early morning of 18th September 1996.

3. The Trial Court disbelieved the testimony of PW-4 Karshanbhai for

various reasons. In the impugned judgment, the High Court noted

that though, according to the case of PW-4, he received injuries on

17th September 1996 at the hands of the accused, Dr Jagdishbhai

(PW-5) deposed that PW-4 informed him that he suffered injuries on

18th September 1996. The High Court, in the impugned judgment,

held that in his police statement, PW-4, had correctly stated that he

was injured on 18th September 1996. Therefore, the statement he

gave before the Court and the statement given by the doctor were

meaningless. The High Court held that although the number of

persons who witnessed the incident have not been examined, the 

[2024] 4 S.C.R. 325

Bhupatbhai Bachubhai Chavda & Anr. v. State of Gujarat

appellants failed to adduce any evidence to falsify the prosecution’s

version. By the impugned judgment, after overturning the acquittal

of the appellants, the High Court sentenced them to undergo life

imprisonment.

SUBMISSIONS

4. The learned senior counsel appearing for the appellants pointed

out that the High Court, while overturning the order of acquittal,

had relied upon the police statement of PW-4 and had erroneously

put the burden on the appellants to adduce evidence to show

their innocence. He submitted that the entire approach of the High

Court while dealing with an appeal against acquittal, is completely

erroneous. He submitted that there is no finding recorded by the High

Court that the only possible view which could be taken based on the

evidence was that the guilt of the appellants had been proved. The

learned senior counsel submitted that the High Court had erred in

overturning the order of acquittal.

5. The learned counsel appearing for the State vehemently submitted

that in an appeal against acquittal, the High Court was duty-bound

to reappreciate the evidence, and after finding that evidence of PW4, an eye-witness, completely inspires confidence, the High Court

rightly interfered with the order of acquittal.

OUR VIEW

6. It is true that while deciding an appeal against acquittal, the Appellate

Court has to reappreciate the evidence. After re-appreciating the

evidence, the first question that needs to be answered by the Appellate

Court is whether the view taken by the Trial Court was a plausible view

that could have been taken based on evidence on record. Perusal of

the impugned judgment of the High Court shows that this question

has not been adverted to. Appellate Court can interfere with the order

of acquittal only if it is satisfied after reappreciating the evidence that

the only possible conclusion was that the guilt of the accused had

been established beyond a reasonable doubt. The Appellate Court

cannot overturn order of acquittal only on the ground that another

view is possible. In other words, the judgment of acquittal must be

found to be perverse. Unless the Appellate Court records such a

finding, no interference can be made with the order of acquittal.

The High Court has ignored the well-settled principle that an order

of acquittal further strengthens the presumption of innocence of the 

326 [2024] 4 S.C.R.

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accused. After having perused the judgment, we find that the High

Court has not addressed itself on the main question.

7. The second error the High Court committed is found in paragraph 23

of the impugned judgment. The High Court has gone to the extent of

recording a finding that the appellants have failed to adduce evidence

in their support, failed to examine the defence witness and failed

to establish falsity of the prosecution’s version. This concept of the

burden of proof is entirely wrong. Unless, under the relevant penal

statute, there is a negative burden put on the accused or there is a

reverse onus clause, the accused is not required to discharge any

burden. In a case where there is a statutory presumption, after the

prosecution discharges initial burden, the burden of rebuttal may

shift on the accused. In the absence of the statutory provisions as

above, in this case, the burden was on the prosecution to prove the

guilt of the accused beyond a reasonable doubt. Therefore, the High

Court’s finding on the burden of proof is completely erroneous. It is

contrary to the law of the land.

8. We have carefully examined the evidence of the material prosecution

witnesses. PW-1 Danabhai stated that after he was informed in the

night around 9 O’clock about the assault on the deceased by one

Vajsurbhai, he proceeded by his bicycle. He stated that when he

reached Jhanjhmer, he found that his deceased brother was laid in

a tempo of Ramabhai. He stated about the presence of Arjanbhai

and Jivabhai. He stated that no one informed him about the incident

at that time. He thereafter described how the deceased was taken

to the hospital of Dr Goti and thereafter to a private hospital in

Bhavnagar. PW-1 deposed that PW-4 Karshanbhai went with him

to Bhavnagar, and in the hospital of Dr Rana, PW-4 informed PW-1

that the appellants had assaulted the deceased by using a stick. He

stated that though PW-4 informed him that he was present at the

time of the incident, he did not tell him about the assault on him by

the accused. Thus, PW-1 did not state that PW-4 was present when

he reached the place where he found that the deceased was laid in

a tempo, and according to his version, PW-4 came to Bhavnagar.

Though PW-4 stated that PW-1 came on a bicycle and came to Dhola

with them, the version of PW-1 is that PW-4 joined him at Bhavnagar.

This creates a doubt about the presence of PW-4 at the time of the

incident. Importantly, one Vajsurbhai, who informed PW-1 about the

assault on the deceased, has not been examined as a witness. 

[2024] 4 S.C.R. 327

Bhupatbhai Bachubhai Chavda & Anr. v. State of Gujarat

9. PW-4 admitted that there is an ongoing litigation about his family’s land

between the appellants and his family. PW-4 claimed that just before

the fatal blow was inflicted on the deceased, a blow was given to the

witness by pipe around 8 pm on the date of the incident. However,

PW-5 Dr Jagadishbhai stated that when he examined PW-4 on 19th

September 1996, the history given by PW-4 was to the effect that he

was assaulted by a pipe on 18th September 1996 at 8.00 pm. The

incident is of 17th September 1996. The High Court has completely

brushed aside this statement of PW-5 by observing that once the

police recorded statements of the Doctor and PW-4, the statements

of PW-4 and the Doctor before the Court became meaningless. As

is apparent from Section 162 of the Code of Criminal Procedure,

1973 (CrPC), statements recorded by police under Section 161 of

the CrPC cannot be used for any purpose except to contradict the

witness. The Trial Court gives several reasons for discarding the

testimony of PW-4. His prior enmity with the appellants and his

failure to report the incident to the police, notwithstanding available

opportunities, are also the factors considered by the Trial Court.

10. Therefore, after having perused the evidence of the material

prosecution witnesses, in our view, the finding of the Trial Court

that the evidence of PW-4 did not inspire confidence is a possible

finding which could have been recorded on the basis of the evidence

on record. There was no reason for the High Court to overturn the

order of acquittal when the findings of the Trial Court were possible

findings that could be arrived at after reappreciating evidence.

11. Therefore, the appeal must succeed. We set aside the judgment and

order dated 14th December 2018 of the High Court and set aside

the conviction of the appellants. The judgment and order dated 5th

July 1997 of the Trial Court is restored. The appeal is, accordingly,

allowed. The bail bonds of the appellant no.2 are cancelled. The

appellant no.1 shall be forthwith set at liberty unless he is required

to be detained in connection with any other case.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal allowed.

Penal Code, 1860 – Criminal Conspiracy – Two or more person agrees to, cause to be done i) an Illegal act ii) an act which is not illegal by illegal means – No agreement except an agreement to commit an offence shall amount to Criminal conspiracy – Cheating – An act to cheat and thereby dishonestly induce the person so deceived to deliver any property and fraudulent or dishonest intention at the time of making the representation or promise.

* Author

[2024] 4 S.C.R. 308 : 2024 INSC 284

Vipin Sahni and Another

v.

Central Bureau of Investigation

(Criminal Appeal No. 1980 of 2024)

08 April 2024

[Aniruddha Bose and Sanjay Kumar*, JJ]

Issue for Consideration

Whether it is open for High Court to convert or treat a petition

filed under section 482 Cr.P.C., as one filed under section 397

Cr.P.C.

Headnotes

Code of Criminal Procedure, 1973 – ss.482 and 397 –

Special Judicial Magistrate while exercising the power given

under section 239 Cr.P.C. discharged the appellants – CBI

approached the High Court under section 482 Cr.P.C. –

High Court set aside the discharge order and directed the

learned Special Judicial Magistrate to proceed with the case

– Appellants preferred appeal against the said impugned

order – Order of the High court is set aside.

Held: When the specific remedy of revision under section 397

Cr.P.C. is available, it could not have been ignored – A petition

under section 482 Cr.P.C. cannot be filed as an alternative of

revision. [Para. 25]

Penal Code, 1860 – Criminal Conspiracy – Two or more person

agrees to, cause to be done i) an Illegal act ii) an act which is not

illegal by illegal means – No agreement except an agreement

to commit an offence shall amount to Criminal conspiracy –

Cheating – An act to cheat and thereby dishonestly induce the

person so deceived to deliver any property and fraudulent or

dishonest intention at the time of making the representation

or promise.

Held: The sine qua non to make out an offence under section

420 IPC is an act on part act to cheat and thereby dishonestly

induce the person so deceived to deliver any property and

fraudulent or dishonest intention at the time of making the

representation or promise and such culpable intention should 

[2024] 4 S.C.R. 309

Vipin Sahni and Another v. Central Bureau of Investigation

be there at the time of entering into the agreement – Ingredients

required to constitute an offence of cheating are (i) there

should be fraudulent or dishonest inducement of a person by

deceiving him; (ii) (a) the person so deceived should be induced

to deliver any property to any person, or to consent that any

person shall retain any property; or (b) the person so deceived

should be intentionally induced to do or omit to do anything

which he would not do or omit if he were not so deceived; and

(iii) in cases covered by (ii) (b), the act or omission should be

one which causes or is likely to cause damage or harm to the

person induced in body, mind, reputation or property. [Paras

9, 10, 19, 20 and 26]

Inherent power of the court – Can be exercised when there

is no remedy provided in the Code of Criminal Procedure for

redressal of the grievance.

Held: As per the Article 131 in the Schedule to the Limitation

Act, 1963, the limitation period for filing a criminal revision under

Section 397 Cr.P.C. is 90 days – However, there is no limitation

prescribed for invocation of the inherent powers of the High Court

under Section 482 Cr.P.C – It is well settled that the inherent

power of the Court can ordinarily be exercised when there is no

express provision in the Code under which order impugned can

be challenged – When a revision is lawfully instituted before the

High Court but the same is thereafter found to be not maintainable

on some other ground, it would be open to the High Court to

treat the same as a petition filed under Section 482 Cr.P.C in

order to do justice in that case – However, the reverse analogy

may not apply in all cases and it would not be open to the High

Court to blindly convert or treat a petition filed under Section 482

Cr.P.C as one filed under Section 397 Cr.P.C., without reference

to other issues, including limitation. [Paras 23 and 25]

Case Law Cited

Ram Jas v. State of U.P. [1971] 2 SCR 178 : (1970) 2

SCC 740; V.P. Shrivastava v. Indian Explosives Limited

and others [2010] 11 SCR 788 : (2010) 10 SCC 361

– Followed.

Mohit alias Sonu and another v. State of U.P. and another

[2013] 7 SCR 86 : (2013) 7 SCC 789 – Relied on.

310 [2024] 4 S.C.R.

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List of Acts

Code of Criminal Procedure, 1973; Penal Code, 1860; AICTE

Approval Process 2006.

List of Keywords

Inherent Power of the Court, Revision, Criminal Conspiracy,

Cheating, Discharge.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1980

of 2024

From the Judgment and Order dated 20.01.2023 of the High Court

of Judicature at Allahabad in A482 No. 11426 of 2021

Appearances for Parties

Mukul Rohatgi, Jaideep Gupta, Sr. Adv., Samir Rohtagi, Ajay Singh,

Ms. Alka Sinha, Anuvrat Sharma, Advs. for the Appellants.

Vikramjeet Banerjee, A.S.G., Mukesh Kumar Maroria, Padmesh

Mishra, Arkaj Kumar, Anukalp Jain, Ms. Bani Dikshit, Merusagar

Samantaray, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Sanjay Kumar, J.

1. Leave granted.

2. Exercising power under Section 239 Cr.P.C, the learned Special

Judicial Magistrate, CBI Court, Ghaziabad, discharged the appellants

herein of a charge under Sections 420 and 120B IPC, vide order

dated 31.08.2019 in Case No. 456 of 2012 arising out of RC-219

2011 (E) 0016 registered on the file of Police Station CBI, EO-1, New

Delhi. Aggrieved thereby, the Central Bureau of Investigation (for

short, ‘CBI’) approached the High Court of Judicature at Allahabad,

under Section 482 Cr.P.C, by way of Application U/S 482 No. 11426

of 2021. By order dated 20.01.2023 passed therein, the High Court

set aside the discharge order and directed the learned Magistrate

to proceed with the case against the appellants. Assailing the said

order, they are before this Court.

[2024] 4 S.C.R. 311

Vipin Sahni and Another v. Central Bureau of Investigation

3. The appellants had established Sunshine Educational and

Development Society, NOIDA, Uttar Pradesh, and registered it

under the Societies Registration Act in the year 2004. The aims and

objectives of this Society, inter alia, included propagation of technical

education. Appellant No. 1 was the Chairman of the said Society

while his wife, viz., appellant No. 2, was its Secretary. In September,

2006, the Society acquired 4.90 acres of land in Greater NOIDA,

Uttar Pradesh, on a 90-year lease from Greater Noida Industrial

Development Authority, Gautambudh Nagar, Uttar Pradesh, for

setting up educational institutions. The Society filed application dated

22.01.2007 seeking approval of the All India Council for Technical

Education (AICTE) to establish ‘Business School of Delhi’, offering a

Post-Graduate Diploma Course in Business Management (PGDM),

in an extent of one acre out of the leased land. In the application,

the Society disclosed that a loan of ₹5.75 Crore had been availed

by it from Corporation Bank and that the outstanding loan stood at

above ₹3 Crore. It also disclosed, in response to clause 6(v), that a

loan/mortgage had been raised against the land, by ticking the ‘Yes’

box. However, in the tabular form in the first page, against the query

– ‘Mortgaged with Bank - Yes/No’, the answer was stated as ‘No’.

