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.”

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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 

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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, 

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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 

[2024] 4 S.C.R. 289

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 

290 [2024] 4 S.C.R.

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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” 

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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 

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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 

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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 

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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.