SC: Elaborate examination/dissection of evidence unnecessary for bail

The Hon’ble Supreme Court, today, i.e. on 2ndApril 2019, in the matter of National Investigation Agency v. Zahoor Ahmad Shah Watali pronounced that elaborate examination or dissection of the evidence is not required to be done at the stage of grant or non­-grant of bail. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.

The Hon’ble Supreme Court observed that:

By virtue of the proviso to sub­section (5)  of Section 43D  of the Unlawful Activities (Prevention) Act, 1967, 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 facietrue or otherwise. (Para 17)

There is 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 Unlawful Activities (Prevention) Act, 1967 that there are reasonable grounds for believing that the accusation against such person is “prima facie” true. (Para 17)

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 concerned accused 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. (Para 17)

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 opinion of accused “not guilty” of such offence as required under the other special enactments. (Para 17)

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 Unlawful Activities (Prevention) Act, 1967. (Para 17)

A priori, the exercise to be undertaken by the Court at this stage of giving reasons for grant or non­-grant of bail is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at the stage of grant or non­-grant of bail. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.  (Para 18)

While opining whether the accusation is “prima facie true or not, the opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the contents of the case diary and including the charge­sheet (report under Section 173 of Cr.P.C.) and other material gathered by the Investigating Agency during investigation. (Para 18)

The special provision, Section 43D of the Unlawful Activities (Prevention) Act, 1967, applies right from the stage of registration of FIR for offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof. To wit, soon after the arrest of the accused on the basis of the FIR registered against him, but before filing of the charge­sheet by the Investigating Agency; after filing of the first charge­sheet and before the filing of the supplementary or final charge­sheet consequent to further investigation under Section 173(8) Cr.P.C., until framing of the charges or after framing of the charges by the Court and recording of evidence of key witnesses etc. (Para 18)

The special provision, Section 43D of the Unlawful Activities (Prevention) Act, 1967, applies right from the stage of registration of FIR for offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof. To wit, soon after the arrest of the accused on the basis of the FIR registered against him, but before filing of the charge­sheet by the Investigating Agency; after filing of the first charge­sheet and before the filing of the supplementary or final charge­sheet consequent to further investigation under Section 173(8) Cr.P.C., until framing of the charges or after framing of the charges by the Court and recording of evidence of key witnesses etc. (Para 18)

However, once charges under Unlawful Activities (Prevention) Act, 1967 are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the court that despite the framing of charge, the materials presented along with the charge­sheet (report under Section 173 of Cr.P.C.), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Criminal Procedure Code. (Para 18)

For granting bail for offences under the Unlawful Activities (Prevention) Act, 1967, the totality of the material gathered by the Investigating Agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance. In any case, the question of discarding the document at the stage of grant non-grant of bail, on the ground of being inadmissible in evidence, is not permissible. For, the issue of admissibility of the document/evidence would be a matter for trial. The Court must look at the contents of the document and take such document into account as it is. (Para 19)

Issue regarding admissibility of the statements and efficacy of the certificates (required to be given in terms of Section 164(4) of Cr.P.C) given by the competent authority, appended to the redacted statements would be a matter for trial and subject to the evidence in reference to Section 463 of Cr.P.C. and cannot be overlooked at the stage of grant or non­-grant of bail. (Para 23)

Charge­sheet need not contain detailed analysis of the evidence. (Para 31)

At the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities. The Court is expected to apply its mind to ascertain whether the accusations against the accused are prima face true. (Para 35)

Copy of judgement: Judgement_02-Apr-2019

-Tushar Kaushik

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