There was, thus, an apparent contradiction in the application itself.

In any event, approval was accorded by the AICTE on 17.08.2007

to start the ‘Business School of Delhi’.

4. Thereafter, the Society submitted another application to the AICTE

on 27.10.2007 seeking to establish ‘Business School for Women’,

offering PGDM course. A day later, on 28.10.2007, the Society filed

yet another application seeking approval from the AICTE to start a

third institute, named ‘International Business School of Delhi’. The

first and third applications were moved on behalf of the Society by

appellant No. 1, being its Chairman, while the second application was

filed by appellant No. 2, as its Secretary. In the two later applications,

the Society failed to mention that the leased land was mortgaged

but it disclosed the fact that it had already been granted approval in

the year 2007 to operate another institute from the same premises.

By proceedings dated 29.05.2008, the AICTE granted approval for

starting the ‘Business School for Women’ in an extent of 0.8 acres

out of the said land. On 19.06.2008, the AICTE accorded approval

to commence the ‘International Business School of Delhi’ in the

leased land.

312 [2024] 4 S.C.R.

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5. While so, it appears that an anonymous complaint was made to the

Chief Vigilance Commissioner alleging that officials of the AICTE

had shown undue favour to the Society. On the strength thereof,

the Chief Vigilance Commissioner referred the matter to the CBI for

investigation. In the first instance, the Regional Officer of the CBI at

Kanpur addressed letter dated 24.07.2011 to the Station-in-charge,

Police Station Greater NOIDA, to register a case for investigation but

the District Police of Gautambudh Nagar, Uttar Pradesh, opined that

the complaint did not justify registering of a FIR and/or proceeding

with investigation as no cognizable offence was made out.

6. However, on 30.11.2011, Case Crime No. 219 2011 (E) 0016 was

registered on the file of PS CBI, EO-1, New Delhi, under Sections

420 and 120B IPC along with Section 13(2) read with Section 13(1)

(d) of the Prevention of Corruption Act, 1988. This FIR was registered

against the appellants and unnamed officials of the AICTE, alleging

that the appellants had obtained approval by deceitful means from

the AICTE, in violation of Section 4.2(iii) of the AICTE Approval

Process 2006. As per this provision, the land approved for starting an

educational institution ought not to be encumbered. After completion

of the investigation, Charge Sheet No. 11 of 2012 was filed by the

CBI for offences under Sections 420 and 120B IPC, naming only

the appellants as the accused. No official of the AICTE was charged

with criminality in granting approval to the Society’s institutions.

7. Aggrieved by their arraignment, the appellants approached the High

Court at Allahabad under Section 482 Cr.P.C, vide Application U/S

482 No. 37398 of 2012, seeking quashing of the criminal proceedings

against them. By order dated 14.02.2013, the High Court accepted

their plea and quashed the said proceedings. However, upon the

CBI approaching this Court in Criminal Appeal No. 239 of 2015, by

order dated 05.02.2018 passed therein, this Court set aside the

order dated 14.02.2013 but made it clear that the Trial Court would

be at liberty to go into the merits of the issue raised at the stage

of framing of charges. Thereafter, on 02.07.2018, the Trial Court

granted bail to the appellants.

8. On 25.09.2018, the appellants moved an application for discharge

before the learned Special Judicial Magistrate, CBI Court, Ghaziabad,

but the learned Magistrate rejected their plea by order dated

15.02.2019 and directed the matter to be listed for framing of charges. 

[2024] 4 S.C.R. 313

Vipin Sahni and Another v. Central Bureau of Investigation

The appellants, thereupon, preferred Criminal Revision No. 101 of

2019 before the learned Additional Sessions Judge, Ghaziabad,

under Section 397 Cr.P.C. The revision was allowed by the learned

Additional Sessions Judge, vide order dated 29.05.2019, whereby the

order passed by the learned Magistrate was set aside and the matter

was remanded for hearing afresh, in the light of the observations

made in the revisional order. In consequence, the learned Magistrate

reheard the case and passed order dated 31.08.2019, discharging

the appellants from the alleged offence under Sections 420 and 120B

IPC. Nearly one and a half years after the passing of this discharge

order, i.e., on 21.02.2021, the CBI filed a petition under Section 482

Cr.P.C assailing it before the High Court at Allahabad. The petition

was taken on file as Application U/S 482 No. 11426 of 2021 and the

High Court allowed the same by way of the impugned order, leading

to the present appeal.

9. Before we proceed to examine the case on merits, we may first take

note of relevant legal provisions. Section 415 IPC defines ‘Cheating’

and it reads thus: -

‘415. Cheating.-

Whoever, by deceiving any person, fraudulently or

dishonestly induces the person so deceived to deliver any

property to any person, or to consent that any person shall

retain any property, or intentionally induces the person so

deceived to do or omit to do anything which he would not

do or omit if he were not so deceived, and which act or

omission causes or is likely to cause damage or harm to

that person in body, mind, reputation or property, is said

to “cheat”.

Explanation.- A dishonest concealment of facts is a

deception within the meaning of this section.’

Section 420 IPC, the provision we are concerned with presently,

reads as under: -

‘420. Cheating and dishonestly inducing delivery of

property.-

Whoever cheats and thereby dishonestly induces the

person deceived to deliver any property to any person, 

314 [2024] 4 S.C.R.

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or to make, alter or destroy the whole or any part of a

valuable security, or anything which is signed or sealed,

and which is capable of being converted into a valuable

security, shall be punished with imprisonment of either

description for a term which may extend to seven years,

and shall also be liable to fine.’

Sections 120A IPC and 120B IPC read thus: -

‘120A. Definition of criminal conspiracy.-

When two or more persons agree to do, or cause to be

done,

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such

an agreement

is designated a criminal conspiracy:

Provided that no agreement except an agreement to

commit an offence shall amount to a criminal conspiracy

unless some act besides the agreement is done by one

or more parties to such agreement in pursuance thereof.’

‘120B. Punishment of criminal conspiracy.-

(1) Whoever is a party to a criminal conspiracy to commit

an offence punishable with death, [imprisonment

for life] or rigorous imprisonment for a term of two

years or upwards, shall, where no express provision

is made in this Code for the punishment of such a

conspiracy, be punished in the same manner as if

he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than

a criminal conspiracy to commit an offence punishable

as aforesaid shall be punished with imprisonment of

either description for a term not exceeding six months,

or with fine or with both.]’

10. The sine qua non to make out an offence under Section 420 IPC,

insofar as the present case is concerned, is an act on the part of

the appellants to ‘cheat and thereby dishonestly induce the person

so deceived, viz., the AICTE, to deliver any property’. Therefore, the 

[2024] 4 S.C.R. 315

Vipin Sahni and Another v. Central Bureau of Investigation

appellants, while applying for and on behalf of the Society, should

have either suppressed material information or projected incorrect

information so as to induce the AICTE, by such dishonest means, to

grant approval for its educational institutions. Further, as no official

of the AICTE has been implicated in the offence, as per the charge

sheet, the alleged ‘criminal conspiracy’ under Section 120B IPC

would also be attributable to the appellants only.

11. Viewed in this light, we may note that the first application dated

22.01.2007 submitted by appellant No. 1 for starting ‘Business

School of Delhi’ clearly mentioned the fact that a part of the leased

land admeasuring about 5 acres was to be used for setting up this

institution and that a term loan of ₹5.75 crore had been raised from

the Corporation Bank. The repayable outstanding loan was also

shown as above ₹3 crore. Clause 6 of the application dealt with

‘Land’ and it was stated thereunder that the government’s leased

land of about 5 acres was intended to be used for establishing the

college. Clause 6(v) of the application and the Society’s response

thereto are extracted hereunder.

'(v) Any loans/mortgage raised against the titles of the

land

Yes  No’

12. Further, as already noted, the AICTE deemed it fit to grant approval

on 17.08.2007 to start this institution. This was despite the AICTE’s

‘Approval Process 2006’ providing that the land should have been

registered in the name of the applicant’s society/trust on or before

the date of submission of the proposal, free from any encumbrances.

However, no official of the AICTE has been implicated in any

wrongdoing.

13. Coming to the Society’s second application for the ‘Business School

for Women’, the same extent of 5 acres was shown against clause 6

but there was non-disclosure of the mortgage of the land to secure

the outstanding bank loan. Under clause 6(v), the society failed to

state that a loan/mortgage had been raised against the title of the

land and tick-marked ‘No’ instead of ‘Yes’. Similarly, the application

for starting the ‘International Business School of Delhi’ also mentioned

the same extent of 5 acres of land but again, clause 6(v) contained

incorrect information as against the question whether any loan/

316 [2024] 4 S.C.R.

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mortgage had been raised against the title of the land. The word

‘No’ was tick-marked instead of ‘Yes’.

14. These are the actions which formed the foundation for the CBI’s case

against the appellants. As already stated hereinbefore, it was not the

AICTE that claimed that it was deceived and dishonestly induced to

grant approval owing to suppression of material information by the

appellants acting on behalf of the Society. It was a third party who

chose to remain anonymous that initiated the investigation. Further,

by not implicating any official of the AICTE in the charge sheet and

by dropping the provisions of the Prevention of Corruption Act, 1988,

the CBI found that the AICTE’s officials were not complicit at all and

they were given a clean chit.

15. At this stage we may note that, though the appellants were initially

successful in getting the proceedings quashed by the High Court,

this Court reversed the said order but left it open to the Trial Court

to examine the issue raised, on merits, at the time of framing of

charges. It is pursuant to the liberty granted by this Court that the

learned Special Judicial Magistrate, CBI Court, chose to exercise

power under Section 239 Cr.P.C and discharged the appellants. The

validity of that exercise was called in question before the High Court,

which ultimately held against the appellants.

16. Significantly, the High Court was not inclined to accept the preliminary

objection raised by the appellants to the effect that the CBI ought to

have filed a revision under Section 397 Cr.P.C against the discharge

order and could not maintain a petition under Section 482 Cr.P.C.

In this regard, the High Court observed that it could always treat a

petition filed under Section 482 Cr.P.C as a revision under Section

397 Cr.P.C and, therefore, the appellants’ objection had no substance.

On merits, the High Court opined that the appellants had deliberately

withheld relevant information knowing fully well that if the land was

encumbered in any manner, approval for setting up the educational

institutions there would be declined. Holding so, the High Court set

aside the discharge order.

17. We are, however, of the considered opinion that the finding of the High

Court as to deliberate withholding of information by the appellants

cannot be accepted on the given facts. It is a matter of record that

the first application dated 22.01.2007 filed by appellant No. 1 on

behalf of the Society disclosed that a bank loan was still outstanding 

[2024] 4 S.C.R. 317

Vipin Sahni and Another v. Central Bureau of Investigation

and that the subject land of nearly 5 acres had been mortgaged to

secure the loan. This was followed by scrutiny and verification by the

officials of the AICTE, including a spot inspection, following which,

approval for starting the ‘Business School of Delhi’ was accorded

on 17.08.2007. No wrongdoing has been attributed to the officials

of the AICTE in that regard. It was only the later application dated

27.10.2007 for the ‘Business School for Women’ and the application

dated 28.10.2007 for the ‘International Business School of Delhi’ that

did not state correct information with regard to the outstanding bank

loan and the mortgage of the land in connection therewith. However,

all three applications mentioned the extent of nearly 5 acres and the

AICTE could not be said to be in ignorance of the fact that the said

land was under an encumbrance at the time the applications were

made. Notably, both the later applications mentioned the fact that

an institution was already granted approval in 2007 to operate from

the same premises. This was obviously in reference to the ‘Business

School of Delhi’ and the application for the same did disclose the

subsistence of the loan and the encumbrance on the land.

18. That apart, it was not even the case of the AICTE that it was under

any illusions, whereby it was dishonestly induced to grant approval

for establishment of the colleges in question. The only party who

can speak of being ‘dishonestly induced to do or not do something’

is that party itself and when the AICTE made no such complaint,

it was not for others to insinuate that the AICTE was dishonestly

induced to do something.

19. In Ram Jas v. State of U.P.1

, the ingredients required to constitute

an offence of cheating were succinctly summed up thus: -

"(i) there should be fraudulent or dishonest inducement

of a person by deceiving him;

(ii) (a) the person so deceived should be induced to

deliver any property to any person, or to consent that

any person shall retain any property; or

(b) the person so deceived should be intentionally

induced to do or omit to do anything which he would

not do or omit if he were not so deceived; and

1 [1971] 2 SCR 178 : (1970) 2 SCC 740

318 [2024] 4 S.C.R.

Digital Supreme Court Reports

(iii) in cases covered by (ii) (b), the act or omission should

be one which causes or is likely to cause damage or

harm to the person induced in body, mind, reputation

or property.’

20. In V.P.Shrivastava vs. Indian Explosives Limited and others2

, this

Court observed that in order to constitute an offence of cheating,

it must be shown that the accused had a fraudulent or dishonest

intention at the time of making the representation or promise and

such a culpable intention should be there at the time of entering into

the agreement. On facts, it was found that the party alleged to have

been cheated was fully conscious of the situation at the time it decided

to enter into the contract and there was no dishonest inducement.

21. In the case on hand, there was disclosure of the fact that the subject

land was mortgaged to secure the bank loan but despite the same,

the AICTE granted approval for the ‘Business School of Delhi’ and it

never complained that it was under any misinformation in that regard.

Thus, the essential requisite to make out an offence of cheating is

lacking. Mere carelessness on the part of the appellants in filling up

the second and third applications and a part of the first application

also cannot be taken to be motivated by deliberate deception, on

the admitted factual position, so as to invite criminal charges.

22. Further, there is no evidence of the appellants consciously agreeing

or conspiring to deliberately furnish false information to the AICTE so

as to garner its approval for their colleges. As already noted, appellant

No.1 filed the first application, divulging the relevant details of the bank

loan and the mortgage over the leased land, but he failed to do so

in the third application filed by him. Appellant No.2 filed the second

application with the same non-disclosure but there is no evidence

whatsoever of the appellants resorting to deception in that regard

willfully and in connivance with each other. Therefore, the charge

under Section 120B IPC also does not withstand judicial scrutiny.

23. As regards the objection raised by the appellants as to the maintainability

of the CBI’s petition filed before the High Court under Section 482

Cr.P.C., we may note that, as per Article 131 in the Schedule to the

Limitation Act, 1963, the limitation period for filing a criminal revision

2 [2010] 11 SCR 788 : (2010) 10 SCC 361

[2024] 4 S.C.R. 319

Vipin Sahni and Another v. Central Bureau of Investigation

under Section 397 Cr.P.C, be it before the High Court or the Sessions

Court, is 90 days. However, there is no limitation prescribed for

invocation of the inherent powers of the High Court under Section 482

Cr.P.C. and it can be at any time. It is a matter of record that when

the learned Special Magistrate, CBI Court, dismissed the appellants’

discharge petition in the first instance, they had filed a revision before

the Sessions Court under Section 397 Cr.P.C. and the matter was

remanded for hearing afresh. However, the CBI did not choose to adopt

this course when the appellants’ discharge petition was allowed by the

learned Special Magistrate in the second round. Long after the expiry

of the limitation period of 90 days, the CBI filed a petition before the

High Court at Allahabad under Section 482 Cr.P.C. This was obviously

to get over the hurdle of the limitation for filing of a revision under

Section 397 Cr.P.C. In this regard, useful reference may be made to

the decision of this Court in Mohit alias Sonu and another vs. State

of U.P. and another3

, wherein it was observed thus:

‘28. So far as the inherent power of the High Court as

contained in Section 482 CrPC is concerned, the law

in this regard is set at rest by this Court in a catena of

decisions. However, we would like to reiterate that when

an order, not interlocutory in nature, can be assailed in

the High Court in revisional jurisdiction, then there should

be a bar in invoking the inherent jurisdiction of the High

Court. In other words, inherent power of the Court can be

exercised when there is no remedy provided in the Code of

Criminal Procedure for redressal of the grievance. It is well

settled that the inherent power of the Court can ordinarily

be exercised when there is no express provision in the

Code under which order impugned can be challenged.

29. Courts possess inherent power in other statute also like

the Code of Civil Procedure (CPC), Section 151 whereof

deals with such power. Section 151 CPC reads:

“151. Saving of inherent powers of court.—Nothing in

this Code shall be deemed to limit or otherwise affect the

inherent power of the court to make such orders as may

be necessary for the ends of justice or to prevent abuse

of the process of the court.”

3 [2013] 7 SCR. 86 : (2013) 7 SCC 789

320 [2024] 4 S.C.R.

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30. This Court in Padam Sen v. State of U.P. [AIR 1961

SC 218 : (1961) 1 Cri LJ 322] regarding inherent power

of the Court under Section 151 CPC observed: (AIR p.

219, para 8)

“8. … The inherent powers of the court are in addition to

the powers specifically conferred on the court by the Code.

They are complementary to those powers and therefore it

must be held that the Court is free to exercise them for the

purposes mentioned in Section 151 of the Code when the

exercise of those powers is not in any way in conflict with

what has been expressly provided in the Code or against

the intentions of the legislature. It is also well recognised

that the inherent power is not to be exercised in a manner

which will be contrary to or different from the procedure

expressly provided in the Code.”

31. In a Constitution Bench decision rendered in Manohar

Lal Chopra v. Seth Hiralal [AIR 1962 SC 527] , this Court

held that: (AIR p. 537, para 43)

“43. … The inherent jurisdiction of the court to make orders

ex debito justitiae is undoubtedly affirmed by Section 151 of

the Code, but [inherent] jurisdiction cannot be exercised so

as to nullify the provisions of the Code of Civil Procedure.

Where the Code of Civil Procedure deals expressly with a

particular matter, the provision should normally be regarded

as exhaustive.”

32. The intention of the legislature enacting the Code of

Criminal Procedure and the Code of Civil Procedure vis-à-vis

the law laid down by this Court it can safely be concluded that

when there is a specific remedy provided by way of appeal

or revision the inherent power under Section 482 CrPC or

Section 151 CPC cannot and should not be resorted to.’

24. In the light of the above edict, it was not open to the CBI to blithely

ignore the statutory remedy available to it under Section 397 Cr.P.C

and thereafter resort to filing of an application under Section 482

Cr.P.C.

25. We may also note that in the event a revision is lawfully instituted

before the High Court but the same is thereafter found to be not 

[2024] 4 S.C.R. 321

Vipin Sahni and Another v. Central Bureau of Investigation

maintainable on some other ground, it would be open to the High

Court to treat the same as a petition filed under Section 482 Cr.P.C

in order to do justice in that case. However, the reverse analogy may

not apply in all cases and it would not be open to the High Court

to blindly convert or treat a petition filed under Section 482 Cr.P.C

as one filed under Section 397 Cr.P.C., without reference to other

issues, including limitation. When the specific remedy of revision was

available to the CBI, it could not have ignored the same and filed a

petition under Section 482 Cr.P.C. We, therefore, find in favour of

the appellants even on this count.

26. On the above analysis we are of the opinion that the learned

Magistrate was fully justified in exercising power under Section 239

Cr.P.C. and discharging the appellants from criminal proceedings in

relation to Case No. 456 of 2012. The High Court adopted a rather

technical approach and practically concluded that the appellants

were guilty of deliberately withholding relevant information so as

to secure the approvals by deceitful means. This finding of the

High Court is not supported by the admitted facts, which indicate

disclosure of the mortgage at the outset when the first application

was made and, therefore, there is no possibility of inferring that the

appellants conspired in terms of Section 120A IPC to commit an

illegal act of suppression so as to secure the approvals. Further, the

AICTE itself never claimed that it was dishonestly induced to grant

such approvals and that essential link is altogether missing, whereby

any such criminal charge of cheating can be sustained against the

appellants. The impugned order dated 20.01.2023 passed by the

Allahabad High Court in Application U/S 482 Cr.P.C No. 11426 of

2021 is, therefore, set aside and the order of discharge passed by

the learned Special Judicial Magistrate, CBI Court, Ghaziabad, in

Case No. 456 of 2012 is restored. In consequence, the appellants

shall stand discharged of the alleged offence under Sections 420

and 120B IPC in Case Crime No. 219 of 2011 (E) 0016.

The criminal appeal is allowed accordingly.

Pending applications shall stand closed.

Headnotes prepared by: Result of the case:

Himanshu Rai, Hony. Associate Editor Appeal allowed.

(Verified by: Abhinav Mukerji, Sr. Adv.)

Penal Code, 1860 – ss. 153A, 505 (1b), 117 r/w. s.34 – Unlawful Activities (Prevention) Act, 1967 – ss.13, 16, 17, 18, 18B, 20, 4 38, 39, 40 & 43-D– National Investigation Agency Act, 2008 – The prosecution’s case is that in a programme, provocative speeches were delivered and there were cultural performances which resulted in disruption of communal harmony, violence, and loss of life – Police conducted raids – The State Police, allegedly, found incriminatory materials – According to prosecution, the State Police had discovered a larger conspiracy of which the appellant was a part – They found that CPI (Maoist) to be behind such conspiracy – The latter being a banned terrorist organisation, led to invoking offences under the 1967 Act – Appellant was arrested – After that the initial chargesheet and supplementary charge-sheet was submitted by the State Police invoking allegations of commission of offences under sections of the 1860 Code r/w. Sections of the 1967 Act – Bail application of appellant was rejected by trial Court – Appellant filed regular bail application before the High Court – Meanwhile, investigation was transferred to NIA – Single judge directed to file bail application before the Division Bench of the High Court considering the provisions of s.21(2) of the 2008 Act – The Division Bench disposed of [2024] 4 S.C.R. 271 Shoma Kanti Sen v. The State of Maharashtra & Anr. the appellant’s prayer for bail, giving liberty to the appellant to approach the Trial Court for filing a fresh application for bail – Permissibility:

* Author

[2024] 4 S.C.R. 270 : 2024 INSC 269

Shoma Kanti Sen

v.

The State of Maharashtra & Anr.

(Criminal Appeal No. 2595 of 2023)

05 April 2024

[Aniruddha Bose* and Augustine George Masih, JJ.]

Issue for Consideration

The appellant was detained on 06.06.2018. The appellant

assails the order of a Division Bench of the High Court passed

on 17.01.2023, disposing her application for bail with liberty to

approach the Trial Court for filing a fresh application for bail. The

issue arises for consideration that whether the offences under Part

IV & VI of the Unlawful Activities (Prevention) Act, 1967, alleged to

have been committed by the appellant, are prima facie true or not.

Headnotes

Penal Code, 1860 – ss. 153A, 505 (1b), 117 r/w. s.34 – Unlawful

Activities (Prevention) Act, 1967 – ss.13, 16, 17, 18, 18B, 20, 4

38, 39, 40 & 43-D– National Investigation Agency Act, 2008 –

The prosecution’s case is that in a programme, provocative

speeches were delivered and there were cultural performances

which resulted in disruption of communal harmony, violence,

and loss of life – Police conducted raids – The State Police,

allegedly, found incriminatory materials – According to

prosecution, the State Police had discovered a larger

conspiracy of which the appellant was a part – They found that

CPI (Maoist) to be behind such conspiracy – The latter being a

banned terrorist organisation, led to invoking offences under

the 1967 Act – Appellant was arrested – After that the initial

chargesheet and supplementary charge-sheet was submitted

by the State Police invoking allegations of commission of

offences under sections of the 1860 Code r/w. Sections of

the 1967 Act – Bail application of appellant was rejected by

trial Court – Appellant filed regular bail application before

the High Court – Meanwhile, investigation was transferred to

NIA – Single judge directed to file bail application before the

Division Bench of the High Court considering the provisions

of s.21(2) of the 2008 Act – The Division Bench disposed of 

[2024] 4 S.C.R. 271

Shoma Kanti Sen v. The State of Maharashtra & Anr.

the appellant’s prayer for bail, giving liberty to the appellant

to approach the Trial Court for filing a fresh application for

bail – Permissibility:

Held: The course adopted by the High Court was a permissible

course – However, the appellant has been in detention for almost

six years, her age is over 66 years suffering from various ailments

and charges have not yet been framed – Having taken these

factors into account, it would not be in the interest of justice to

remand the matter to the Special Court constituted under the 2008

Act at this stage – Bail of the appellant required to be considered

on merits – NIA responded to the necessity of detention of the

appellant at this stage in negative – There is no allegation at this

stage that apart from being present, she had any further active

participation on that date in the programme – She was also not

named in the initial FIR – On examining the acts attributed to

the appellant by the various witnesses or as inferred from the

evidence relied on by the prosecution, there is no prima facie

commission or attempt to commit any terrorist act by the appellant

applying the test for invoking s.15 r/w. s.162 of the 1967 Act – On

the allegations of raising funds for a terrorist act, there are mere

third-party allegations that money has been directed to be sent

to her – None of the materials reveal receipt of any funds by her

or her direct role in raising or collecting funds – As regards the

allegation against the appellant for committing an offence u/s.

184 of the 1967 Act are concerned, the materials collected so far,

only reveal her participation in some meetings and her attempt to

encourage women to join the struggle for new democratic revolution

– These allegations, prima facie, do not reveal the commission of

an offence u/s. 18 of the 1967 Act – There are no specific materials

or statements produced by the prosecution which attribute acts of

recruitment in banned organization by the appellant – Evidence of

her involvement in any fund-raising activities for the CPI (Maoist)

or her support to the said organisation has not transpired through

any reliable evidence at this stage – Mere meeting of accused

individuals or being connected with them through any medium

cannot implicate one in Chapter VI offences under of the 1967 Act,

in the absence of any further evidence of being associated with

a terrorist organisation – On perusal of the evidences collected

against her as also the allegations made by prosecution witnesses,

there is no reasonable ground for believing that the accusations

against the appellants for commission of the offences incorporated 

272 [2024] 4 S.C.R.

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in Chapter IV and VI of the 1967 Act are prima facie true – Thus,

the impugned judgment set aside and the appellant directed to

be released on bail with conditions. [Paras 14, 15, 23, 24, 30,

31, 32, 35, 36, 42]

Case Law Cited

Vernon v. The State of Maharashtra & Anr. [2023] 10

SCR 867 : (2023) INSC 655 – relied on.

State of Haryana v. Basti Ram [2013] 4 SCR 850 : (2013)

4 SCC 200; State of Andhra Pradesh, through Inspector

General, National Investigation Agency v. Mohd. Hussain

alias Salim [2013] 11 SCR 140 : (2014) 1 SCC 258;

National Investigation Agency v. Zahoor Ahmad Shah

Watali [2019] 5 SCR 1060 : (2019) 5 SCC 1; Gurwinder

Singh v. State of Punjab [2024] 2 SCR 134 : (2024)

INSC 92; K.A. Najeeb v. Union of India [2021] 1 SCR

443 : (2021) 3 SCC 713; Mazhar Khan v. N.I.A. New

Delhi; Shaheen Welfare Association v. Union of India

and Others [1996] 2 SCR 1123 : (1996) 2 SCC 616;

Angela Harish Sontakke v. State of Maharashtra (2021)

3 SCC 723 – referred to.

List of Acts

Penal Code, 1860; Unlawful Activities (Prevention) Act, 1967;

National Investigation Agency Act, 2008; Code of Criminal

Procedure, 1973.

List of Keywords

Provocative speeches; Disruption of communal harmony, violence,

and loss of life; Detention; Incarceration for a long period; Nonframing of charges; Bail; Commission or attempt to commit

any terrorist act; Third-party allegations; Direct role in raising

or collecting funds; Punishment for terrorist activities; Terrorist

Organizations.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2595

of 2023

From the Judgment and Order dated 17.01.2023 of the High Court

of Judicature at Bombay in CRMBA No. 118 of 2020

[2024] 4 S.C.R. 273

Shoma Kanti Sen v. The State of Maharashtra & Anr.

Appearances for Parties

K M Nataraj, A.S.G., Anand Grover, Mihir Desai, Sr. Advs., Paras

Nath Singh, Rohin Bhatt, Ms. Nupur Kumar, Ms. Aparna Bhat,

Ms. Karishma Maria, Ms. Rishika Agarwal, Kanu Agarwal, Mrs.

Swati Ghirdiyal, Siddharth Dharmadhikari, Shailesh Madiyal, Anam

Venkatesh, Annirudh Sharma Ii, Siddhant Kohli, Ishaan Sharma,

Annirudh Bhatt, Amit Sharma B, Arvind Kumar Sharma, Omkar

Deshpande, Aaditya Aniruddha Pande, Bharat Bagla, Sourav Singh,

Aditya Krishna, Ms. Preet S. Phanse, Adarsh Dubey, Raj Kamal,

Aseem Atwal, Shaheen Pradhan, Siddhant Sharma, Maheen Pradhan,

Advs. for the appearing parties.

Judgment / Order of the Supreme Court

Judgment

Aniruddha Bose, J.

The appellant before us assails the order of a Division Bench of the

High Court of Judicature at Bombay passed on 17.01.2023, disposing

her application for bail with liberty to approach the Trial Court for

filing a fresh application for bail.

2. The appellant was detained on 06.06.2018 in connection with First

Investigation Report (“FIR”) no. 04/2018 dated 08.01.2018 registered

with Vishrambaug Police Station, Pune alleging commission of

offences under Sections 153A, 505 (1b), 117 read with Section 34 of

the Indian Penal Code, 1860 (“1860 Code”). The complaints therein

related to violence that broke out at a function organised by Elgar

Parishad. Certain acts of violence had taken place at Shanivarwada,

Pune on 31.12.2017 thereafter. The prosecution’s case is that in the

said programme, provocative speeches were delivered and there

were cultural performances which had the effect of creating enmity

between caste groups, resulting in disruption of communal harmony,

violence, and loss of life. The said FIR was initially lodged against

the organisers of the Elgar Parishad event, which included activists

of a cultural body, known as Kabir Kala Manch. The appellant before

us was not named in that FIR as an accused at that point of time.

3. Subsequently, the scope of investigation was expanded and Section

120-B of the 1860 Code was added to the list of offences on 06.03.2018.

The State Police, who were investigating the case at that point of 

274 [2024] 4 S.C.R.

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time raided houses of eight accused persons on 17.04.2018, namely

(1) Rona Wilson of Delhi, (2) Surendra Gading of Nagpur, (3) Sudhir

Dhawale of Mumbai, (4) Harshali Potdar of Mumbai, (5) Sagar Gorkhe

of Pune, (6) Deepak Dhaeagale of Pune, (7) Jyoti Jagtap of Pune

and (8) Ramesh Gaychore of Pune. The State Police, allegedly, found

incriminatory materials from the residences of the raided persons. The

State Police seemed to have had discovered a larger conspiracy of

which the appellant was a part, according to the prosecution. They

found that Communist Party of India (Maoist) [“CPI (Maoist)”] to be

behind such conspiracy. The latter is a banned terrorist organisation,

and has been included in the First Schedule of the Unlawful Activities

(Prevention) Act, 1967 (“1967 Act”) by an order of the Union Home

Ministry dated 22.06.2009. This led to invoking offences under Sections

13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act. On 06.06.2018,

appellant’s residence was raided and certain literatures, electronic

devices and mobile phones were seized from her. On that date itself,

the appellant came to be arrested by the State Police.

4. On 02.11.2018, statement of one Kumarasai was recorded. He

had also recorded two other subsequent statements on 23.12.2018

(Annexure P-6 to the appeal-petition) and 24.08.2020. All these

statements form a part of the three chargesheets which have been

submitted in connection with the subject case and we shall refer to

the contents thereof later in this judgment. We would also point out

here that on behalf of prosecution, four sets of statements have been

produced before us as statements of protected witnesses. But status

of two of those witnesses as ‘protected’ was removed by the Special

Court constituted under the National Investigation Agency Act, 2008

(“2008 Act”) by an order passed on 27.04.2022. The investigation

was transferred to the National Investigation Agency (“NIA”) on

24.01.2020 and the same case was renumbered as RC-01/2020/

NIA/MUM, with NIA police station, Mumbai. The Special Court held

that prior directions to maintain secrecy in respect of identity of KW2

and KW4 ought to be set aside. The names of KW2 and KW4 thus

stood removed from the list of protected witnesses. This was done

mainly on the ground that copies of statements of those two witnesses

had been supplied to the defence under Section 207 of the Code

of Criminal Procedure, 1973 (“1973 Code”), which transmitted their

names and identities. KW4 is Kumarasai, whose statement we have

referred to earlier in this paragraph.

[2024] 4 S.C.R. 275

Shoma Kanti Sen v. The State of Maharashtra & Anr.

5. On 15.11.2018, the initial chargesheet was submitted by the State

Police invoking allegations of commission of offences under Sections

153A, 501(1)(b), 117, 120B, 121, 121A, 124A & 34 of the 1860 Code

read with Sections 13, 16, 17, 18, 18B, 20, 38, 39 & 40 of the 1967

Act. The appellant was implicated in the said chargesheet as accused

no. 4 for having committed offences under the aforesaid provisions. In

column 10 of this chargesheet, under the heading “Details of accused

charge-sheeted (with absconding accused)” names of Sudhir Prahlad

Dhavle, Rona Jacob Wilson, Surendra Pundlikrao Gadling, Shoma

Sen (the appellant) and Mahesh Sitaram Raut appear as arrested

accused whereas names of five other accused persons have been

shown as “at present underground”. A supplementary chargesheet

was also filed by the State Police on 21.02.2019, broadly under the

same provisions, implicating certain other individuals, Varavara Rao,

Vernon Gonzalves, Arun Ferreira and Sudha Bhardwaj as accused

persons in the same case.

6. After filing of the initial chargesheet, the appellant had preferred a bail

application before the Sessions Court at Pune on 13.12.2018. The

Additional Sessions Judge, upon going through the two chargesheets

dated 15.11.2018 and 21.11.2019, rejected her bail plea by an order

dated 06.11.2019. The Sessions Court applied the bail restricting

provision contained in Section 43-D (5) of the 1967 Act to deny bail

to the appellant. Thereafter, on 09.01.2020, the appellant had filed

a regular bail application before the High Court of Judicature at

Bombay, invoking the provisions of Section 439 of the 1973 Code.

7. As the investigation had been transferred to the NIA during

subsistence of the bail application before the High Court, the learned

Single Judge, before whom the appellant’s petition was pending,

directed that the bail application ought to be placed before a Division

Bench and the NIA was also impleaded as respondent to the said

petition. Under normal circumstances, the bail petition would have

been heard by a learned Single Judge only. This direction, however,

was made considering the provisions of Section 21(2) of the 2008

Act. The order dated 17.07.2021 passed by the learned Single Judge

of the High Court, placing the bail application before the Division

Bench, reads: -

"1. Learned counsel for the applicant states that, the

case is now being investigated by N.I.A. under the 

276 [2024] 4 S.C.R.

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N.I.A. Act. He seeks leave to add N.I.A. as a party

respondent. Learned counsel for the applicant seeks

two weeks time to carry out amendment. Time is

granted.

2. Since the N.I.A. has taken over the investigation,

the matter will have to be placed before the

Division bench. I have taken this view in Criminal

Bail Application No.2024 of 2021 vide order dated

11/06/2021 based on the Hon’ble Supreme Court’s

Judgment in the case of State of Andhra Pradesh,

through Inspector General, National Investigation

Agency, Vs. Mohd. Hussain @ Salim, as reported

in (2014) 1 Supreme Court Cases 258.

3. Hence, the following order is passed:

ORDER

(i) Leave to amend is granted to add N.I.A. as a

party respondent.

(ii) Amendment shall be carried out within a period

of two weeks from today.

(iii) Office to take steps to place this matter before

the appropriate Division Bench.

(iv) The applicant shall supply second set of this

application.”

8. The Division Bench heard the bail application and by an order passed

on 17.01.2023, which is assailed before us, disposed of the appellant’s

prayer for bail, giving liberty to the appellant to approach the Trial

Court for filing a fresh application for bail. Prior to the passing of the

order which is impugned before us, the NIA had submitted a second

supplementary chargesheet dated 09.10.2020, implicating seven

more persons as accused in the case. They are Anand Teltumbde,

Gautam Navlakha, Hany Babu, Sagar Gorkhe, Ramesh Gaychore,

Jyoti Jagtap and Stan Swamy. It is the case of the prosecution that

the second supplementary chargesheet filed by the NIA contains

certain incriminating materials against the appellant as well. It is

primarily on account of the second supplementary chargesheet

being filed, the Division Bench of the High Court refused to consider 

[2024] 4 S.C.R. 277

Shoma Kanti Sen v. The State of Maharashtra & Anr.

the appellant’s petition for bail on merit. The reasoning for such a

course being directed by the Division Bench would appear from the

following passage of the impugned order: -

"2. As noted in Order dated 2nd December, 2022, the

investigation of present Crime was subsequently

transferred to the National Investigation Agency (for

short “the NIA”) in the month of January, 2020 i.e. after

passing of the impugned Order. After completion of

further investigation, the NIA has filed supplementary

charge-sheet in the Special Court (under NIA Act) at

Mumbai. The said case arising out of present crime

is now pending for final adjudication in the Special

Court (under NIA Act) at Mumbai.

3. It is to be noted here that, after the NIA filed

supplementary charge-sheet, in view of the

substantive change in circumstance, the Applicant

did not approach the trial Court, at the first instance

for appreciation of evidence by it. This Court therefore

does not have the benefit of assessment of entire

evidence on record by the trial Court. It is therefore

necessary for the Petitioner to approach the trial Court

afresh for seeking bail under Section 439 of Criminal

Procedure Code, so that the trial Court will get an

opportunity to assess entire material available on

record against the Applicant. Even otherwise, in view

of substantive change in circumstance it is necessary

for the Applicant to approach the trial Court by filing

a fresh Application for bail.”

9. Appearing on behalf of NIA, learned Additional Solicitor General, Mr.

Nataraj, took preliminary objection on maintainability of the present

appeal. His counter-affidavit is also founded on that factor. He stressed

on the fact that since the first Court of bail had no opportunity to

examine the fresh set of accusations emanating from the second

supplementary chargesheet, no error was committed by the Division

Bench in remanding the matter to the Court of first instance.

10. His argument is that the High Court is an appellate forum on the

question of bail, where the 2008 Act is applicable and thus ought

not to examine, for the first time, a fresh set of accusations made 

278 [2024] 4 S.C.R.

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by the investigating agency. He relied on a judgment of this Court in

the case of State of Haryana -vs- Basti Ram [(2013) 4 SCC 200].

A Coordinate Bench of this Court observed in this case:-

“27. Normally, we would have gone through the entire

evidence on record and decided whether the acquittal of

Basti Ram should be sustained or not. However, in the

absence of any discussion or analysis of the evidence by

the High Court in the first appeal, we are of the opinion that

a right of appeal available to Basti Ram would be taken

away if we were to consider the case on its merits without

the opinion of the High Court. Additionally, for a proper

appreciation of the case, it is necessary for us to have

the views of the High Court on record. This is important

since the High Court has reversed a finding of conviction

given by the trial Judge.”

11. This was a case where the respondent-accused was implicated in

offences of sexual assault and kidnapping of a minor girl along with

other related offences and the accused was convicted by the Trial

Court. Conviction of the respondent along with the co-accused was

set aside by a Single Judge of the High Court. It was contended

by the State before this Court that the judgment of acquittal was

passed by the High Court ignoring the statement of prosecutrix,

made under Section 164 of the 1973 Code, as also her testimony

before the trial court. It was in the context of this argument that the

aforesaid judgment was delivered and observations were made in

the passage quoted above. The same course, in our opinion, would

not be mandatory on the question of considering pre-trial bail plea.

12. So far as the initial and the first supplementary chargesheets filed by

the State Police are concerned, the Court of first instance had the

occasion to go through the same. But the High Court opined that after

transfer of investigation to NIA and filing of the second supplementary

chargesheet, which was also placed before the High Court, it should

be the Special Court itself which should examine, at the first instance,

the content of all the chargesheets, before considering the prayer of

an accused for bail. In the present case, when the bail application

was filed before the Single Judge of the High Court under Section

439 of the 1973 Code, the second supplementary chargesheet

had not been submitted. Under the provisions of the 1973 Code, 

[2024] 4 S.C.R. 279

Shoma Kanti Sen v. The State of Maharashtra & Anr.

the jurisdiction of the High Court to consider the question of bail is

coordinate with that of the Sessions Court and it has evolved as a

matter of practice that an accused seeking bail ought to approach

the Sessions Court before approaching the High Court. Thus, at the

point of time when the bail petition was filed by the appellant before

the High Court, there was no apparent jurisdictional shortcoming in

the High Court examining the appellant’s plea for bail. It was also, in

our opinion, the proper course which was adopted by the High Court

exercising jurisdiction under Section 439 of the 1973 Code to refer

the matter to a Division Bench to decide the bail plea in accordance

with Section 21(2) of the 2008 Act. This course has been prescribed in

the judgement of this court in the case of State of Andhra Pradesh,

through Inspector General, National Investigation Agency -vsMohd. Hussain alias Salim [(2014) 1 SCC 258], which was relied

upon by the learned Single Judge while placing the bail application

before a Division Bench. The relevant portion of this judgement

passed by a Coordinate Bench of this Court stipulates: -

“27. The order passed by this Court on 2-8-2013 in State

of A.P. v. Mohd. Hussain [State of A.P. v. Mohd. Hussain,

(2014) 1 SCC 706] is therefore clarified as follows:

27.1. Firstly, an appeal from an order of the Special Court

under the NIA Act, refusing or granting bail shall lie only

to a Bench of two Judges of the High Court.

27.2. And, secondly as far as Prayer (b) of the petition for

clarification is concerned, it is made clear that inasmuch

as the applicant is being prosecuted for the offences under

the MCOC Act, 1999, as well as the Unlawful Activities

(Prevention) Act, 1967, such offences are triable only by

the Special Court, and therefore application for bail in such

matters will have to be made before the Special Court

under the NIA Act, 2008, and shall not lie before the High

Court either under Section 439 or under Section 482 of the

Code. The application for bail filed by the applicant in the

present case is not maintainable before the High Court.

27.3. Thus, where the NIA Act applies, the original

application for bail shall lie only before the Special Court,

and appeal against the orders therein shall lie only to a

Bench of two Judges of the High Court.”

280 [2024] 4 S.C.R.

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13. The factual position which forms the background of the present

appellant’s plea for bail is, however, different from that in which

the aforesaid judgments were delivered. The appellant before us,

at each stage, had applied for bail before the Court which, at that

point of time, had regular jurisdiction to consider her application. It

was because of supervening circumstances the NIA entered into

the picture and then issued the second supplementary chargesheet.

The Division Bench, being an appellate forum, has the jurisdiction to

look into the facts which may arise subsequent to the order of bail

passed by the Court of regular jurisdiction. The order by which the

Single Judge, hearing the bail application under Section 439 of the

1973 Code, placed the matter before the Division Bench (in essence,

giving the said application the form or character of an appeal under

Section 21(2) of the 2008 Act), had not been assailed by any of the

parties. We also do not find any error in such a direction having

been issued by the Single Judge of the High Court exercising

jurisdiction under Section 439 of the 1973 Code. It was the same

investigation which was continued by the NIA, based on the same

FIR. Only the investigating agency had changed. Just because the

second supplementary chargesheet had been issued by the NIA

after disposal of the bail application by the Sessions Court, it was

not the only legal course available to the High Court to remand the

matter to the Special Court for examining the second supplementary

chargesheet at the first instance. As an Appellate Forum, in the

facts of the given case, it was well within the jurisdiction of the High

Court exercising its power under Section 21(2) of the 2008 Act, to

examine the second supplementary chargesheet as well, while sitting

in appeal over the order of rejection of bail by the regular Sessions

Court upon considering the first two chargesheets.

14. Now, the question arises as to whether the course adopted by the

High Court ought to be invalidated by us simply because another

course, which is suggested by the appellant, could also be adopted

by the High Court. In our view, under ordinary circumstances, we

might not have had interfered with the High Court’s judgment and

order which is under appeal before us. The course adopted by the

High Court was a permissible course. We, however, must take into

account that the High Court had passed the aforesaid order when

the appellant, a lady, was in detention for over four and a half years.

At present, the appellant has been in detention for almost six years, 

[2024] 4 S.C.R. 281

Shoma Kanti Sen v. The State of Maharashtra & Anr.

her age is over 66 years and charges have not yet been framed.

The appellant has also moved an application before us, registered

as CRL MP No. 166531 of 2023, in which various ailments from

which she suffers have been cited and prayer is made for bail on

medical grounds as well.

15. Having taken these factors into account, we do not think it would be

in the interest of justice to remand the matter to the Special Court

constituted under the 2008 Act at this stage. We are taking this

view as in our opinion, it would not have been beyond jurisdiction

of the High Court Division Bench, even in exercise of appellate

power under Section 21(2) of the 2008 Act, to examine the second

supplementary chargesheet as well. For these reasons, we decline

to accept the preliminary objection raised by Mr. Nataraj and shall

proceed to consider here, the appellant’s plea for bail on merit. Now

that we have given leave to the appellant in her petition for special

leave to appeal, the same appellate jurisdiction which vested in the

High Court will vest in us as well and in exercise of such appellate

jurisdiction, we shall consider the appellant’s prayer for bail, which

was not considered by the High Court on merit.

16. It was also urged by Mr. Nataraj that in the appeal-petition, the

appellant has only asked for setting aside the impugned judgment and

order. No specific prayer for bail has been made. But in our opinion,

the plea for bail in the context of the present appeal is implicit. The

petition which was transferred to the Division Bench carried prayer

of the appellant for being released on bail and argument advanced

by Mr. Grover, learned senior counsel appearing for the appellant is

that the High Court itself ought to have granted bail to the appellant

on the basis of available materials. Moreover, the appellant in the

appeal-petition has also asked for bail as interim relief. Since the

appeal, in substance, is against the judgment by which prayer for

bail was refused, merely based on the manner of framing of reliefs

or prayers in the subject-petition, the actual relief sought by the

appellant would not stand eclipsed.

17. Mr. Nataraj had also contended that the NIA must be permitted to

contest the bail plea of the appellant before the first Court of bail

on the basis of materials disclosed in the second supplementary

charge-sheet, because the prosecution would also be entitled

to a right of appeal. His submission is that such right of appeal 

282 [2024] 4 S.C.R.

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would stand lost if the High Court itself had examined the second

supplementary charge-sheet and decided the question of bail in

favour of the appellant-accused. These are cogent arguments, but

we must not lose sight of the fact that we are concerned here with

the question of liberty of a pre-trial detenue, who is a senior citizen,

in custody for almost six years, against whom charges are yet to be

framed. The question of losing right of an appellate forum would have

greater significance in substantive proceedings but on the question

of bail, in a proceeding where the detenue herself has volunteered

to forego an appellate forum by arguing before us her case for bail,

the approach of this Court would be to address the question on

merit, rather than to send it back to the Court of first instance for

examining the materials available against the appellant.

18. This argument of the prosecution would have had stronger impact if

the last charge-sheet, which the first bail Court could not examine,

had disclosed any new or egregious set of accusations against the

appellant, far removed from those contained in the earlier chargesheets. We have gone through the second supplementary chargesheet

but do not find disclosure of any such material. This question shall

be examined by us in the subsequent paragraphs of this judgment.

19. Another point urged by Mr. Nataraj was that the entirety of incriminating

material in the chargesheets, which forms the basis for implicating the

appellant did not form part of petition for special leave to appeal and to

that extent the investigating agency did not have full opportunity to meet

the appellant’s case. But as would be evident from various paragraphs

of this judgment, these materials were brought on record and both

parties had the opportunity to consider these materials and advance

submissions on that basis. This is not a case where equitable relief is

snatched ex-parte, for instance in case of an ad-interim injunction, by

not bringing to the notice of the Court the entire factual basis of a given

case. In this appeal, both the parties have had sufficient opportunity to

deal with the relevant materials and the appellant cannot be non-suited

on the sole ground of non-disclosure of such materials.

20. We shall now test the appellant’s claim for bail on merit. Having regard

to the proviso to Section 43D (5)1

 of 1967 Act, the Court hearing the

1 43-D. Modified application of certain provisions of the Code.

1) Notwithstanding anything contained in the Code or any other law, every offence punishable under 

[2024] 4 S.C.R. 283

Shoma Kanti Sen v. The State of Maharashtra & Anr.

question of bail is under duty to scan through the case diary or report

made under Section 173 of the Code for the purpose of forming an

opinion to the effect that there are reasonable grounds for believing

that the accusation against the appellant is prima facie true. This test

would apply in only relation to offences stipulated under Chapters IV

and VI of the 1967 Act. So far as the prosecution’s accusation against

the appellant is concerned, allegations of commission of offences

under Sections 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act

come within the purview of the bail restricting clause as specified in

the aforesaid provision. The manner in which the Court shall come

to such a finding at the stage of considering petition for bail has

this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of

the Code, and “cognizable case” as defined in that clause shall be construed accordingly.

2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this

Act subject to the modification that in sub-section (2),--

(a) the references to “fifteen days”, “ninety days” and “sixty days”, wherever they occur, shall be

construed as references to “thirty days”, “ninety days” and “ninety days” respectively; and

(b) after the proviso, the following provisos shall be inserted, namely:--

“Provided further that if it is not possible to complete the investigation within the said period of

ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating

the progress of the investigation and the specific reasons for the detention of the accused

beyond the said period of ninety days, extend the said period up to one hundred and eighty

days:

Provided also that if the police officer making the investigation under this Act, requests, for

the purposes of investigation, for police custody from judicial custody of any person in judicial

custody, he shall file an affidavit stating the reasons for doing so and shall also explain the

delay, if any, for requesting such police custody.

(3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this

Act subject to the modification that--

(a) the reference in sub-section (1) thereof

(i) to “the State Government” shall be construed as a reference to “the Central Government

or the State Government.”;

(ii) to “order of the State Government” shall be construed as a reference to “order of the

Central Government or the State Government, as the case may be”; and

(b) the reference in sub-section (2) thereof, to ‘the State Government” shall be construed as a

reference to “the Central Government or the State Government, as the case may be”.

(4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any

person accused of having committed an offence punishable under this Act.

(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable

under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond

unless the Public Prosecutor has been given an opportunity of being heard on the application for

such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court,

on a perusal of the case diary or the report made under section 173 of the Code is of the opinion

that there are reasonable grounds for believing that the accusation against such person is prima

facie true.

(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under

the Code or any other law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to a person

accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the

country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be

recorded in writing.”

284 [2024] 4 S.C.R.

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been dealt with and explained in two judgments of two Coordinate

Benches of this Court in the cases of National Investigation Agency

-vs-Zahoor Ahmad Shah Watali [(2019) 5 SCC 1] and Vernon

-vs- The State of Maharashtra & Anr. [2023 INSC 655]. (One of

us, Aniruddha Bose J., was a party to the latter judgement).

21. In the case of Zahoor Ahmad Shah Watali (supra), it has been,

inter-alia, held:-

“23. By virtue of the proviso to sub-section (5), it is the

duty of the Court to be satisfied that there are reasonable

grounds for believing that the accusation against the

accused is prima facie true or otherwise. Our attention

was invited to the decisions of this Court, which has had

an occasion to deal with similar special provisions in TADA

and Mcoca. The principle underlying those decisions may

have some bearing while considering the prayer for bail in

relation to the offences under the 1967 Act as well. Notably,

under the special enactments such as TADA, Mcoca and

the Narcotic Drugs and Psychotropic Substances Act,

1985, the Court is required to record its opinion that there

are reasonable grounds for believing that the accused

is “not guilty” of the alleged offence. There is a degree

of difference between the satisfaction to be recorded by

the Court that there are reasonable grounds for believing

that the accused is “not guilty” of such offence and the

satisfaction to be recorded for the purposes of the 1967

Act that there are reasonable grounds for believing that the

accusation against such person is “prima facie” true. By its

very nature, the expression “prima facie true” would mean

that the materials/evidence collated by the investigating

agency in reference to the accusation against the accused

concerned in the first information report, must prevail

until contradicted and overcome or disproved by other

evidence, and on the face of it, shows the complicity of

such accused in the commission of the stated offence. It

must be good and sufficient on its face to establish a given

fact or the chain of facts constituting the stated offence,

unless rebutted or contradicted. In one sense, the degree

of satisfaction is lighter when the Court has to opine that

the accusation is “prima facie true”, as compared to the 

[2024] 4 S.C.R. 285

Shoma Kanti Sen v. The State of Maharashtra & Anr.

opinion of the accused “not guilty” of such offence as

required under the other special enactments. In any case,

the degree of satisfaction to be recorded by the Court for

opining that there are reasonable grounds for believing that

the accusation against the accused is prima facie true, is

lighter than the degree of satisfaction to be recorded for

considering a discharge application or framing of charges

in relation to offences under the 1967 Act. Nevertheless,

we may take guidance from the exposition in Ranjitsing

Brahmajeetsing Sharma v. State of Maharashtra, [(2005) 5

SCC 294 : 2005 SCC (Cri) 1057], wherein a three-Judge

Bench of this Court was called upon to consider the scope

of power of the Court to grant bail. In paras 36 to 38, the

Court observed thus : (SCC pp. 316-17)

“36. Does this statute require that before a

person is released on bail, the court, albeit prima

facie, must come to the conclusion that he is not

guilty of such offence? Is it necessary for the

court to record such a finding? Would there be

any machinery available to the court to ascertain

that once the accused is enlarged on bail, he

would not commit any offence whatsoever?

37. Such findings are required to be recorded

only for the purpose of arriving at an objective

finding on the basis of materials on record only

for grant of bail and for no other purpose.

38. We are furthermore of the opinion that the

restrictions on the power of the court to grant

bail should not be pushed too far. If the court,

having regard to the materials brought on record,

is satisfied that in all probability he may not

be ultimately convicted, an order granting bail

may be passed. The satisfaction of the court

as regards his likelihood of not committing an

offence while on bail must be construed to mean

an offence under the Act and not any offence

whatsoever be it a minor or major offence. …

What would further be necessary on the part of 

286 [2024] 4 S.C.R.

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the court is to see the culpability of the accused

and his involvement in the commission of an

organised crime either directly or indirectly. The

court at the time of considering the application

for grant of bail shall consider the question from

the angle as to whether he was possessed of

the requisite mens rea.”

And again in paras 44 to 48, the Court observed : (SCC

pp. 318-20)

“44. The wording of Section 21(4), in our opinion,

does not lead to the conclusion that the court

must arrive at a positive finding that the applicant

for bail has not committed an offence under the

Act. If such a construction is placed, the court

intending to grant bail must arrive at a finding

that the applicant has not committed such an

offence. In such an event, it will be impossible

for the prosecution to obtain a judgment of

conviction of the applicant. Such cannot be

the intention of the legislature. Section 21(4) of

Mcoca, therefore, must be construed reasonably.

It must be so construed that the court is able to

maintain a delicate balance between a judgment

of acquittal and conviction and an order granting

bail much before commencement of trial.

Similarly, the court will be required to record

a finding as to the possibility of his committing

a crime after grant of bail. However, such an

offence in futuro must be an offence under the

Act and not any other offence. Since it is difficult

to predict the future conduct of an accused, the

court must necessarily consider this aspect of

the matter having regard to the antecedents of

the accused, his propensities and the nature

and manner in which he is alleged to have

committed the offence.

45. It is, furthermore, trite that for the purpose

of considering an application for grant of bail, 

[2024] 4 S.C.R. 287

Shoma Kanti Sen v. The State of Maharashtra & Anr.

although detailed reasons are not necessary

to be assigned, the order granting bail must

demonstrate application of mind at least in

serious cases as to why the applicant has been

granted or denied the privilege of bail.

46. The duty of the court at this stage is not to

weigh the evidence meticulously but to arrive

at a finding on the basis of broad probabilities.

However, while dealing with a special statute like

Mcoca having regard to the provisions contained

in sub-section (4) of Section 21 of the Act, the

court may have to probe into the matter deeper

so as to enable it to arrive at a finding that the

materials collected against the accused during

the investigation may not justify a judgment of

conviction. The findings recorded by the court

while granting or refusing bail undoubtedly would

be tentative in nature, which may not have any

bearing on the merit of the case and the trial

court would, thus, be free to decide the case

on the basis of evidence adduced at the trial,

without in any manner being prejudiced thereby.

47. In Kalyan Chandra Sarkar v. Rajesh Ranjan

[(2004) 7 SCC 528 : 2004 SCC (Cri) 1977] this

Court observed : (SCC pp. 537-38, para 18)

‘18. We agree that a conclusive finding in

regard to the points urged by both the sides

is not expected of the court considering a

bail application. Still one should not forget, as

observed by this Court in Puran v. Rambilas

[(2001) 6 SCC 338: 2001 SCC (Cri) 1124] :

(SCC p. 344, para 8)

“8. …Giving reasons is different

from discussing merits or demerits.

At the stage of granting bail a

detailed examination of evidence

and elaborate documentation of the

merits of the case has not to be 

288 [2024] 4 S.C.R.

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undertaken. … That did not mean

that whilst granting bail some reasons

for prima facie concluding why bail

was being granted did not have to

be indicated.”

We respectfully agree with the above dictum of

this Court. We also feel that such expression

of prima facie reasons for granting bail is a

requirement of law in cases where such orders

on bail application are appealable, more so

because of the fact that the appellate court has

every right to know the basis for granting the

bail. Therefore, we are not in agreement with

the argument addressed by the learned counsel

for the accused that the High Court was not

expected even to indicate a prima facie finding

on all points urged before it while granting bail,

more so in the background of the facts of this

case where on facts it is established that a

large number of witnesses who were examined

after the respondent was enlarged on bail had

turned hostile and there are complaints made

to the court as to the threats administered by

the respondent or his supporters to witnesses in

the case. In such circumstances, the court was

duty-bound to apply its mind to the allegations

put forth by the investigating agency and ought

to have given at least a prima facie finding in

regard to these allegations because they go to

the very root of the right of the accused to seek

bail. The non-consideration of these vital facts

as to the allegations of threat or inducement

made to the witnesses by the respondent

during the period he was on bail has vitiated

the conclusions arrived at by the High Court

while granting bail to the respondent. The other

ground apart from the ground of incarceration

which appealed to the High Court to grant bail

was the fact that a large number of witnesses are 

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Shoma Kanti Sen v. The State of Maharashtra & Anr.

yet to be examined and there is no likelihood of

the trial coming to an end in the near future. As

stated hereinabove, this ground on the facts of

this case is also not sufficient either individually

or coupled with the period of incarceration to

release the respondent on bail because of

the serious allegations of tampering with the

witnesses made against the respondent.’

48. In Jayendra Saraswathi Swamigal v. State

of T.N. (2005) 2 SCC 13 : 2005 SCC (Cri) 481]

this Court observed [(SCC pp. 21-22, para 16)]

‘16. … The considerations which

normally weigh with the court in

granting bail in non-bailable offences

have been explained by this Court in

State v. Jagjit Singh [(1962) 3 SCR

622 : AIR 1962 SC 253 : (1962) 1 Cri

LJ 215] and Gurcharan Singh v. State

(UT of Delhi) [(1978) 1 SCC 118 :

1978 SCC (Cri) 41] and basically they

are — the nature and seriousness

of the offence; the character of the

evidence; circumstances which are

peculiar to the accused; a reasonable

possibility of the presence of the

accused not being secured at the

trial; reasonable apprehension of

witnesses being tampered with; the

larger interest of the public or the

State and other similar factors which

may be relevant in the facts and

circumstances of the case.’”

22. In the case of Vernon (supra), it was observed:-

“36. In the case of Zahoor Ahmad Shah Watali (supra),

it has been held that the expression “prima facie true”

would mean that the materials/evidence collated by

the investigating agency in reference to the accusation

against the accused concerned in the chargesheet must 

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prevail, unless overcome or disproved by other evidence,

and on the face of it, materials must show complicity of

such accused in the commission of the stated offences.

What this ratio contemplates is that on the face of it, the

accusation against the accused ought to prevail. In our

opinion, however, it would not satisfy the prima facie “test”

unless there is at least surface-analysis of probative value

of the evidence, at the stage of examining the question of

granting bail and the quality or probative value satisfies

the Court of its worth………”

23. We must point out here that Mr. Nataraj has taken a fair stand in

this case and in response to our query on necessity of detention of

the appellant at this stage, for further investigation, he has submitted

that the prosecution at present would not require custody of the

appellant for such purpose. He has simultaneously emphasised on

gravity and seriousness of the offences alleged against the appellant

and submitted that the question of entitlement of the appellant to

be enlarged on bail would have to be examined in the light of the

bail restricting clause of Section 43D (5) of the 1967 Act and on

that basis, he has contested the appeal. We shall first examine

the applicability of the offences contained in Chapters IV and VI in

relation to the materials which have been disclosed before us and

then go on to apply the normal principle of granting bail, only on our

satisfaction that the materials disclosed before us do not establish

reasonable grounds for believing that the accusations against the

appellant under the bail restricting provisions of the 1967 Act are prima

facie true. The substance of allegations against the appellant are,

inter-alia, contained in paragraphs 17.4, 17.5, 17.8, 17.10.1, 17.11,

17.12, 17.15, 17.16 and 17.18 of the chargesheet dated 15.11.2018

and paragraphs 17.4, 17.5 and 17.16 of the first supplementary

chargesheet dated 21.02.2019. The allegations against the appellant

are, inter-alia, contained in paragraphs 17.24, 17.25, 17.29, 17.32,

17.39, 17.45, 17.55, 17.56, 17.73, 17.74, 17.75 and 17.78 of the

second supplementary chargesheet dated 09.10.2020.

24. It is admitted position that appellant was present at Shanivarwada

within the district of Pune on 31.12.2017 when the Elgar Parishad

event took place. But there is no allegation at this stage that apart

from being present, she had any further active participation on that

date in the programme. For instance, there is no allegation that she 

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Shoma Kanti Sen v. The State of Maharashtra & Anr.

had delivered any provocative speech. She was also not named in

the initial FIR which was registered at Vishrambaug Police Station,

Pune on 08.01.2018. The prosecution’s case is that the appellant is

an active member of CPI (Maoist) and conspired with other accused

persons to violently overthrow democracy and the State. There are

also allegations that she provided party funds and also received party

funds from another accused Mahesh Raut, she was paid a sum of

Rs. five lakhs by two other co-accused persons and made constant

attempts to further terrorist activities of the banned CPI (Maoist).

It is also the prosecution’s case that she has been encouraging

youngsters and recruited them as members in the banned organization

and participated in a broad conspiracy to organize Elgar Parishad

programme. It is further alleged that the appellant is associated with

the Indian Association of Peoples Lawyer (“IAPL”), Committee for

the Protection of Democratic Rights (“CPDR”) Anuradha Ghandy

Memorial Committee (“AGMC”) and Kabir Kala Manch (“KKM”) which

have been described as frontal organization of the CPI (Maoist) on

the ground that they are instrumental in organizing meetings and

exchange of messages for implementation of aims and policies of

the said banned organization. Her involvement in the controversy

hatched by two other accused and underground members has also

been highlighted. As we have already indicated, there was a search

in her residential premises on 06.06.2018. It is the prosecution’s

case that materials recovered from her, as also other accused

persons, revealed her participation in the meetings and conferences

of Revolutionary Democratic Front (“RDF”), which again has been

alleged to be a frontal organization to spread the propaganda of

the banned CPI (Maoist). The presence of the appellant in the

National Conference of RDF conducted in Hyderabad is sought to

be demonstrated through the first supplementary chargesheet.

25. In the second supplementary chargesheet, allegations against her

are contained in the paragraphs which we have already referred to.

Here also, the video of the RDF Conference held on 22-23.04.2012

has been highlighted. It is also indicated that she took active part in

the Elgar Parishad function. In this chargesheet, her conduct and

coordination with other accused persons has been sought to be

demonstrated, which include Anand Teltumbadde, Gautam Navlakha,

Hany Babu, Jyoti Jagtap and Stan Swamy (since deceased). It is also

pointed out that she was in close connection with the other members 

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of CPI (Maoist) through e-mail and mobile phones. But we do not

find these allegations to reveal involvement of the appellant in any

outrageously offensive act or activities having characters altogether

different from those contained in the two earlier chargesheets. In

this chargesheet, only her interaction and connection with other

accused persons has been revealed and forms part of the same

chain of accusations.

26. In its counter-affidavit, the NIA, being the contesting respondent before

us, has primarily taken the stand confined to its preliminary objections

on maintainability of this appeal, which we have already noted. But

in course of hearing before us, we were addressed on merit of the

appeal on the question of entitlement of the appellant to be released

on bail, having regard to the proviso of Section 43D(5) of 1967

Act. The materials which form part of the three chargesheets, were

brought on record before us by the appellant through two additional

affidavits. Apart from these of these of the appellant, detailed written

submission has been filed by Mr. Nataraj, which contains a series of

documents found to be incriminating by the prosecution along with

witness statements implicating the appellant.

27. So far as the appellant is concerned, the prosecution has emphasised

on the following list of materials forming part of this appeal:-

(i) A Letter dated 08.06.2017 from one “Comrade M” addressed

to “Comrade Surendra”, which carries reference to the

appellant to the limited extent that the party leadership has

sent instructions to “Comrade Shomasen” for strengthening

CPDR and Radical Student’s Union in Nagpur, Chandrapur

and Gondia region. This letter also records that necessary

funds have been sent, but no specific person is named as

the recipient of such funds.

(ii) Letter dated 23.12.2017 from one “R” addressed to “Comrade

Prakash” which relates to constituting a fact-finding team to

gauge the truth about fake encounters in Gadchiroli and it has

been indicated that letter that “Shoma” will speak to the friends,

presumably of the author and addressee of the letter, in Nagpur

who might join the team.

(iii) Next is a letter dated 02.01.2018 from one “Com. M” to

“Comrade Rona” and the offending part of this letter, so far as

the appellant is concerned, is to the effect that “Com. Shoma” 

[2024] 4 S.C.R. 293

Shoma Kanti Sen v. The State of Maharashtra & Anr.

and “Com. Surendra” were authorised to provide funds for the

future.

(iv) Next document bears the character of a minutes of a meeting

dated 02.01.2008, which marks the presence of “Shomasen”

as a “leading CPDR member”, along with certain other accused

individuals.

(v) Thereafter, an undated account statement is relied on by the

prosecution, which mentions “Shoma” as recipient of “1L”

(presumably Rs. one lakh) from “Surendra” who is the accused

no. 3 in the present case.

(vi) The prosecution has relied on another letter dated 25.09.2017,

written by “Com. Prakash” addressed to “Comrade Surendra”

where the author asks the addressee to coordinate with

“shomasen” and ensure that all pgp files are securely wiped

out from all the computers.

(vii) Then there is another letter dated 05.11.2017 purported to

have been written by “Comrade Surendra” and addressed to

“Comrade Prakash” wherein the author informs the addressee

that the information from the party has been communicated to

“Soma” and she has destroyed all the data on her computer

in addition to all the APT files sent by the party, old and new

letters and the party’s resolutions etc.

(viii) The last set of documents includes the panchnama of the

search conducted at the house of the appellant, along with

the Forensic Science Laboratory (‘FSL”) Report containing

the analysis of the materials seized from the appellant. These

documents have been cited by Mr. Nataraj to corroborate

the allegations of destruction of evidence at the instance of

the co-accused persons. The FSL report reveals that deleted

audio and video files were retrieved from hard disk and also

mentions that uninstalled softwares have been recovered, but no

substantive content of the deleted materials has been placed in

the chargesheets. The material placed before us only indicates

that the process of deletion had taken place.

It appears that all the letters and other materials mentioned in the

above list have been purported to have been recovered from the

electronic devices of co-accused Rona Wilson.

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28. The next set of evidences to which our attention has been drawn by

Mr. Nataraj are four witness statements, two of whom were originally

given the status of protected witnesses. We have referred to their

present status earlier in this judgment. The accusations made by

the four witnesses in their respective statements placed before us

are as follows:-

(i) The first protected witness (KW1) statement carries reference

to Shoma Sen as having addressed the delegates of the

conference of RDF held in April 2012. The relevant part of the

said recorded statement reads:-

“………Shoma Sen said that we have to

understand the essence of the Maoist slogan

‘women hold up half the sky’. To solve the

problems women in our country, as well as in

other countries, the struggle for New Democratic

Revolution is the only way forward. Simply she

was advocating women to join CPI Maoist to

solve their issues……....”

(ii) The statement of KW-2 recorded by the NIA under Section 161

of the 1973 Code on 10.08.2020 reveals alleged presence of

the appellant in the office of a co-accused person i.e. Surendra

Gadling, when KW-2 purported to have joined the CPI (Maoist)

at the instance of Surendra.

(iii) A redacted statement of KW-3, who is a protected witness,

has been produced by the NIA in its written submissions. This

witness, on being asked about senior Naxal members of CPI

(Maoist), stated that he first met the appellant in 2007-08, during

the classes of communist ideology, revolutionary movement,

party working etc. in Nagpur, which were attended by some

other individuals. The same witness goes on implicate the

appellant in certain message channels working to exchange

messages regarding urban work of CPI (Maoist). In this regard,

he has stated that:-

“……..During year 2017, there were 3-4

message channels were working to exchange

message between Deepak and Angela regarding

urban work of CPI (Maoist) viz (i) Deepak -Nandu 

[2024] 4 S.C.R. 295

Shoma Kanti Sen v. The State of Maharashtra & Anr.

(Myself)- Kalyan Hirekhan-Gadling-Angela; for

legal work (ii) Deepak-Nandu (Myself)-Kalyan

Hirekhan- Angela Sontakke at Shoma Sen’s

house for meeting with Deepak in Nagpur (iii)

Deepak-Nandu (Myself)- Arif Shaikh (WCL

worker and Journalist)-Vipalav Teltumbde

(Nephew of Deepak Teltumbde)-Angela; this

was the second option for meeting of Deepak &

Angela (iv) Deepak-Nandu (Myself)-Arif ShaikhNT Maske- Angela Sontakke; alternative meeting

channel……...”

This statement, however, does not prima facie show any direct

involvement of the appellant in the offending acts with which

she has been charged vis-à-vis the bail restricting provisions

of the 1967 Act.

(iv) From the three statements of Kumarasai who was originally

identified as “KW-4”, there are only two purported incriminating

references to the appellant, in the second and the third ones,

recorded on 23.12.2018 and 24.08.2020 respectively. In the

former statement, which was recorded by the State Police, he

stated that appellant was working along with an intellectual

group for solving problems of women and students. In the latter

statement, recorded by the NIA, he stated that the appellant

was an urban Naxalite working with CPI (Maoist). The name

of the appellant, however, does not figure in his first statement

recorded by the State Police on 02.11.2018.

29. In the light of these materials we shall have to examine the strength of

prosecution’s case to implicate the appellant in the offences specified

under Sections 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act.

There is also allegation against her for commission of offence under

Section 13 of the same statute, but that offence does not come under

the purview of the bail restricting provision of Section 43D (5) of the

1967 Act and we shall deal with that accusation in the succeeding

paragraphs of this judgment. The offences under Chapter IV of the

1967 Act with which the appellant has been charged with by the

prosecuting agency, mainly stem from commission of a terrorist

act or any act in connection therewith. Section 15 of the 1967 Act

stipulates: - 

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“15. Terrorist act.— (1) Whoever does any act with intent

to threaten or likely to threaten the unity, integrity, security,

economic security, or sovereignty of India or with intent to

strike terror or likely to strike terror in the people or any

section of the people in India or in any foreign country,—

(a) by using bombs, dynamite or other explosive

substances or inflammable substances or

firearms or other lethal weapons or poisonous or

noxious gases or other chemicals or by any other

substances (whether biological radioactive,

nuclear or otherwise) of a hazardous nature

or by any other means of whatever nature to

cause or likely to cause—

(i) death of, or injuries to, any person or

persons; or

(ii) loss of, or damage to, or destruction of,

property; or

(iii) disruption of any supplies or services

essential to the life of the community in

India or in any foreign country; or

(iii-a)damage to, the monetary stability of

India by way of production or smuggling

or circulation of high quality counterfeit

Indian paper currency, coin or of any

other material; or

(iv) damage or destruction of any property

in India or in a foreign country used or

intended to be used for the defence of

India or in connection with any other

purposes of the Government of India,

any State Government or any of their

agencies; or

(b) overawes by means of criminal force or the show

of criminal force or attempts to do so or causes

death of any public functionary or attempts to

cause death of any public functionary; or

[2024] 4 S.C.R. 297

Shoma Kanti Sen v. The State of Maharashtra & Anr.

(c) detains, kidnaps or abducts any person and

threatens to kill or injure such person or does any

other act in order to compel the Government of

India, any State Government or the Government

of a foreign country or an international or intergovernmental organisation or any other person

to do or abstain from doing any act; or commits

a terrorist act.

Explanation.—For the purpose of this sub-section,—

(a) “public functionary” means the constitutional

authorities or any other functionary notified in

the Official Gazette by the Central Government

as public functionary;

(b) “high quality counterfeit Indian currency” means

the counterfeit currency as may be declared

after examination by an authorised or notified

forensic authority that such currency imitates or

compromises with the key security features as

specified in the Third Schedule.

(2) The terrorist act includes an act which constitutes an

offence within the scope of, and as defined in any of the

treaties specified in the Second Schedule.”

30. We are not concerned with sub-section (2) of the said provision. In this

appeal, there is no allegation of any act of the appellant constituting

an offence within the scope of the Second Schedule to the same

statute. Sub-section (1) of Section 15 refers to certain acts which

would constitute a terrorist act but the first part of sub-section (1)

of Section 15 cannot be read in isolation. In our reading of the said

provision of the statute, to qualify for being a terrorist act, such act

must be done with intent to threaten or likely to threaten the unity,

integrity, security, economic security or sovereignty of India or such

act must be accompanied with an intent to strike terror or likely to

strike terror in the people or any section of the people in India or in

any foreign country. These are initial requirements to invoke Section

15(1) of the 1967 Act. The legislature, however, has not left the nature

of such acts unspecified and in sub-clauses (a), (b), and (c) of the

said sub-section, the law stipulates the manner of commission of 

298 [2024] 4 S.C.R.

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the acts specified in first part of sub-section (1) of said Section 15. If

any offender attempts to commit any of the acts specified in Section

15(1), to come within the ambit of the expression “terrorist act” under

the 1967 legislation, action or intention to cause such act must be

by those means, which have been specified in sub-clauses (a), (b),

and (c) of the said provision. This is the line of reasoning broadly

followed by this Court in the case of Vernon (supra) in construing the

applicability of the said provision. If we examine the acts attributed

to the appellant by the various witnesses or as inferred from the

evidence relied on by the prosecution, we do not find prima facie

commission or attempt to commit any terrorist act by the appellant

applying the aforesaid test for invoking Section 15 read with Section

162

 of the 1967 Act.

31. On the allegations of raising funds for a terrorist act forming part of

charges under Section 17 of the 19673

 Act, most of the materials

have emanated from recovery of documents from devices of third

parties and at this stage, on the strength of the materials produced

before us, the prosecution has not been able to corroborate or even

raise a hint of corroboration of the allegation that the appellant has

funded any terrorist act or has received any money for that purpose.

What we can infer on the basis of the materials produced before us,

are mere third-party allegations that money has been directed to be

2 16. Punishment for terrorist act.—

(1) Whoever commits a terrorist act shall,—

(a) if such act has resulted in the death of any person, be punishable with death or imprisonment

for life, and shall also be liable to fine;

(b) in any other case, be punishable with imprisonment for a term which shall not be less than

five years but which may extend to imprisonment for life, and shall also be liable to fine.

3 17. Punishment for raising funds for terrorist act.—Whoever, in India or in a foreign country, directly

or indirectly, raises or provides funds or collects funds, whether from a legitimate or illegitimate source,

from any person or persons or attempts to provide to, or raises or collects funds for any person or

persons, knowing that such funds are likely to be used, in full or in part by such person or persons or

by a terrorist organisation or by a terrorist gang or by an individual terrorist to commit a terrorist act,

notwithstanding whether such funds were actually used or not for commission of such act, shall be

punishable with imprisonment for a term which shall not be less than five years but which may extend to

imprisonment for life, and shall also be liable to fine.

Explanation.—For the purpose of this section,—

(a) participating, organising or directing in any of the acts stated therein shall constitute an

offence;

(b) raising funds shall include raising or collecting or providing funds through production or

smuggling or circulation of high quality counterfeit Indian currency; and

(c) raising or collecting or providing funds, in any manner for the benefit of, or, to an individual

terrorist, terrorist gang or terrorist organisation for the purpose not specifically covered under

Section 15 shall also be construed as an offence.

[2024] 4 S.C.R. 299

Shoma Kanti Sen v. The State of Maharashtra & Anr.

sent to her. None of the materials reveal receipt of any funds by her

or her direct role in raising or collecting funds. We are conscious

of the fact that in course of trial, the prosecution will have the

opportunity to bring more detailed evidence in that regard, but here

we are only examining whether the offences under Part IV & VI of

the 1967 Act, alleged to have been committed by the appellant, are

prima facie true or not.

32. As regards the allegation against the appellant for committing an

offence under Section 184

 of the 1967 Act are concerned, which

includes conspiracy or attempt on her part to commit, advocate, abet,

advice, incite or facilitate commission or any terrorist act, the materials

collected so far, even if we believe them to be true at this stage,

applying the principles enunciated by this Court in the case of Zahoor

Ahmad Shah Watali (supra), only reveal her participation in some

meetings and her attempt to encourage women to join the struggle

for new democratic revolution. These allegations, prima facie, do not

reveal the commission of an offence under Section 18 of the 1967 Act.

33. KW-2 has found her to be present in the office of another co-accused

Surendra, when he was being convinced by Surendra to join CPI

(Maoist), but her mere presence on the spot, by itself, would not

constitute an offence of recruiting any person or persons for a terrorist

act, as specified in Section 18 thereof. As regards the statement of

KW-3, he claims to have met the appellant in 2007-08 during her

lectures on communist ideology and party-functioning of CPI (Maoist)

at Nagpur. At that point of time, CPI (Maoist) had not been included in

the First Schedule of the 1967 Act enumerating terrorist organisations.

It came to be banned on 22.06.2009, as we have already specified.

Kumarasai, i.e. KW-4 in his third statement recorded on 24.08.2020

has only stated she is an urban Naxal working for CPI (Maoist). On

this thin thread, we cannot apply the rigors of Section 43D (5) of

the 1967 Act against her. Apart from that, there is no evidence that

she was a member of CPI (Maoist). There are no specific materials

or statements produced by the prosecution which attribute acts of

recruitment in banned organization by the appellant. Thus, at this

4 18. Punishment for conspiracy, etc.—Whoever conspires or attempts to commit, or advocates, abets,

advises or incites, directs or knowingly facilitates the commission of, a terrorist act or any act preparatory

to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be

less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

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stage, we cannot form an opinion that the accusation against her

under Section 18-B5

 of the 1967 Act is prima facie true.

34. So far as the allegation of prosecution of the appellant being member of

frontal organisation of CPI (Maoist), reference has been made to RDF,

IAPL, CPDR, AGMC and KKM. But apart from mere allegations that

these are frontal organizations of CPI (Maoist), no credible evidence

has been produced before us through which these organisations can

be connected to the aforesaid banned terrorist organization. Thus, the

offence under Section 20 of the 1967 Act relating to membership of

a terrorist organisation which is involved in a terrorist act, cannot be

made out against the appellant at this stage, on the basis of materials

produced before us. Relying on the judgement of this Court in the

case of Vernon (supra), we have already dealt with the position of

the appellant vis-à-vis terrorist acts in the earlier paragraphs of this

judgement and we prima facie do not think that Section 206

 of the

1967 Act can be made applicable against the appellant at this stage

of the proceeding based on the available materials.

35. The next set of allegations against her to bring her case within the

bail restricting provisions relates to offences specified under Chapter

VI of 1967 Act. This set of allegations relates to being associated

with a terrorist organization. We have already given our finding on

such allegations and in our prima facie opinion, the allegations of the

prosecution that the appellant is a member of a terrorist organisation

or that she associates herself or professes to associate herself with

a terrorist organization are not true, and at this stage, she cannot

be implicated in the offence under Sections 387

 of 1967 Act. Mere

5 18-B. Punishment for recruiting of any person or persons for terrorist act.—Whoever recruits or

causes to be recruited any person or persons for commission of a terrorist act shall be punishable with

imprisonment for a term which shall not be less than five years but which may extend to imprisonment

for life, and shall also be liable to fine.

6 20. Punishment for being member of terrorist gang or organisation.—Any person who is a member

of a terrorist gang or a terrorist organisation, which is involved in terrorist act, shall be punishable with

imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.

7 38. Offence relating to membership of a terrorist organisation.—

(1) A person, who associates himself, or professes to be associated, with a terrorist organisation

with intention to further its activities, commits an offence relating to membership of a terrorist

organisation:

Provided that this sub-section shall not apply where the person charged is able to prove—

(a) that the organisation was not declared as a terrorist organisation at the time when he became

a member or began to profess to be a member; and

(b) that he has not taken part in the activities of the organisation at any time during its inclusion

in the First Schedule as a terrorist organisation.

[2024] 4 S.C.R. 301

Shoma Kanti Sen v. The State of Maharashtra & Anr.

meeting of accused individuals or being connected with them through

any medium cannot implicate one in Chapter VI offences under of the

1967 Act, in the absence of any further evidence of being associated

with a terrorist organisation. Such association or connection must

be in relation to furtherance of terrorist act. It has been held by this

Court in the case of Vernon (supra):-

“32. “Terrorist act” as defined under Section 2(k) of the

1967 Act carries the meaning assigned to it in Section 15.

This Section also stipulates that the expressions “terrorism”

and “terrorist” shall be construed accordingly. This implies

construction of these two expressions in the same way as

has been done in Section 15.

“terrorist organisation” has been independently defined

in Section 2(m) to mean an organisation listed in the

First Schedule or an organisation operating under the

same name as an organisation so listed. But so far as

the word “terrorist” is concerned, in this Section also,

the interpretation thereof would be relatable to the same

expression as used in Section 15. It is one of the basic

rules of statutory construction that an expression used

in different parts of a statute shall ordinarily convey the

same meaning – unless contrary intention appears from

different parts of the same enactment itself. We do not

find any such contrary intention in the 1967 Act.

33. Section 38 of the 1967 Act carries the heading or title

“offence relating to membership of a terrorist organisation”.

As we have already observed, a terrorist act would have to

be construed having regard to the meaning assigned to it

in Section 15 thereof. We have given our interpretation to

this provision earlier. “terrorist organisation” [as employed

in Section 2(m)], in our opinion is not a mere nomenclature

and this expression would mean an organisation that carries

on or indulges in terrorist acts, as defined in said Section

15. The term terrorism, in view of the provisions of Section

(2) A person, who commits the offence relating to membership of a terrorist organisation under subsection (1), shall be punishable with imprisonment for a term not exceeding ten years, or with fine,

or with both.

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2(k) of the said Act, ought to be interpreted in tandem with

what is meant by ‘terrorist Act’ in Section 15 thereof.

34. In this context, to bring the appellants within the fold of

Section 38 of the 1967 Act, the prosecution ought to have

prima facie establish their association with intention to further

the said organisation’s terrorist activities. It is only when such

intention to further the terrorist activities is established prima

facie, appellants could be brought within the fold of the offence

relating to membership of a terrorist organisation. To bring

within the scope of Section 38 of the 1967 Act, it would not be

sufficient to demonstrate that one is an associate or someone

who professes to be associated with a terrorist organisation.

But there must be intention to further the activities of such

organisation on the part of the person implicated under

such provision. But the same line of reasoning in respect

of membership of a terrorist organisation under Section 20,

ought to apply in respect of an alleged offender implicated

in Section 38 of the 1967 Act. There must be evidence of

there being intention to be involved in a terrorist act. So far

as the appellants are concerned, at this stage there is no

such evidence before us on which we can rely.”

We, further, do not think the undated account statement has sufficient

probative value at this stage to prima facie sustain a case against

her and implicate her for offences relating to the provision of support

or raising of funds for a terrorist organisation, specified under

Section 398

 and 409

 of 1967 Act. Evidence of her involvement in

8 39. Offence relating to support given to a terrorist organisation. —

(1) A person commits the offence relating to support given for a terrorist organisation,—

(a) who, with intention to further the activity of a terrorist organisation,—

(i) invites support for the terrorist organisation, and

(ii) the support is not or is not restricted to provide money or other property within the

meaning of Section 40; or

(b) who, with intention to further the activity of a terrorist organisation, arranges, manages or

assists in arranging or managing a meeting which, he knows, is—

(i) to support the terrorist organisation, or

(ii) to further the activity of the terrorist organisation, or

(iii) to be addressed by a person who associates or professes to be associated with the

terrorist organisation; or

(c) who, with intention to further the activity of a terrorist organisation, addresses a meeting

for the purpose of encouraging support for the terrorist organisation or to further its activity.

(2) A person, who commits the offence relating to support given to a terrorist organisation under subsection (1) shall be punishable with imprisonment for a term not exceeding ten years, or with fine,

or with both.

9 40. Offence of raising fund for a terrorist organisation.—

[2024] 4 S.C.R. 303

Shoma Kanti Sen v. The State of Maharashtra & Anr.

any fund-raising activities for the CPI (Maoist) or her support to the

said organisation has not transpired through any reliable evidence

before us at this stage.

36. In the light of our observations made in this judgment and on our

perusal of the evidences collected against her as also the allegations

made by prosecution witnesses, we are of the opinion that there is

no reasonable ground for believing that the accusations against the

appellants for commission of the offences incorporated in Chapter

IV and VI of the 1967 Act are prima facie true.

37. In the case of K.A. Najeeb -vs- Union of India [(2021) 3 SCC 713],

a three Judge Bench of this Court (of which one of us Aniruddha

Bose, J was a party), has held that a Constitutional Court is not strictly

bound by the prohibitory provisions of grant of bail in the 1967 Act

and can exercise its constitutional jurisdiction to release an accused

on bail who has been incarcerated for a long period of time, relying

on Article 21 of Constitution of India. This decision was sought to

be distinguished by Mr. Nataraj on facts relying on judgment of this

Court in the case of Gurwinder Singh -vs- State of Punjab [2024

INSC 92]. In this judgment, it has been held:-

“32. The Appellant’s counsel has relied upon the case of

KA Najeeb (supra) to back its contention that the appellant

has been in jail for last five years which is contrary to

law laid down in the said case. While this argument may

appear compelling at first glance, it lacks depth and 22

substance. In KA Najeeb’s case this court was confronted

with a circumstance wherein except the respondent-

(1) A person commits the offence of raising fund for a terrorist organisation, who, with intention to

further the activity of a terrorist organisation,—

(a) invites another person to provide money or other property, and intends that it should be used,

or has reasonable cause to suspect that it might be used, for the purposes of terrorism; or

(b) receives money or other property, and intends that it should be used, or has reasonable

cause to suspect that it might be used, for the purposes of terrorism; or

(c) provides money or other property, and knows, or has reasonable cause to suspect, that it

would or might be used for the purposes of terrorism.

Explanation.—For the purposes of this sub-section, a reference to provide money or other property

includes—

(a) of its being given, lent or otherwise made available, whether or not for consideration; or

(b) raising, collecting or providing funds through production or smuggling or circulation of high

quality counterfeit Indian currency.

(2) A person, who commits the offence of raising fund for a terrorist organisation under sub-section

(1), shall be punishable with imprisonment for a term not exceeding fourteen years, or with fine,

or with both.

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accused, other co-accused had already undergone trial

and were sentenced to imprisonment of not exceeding

eight years therefore this court’s decision to consider

bail was grounded in the anticipation of the impending

sentence that the respondent accused might face upon

conviction and since the respondent-accused had already

served portion of the maximum imprisonment i.e., more

than five years, this court took it as a factor influencing its

assessment to grant bail. Further, in KA Najeeb’s case the

trial of the respondent-accused was severed from the other

co-accused owing to his absconding and he was traced

back in 2015 and was being separately tried thereafter and

the NIA had filed a long list of witnesses that were left to

be examined with reference to the said accused therefore

this court was of the view of unlikelihood of completion of

trial in near future. However, in the present case the trial is

already under way and 22 witnesses including the protected

witnesses have been examined. As already discussed, the

material available on record indicates the involvement of

the appellant in furtherance of terrorist activities backed

by members of banned terrorist organization involving

exchange of large quantum of money through different

channels which needs to be deciphered and therefore in

such a scenario if the appellant is released on bail there

is every likelihood that he will influence the key witnesses

of the case which might hamper the process of justice. 23

Therefore, mere delay in trial pertaining to grave offences

as one involved in the instant case cannot be used as a

ground to grant bail. Hence, the aforesaid argument on

the behalf the appellant cannot be accepted.”

38. Relying on this judgement, Mr. Nataraj, submits that bail is not a

fundamental right. Secondly, to be entitled to be enlarged on bail,

an accused charged with offences enumerated in Chapters IV and

VI of the 1967 Act, must fulfil the conditions specified in Section

43D (5) thereof. We do not accept the first part of this submission.

This Court has already accepted right of an accused under the said

offences of the 1967 Act to be enlarged on bail founding such right

on Article 21 of the Constitution of India. This was in the case of

Najeeb (supra), and in that judgment, long period of incarceration 

[2024] 4 S.C.R. 305

Shoma Kanti Sen v. The State of Maharashtra & Anr.

was held to be a valid ground to enlarge an accused on bail in

spite of the bail-restricting provision of Section 43D (5) of the 1967

Act. Pre-conviction detention is necessary to collect evidence (at

the investigation stage), to maintain purity in the course of trial and

also to prevent an accused from being fugitive from justice. Such

detention is also necessary to prevent further commission of offence

by the same accused. Depending on gravity and seriousness of the

offence alleged to have been committed by an accused, detention

before conclusion of trial at the investigation and post-chargesheet

stage has the sanction of law broadly on these reasonings. But

any form of deprival of liberty results in breach of Article 21 of the

Constitution of India and must be justified on the ground of being

reasonable, following a just and fair procedure and such deprival

must be proportionate in the facts of a given case. These would

be the overarching principles which the law Courts would have to

apply while testing prosecution’s plea of pre-trial detention, both at

investigation and post-chargesheet stage.

39. As regards second part of Mr. Nataraj’s argument which we have

noted in the preceding paragraph, we accept it with a qualification. The

reasoning in Najeeb’s (supra) case would also have to be examined,

if it is the Constitutional Court which is examining prosecution’s plea

for retaining in custody an accused charged with bail-restricting

offences. He cited the case of Gurwinder Singh (supra) in which

the judgement of K. A. Najeeb (supra) was distinguished on facts

and a judgment of the High Court rejecting the prayer for bail of the

appellant was upheld. But this was a judgment in the given facts of

that case and did not dislocate the axis of reasoning on constitutional

ground enunciated in the case of Najeeb (supra). On behalf of

the prosecution, another order of a Coordinate Bench passed on

18.01.2024, in the case of Mazhar Khan -vs- N.I.A. New Delhi

[Special Leave Petition (Crl) No. 14091 of 2023] was cited. In this

order, the petitioner’s prayer for overturning a bail-rejection order of the

High Court under similar provisions of the 1967 Act was rejected by

the Coordinate Bench applying the ratio of the case of Watali (supra)

judgment and also considering the case of Vernon (supra). We have

proceeded in this judgment accepting the restrictive provisions to be

valid and applicable and then dealt with the individual allegations in

terms of the proviso to Section 43D (5) of the 1967 Act. Thus, the

prosecution’s case, so far as the appellant is concerned, does not 

306 [2024] 4 S.C.R.

Digital Supreme Court Reports

gain any premium from the reasoning forming the basis of the case

of Mazhar Khan (supra).

40. Two authorities have been cited by the appellant in which gross

delay in trial was held to be a ground for granting bail in statutes in

which there was restriction on such grant. These are the judgements

of this court in the cases of Shaheen Welfare Association -vsUnion of India and Others [(1996) 2 SCC 616] and Angela Harish

Sontakke -vs- State of Maharashtra [(2021) 3 SCC 723]. But each

of these cases has been decided on their own facts and so far as

the appellant’s case is concerned, we have examined the materials

disclosed before us and given our finding as regards applicability of

Section 43D (5) of the 1967 Act in her case.

41. Once we find that Section 43D (5) of the 1967 Act would not be

applicable in the case of the appellant, we shall have to examine

the case of the appellant in relation to accusation against her

under Section 13 of the 1967 Act and also other offences under

the provisions of the 1860 Code, which we have narrated earlier.

We have already indicated that she is a lady of advanced age,

suffering from various ailments. The ailments by themselves may not

be serious enough for granting bail on medical ground. But taking

cognizance of the composite effect of delay in framing charge, period

of detention undergone by her, the nature of allegations against

her vis-à-vis the materials available before this Court at this stage

in addition to her age and medical condition, we do not think she

ought to be denied the privilege of being enlarged on bail pending

further process subsequent to issue of chargesheets against her

in the subject-case.

42. We repeat here that our observations as regards the nature of

allegations against her are only prima facie views and the future

course of her prosecution would be dependent upon framing of charge

and if charges are framed, the nature of evidence the prosecution

can adduce against her in trial as also her own defence. With these

observations, we set aside the impugned judgment and direct that

the appellant be released on bail on such conditions the Special

Court may consider fit and proper but the conditions shall include

the following:-

(a) The appellant shall not leave the State of Maharashtra without

leave of the Special Court.

[2024] 4 S.C.R. 307

Shoma Kanti Sen v. The State of Maharashtra & Anr.

(b) The appellant shall surrender her passport, if she possesses

one, with the Special Court, during the period she remains

enlarged on bail.

(c) The appellant shall inform the Investigating Officer of the NIA the

address where she shall reside during the period she remains

enlarged on bail.

(d) The appellant shall use only one mobile number, during the

time she remains on bail, and shall inform her mobile number

to the Investigating Officer of the NIA.

(e) The appellant shall also ensure that her mobile phone remains

active and charged round the clock so that she remains

constantly accessible throughout the period she remains

enlarged on bail.

(f) During this period, i.e. the period during which she remains on

bail, the appellant shall keep the location status (GPS) of her

mobile phone active, twenty-four hours a day, and her phone

shall be paired with that of the Investigating Officer of the NIA

to enable him, at any given time, to identify the appellants’

exact location.

(g) The appellant, while on bail, shall report to the Station House

Officer of the Police Station within whose jurisdiction she shall

reside, once every fortnight.

43. In the event there is breach of any of these conditions or any other

condition that may be imposed by the Special Court independently, it

would be open to the prosecution to seek cancellation of bail granted

to the appellant before the Special Court only, without any further

reference to this Court.

44. The appeal stands allowed in the above terms and Criminal

Miscellaneous Petition No.166531 of 2023 shall also stand disposed

of.

45. Pending application(s), if any, shall stand disposed of.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeal allowed.