Criminal Appeal No.897 of 2012

18th December, 2013

Petitioner Counsel: Mr. SANJIV PUNALEKAR
Respondent Counsel: Mr. KEVIC SETALVAD, . ANUPAM SURVE, Mr. SANDEEP K. SHINDE, Ms. USHA KEJRIVAL

Cases Cited:
Shaheen Welfare Association Vs. Union of India and Ors., JT 1996(2) 719 [Para 14]
Ranjitsingh Sharma Vs. State of Maharashtra, 2004 ALL MR (Cri) 1553=JT 2005(4) SC 123 [Para 14]
Gian Singh Vs. State of Punjab & Anr., 2013 ALL SCR 171=(2012) 10 SCC 303 [Para 15]
Bharat Mohan Rateshwar Vs. The National Investigation Agency, Cri. Appeal No.1194/2011, Dt.11/12/2012 [Para 15]
Jibangshu Paul Vs. National Investigation Agency, (NIA) (2012) 109 AIC (SUM 18) [Para 13,15]
Mohammad Navas Vs. National Investigation Agency, Cri. Appeal No.1473/2011, Dt.7/9/2011 [Para 15]
State of Maharashtra Vs. Vishwanath Maranna Shetty, 2012 ALL MR (Cri) 4095 (S.C.)=(2012) 10 SCC 561 [Para 15,19]
Yash Pal Mital Vs. The State of Punjab, AIR 1977 SC 2433 [Para 15]
Sardar Iqbal Singh Vs. State (Delhi Administration) & Ors., AIR 1977 SC 2437 [Para 15]
The State of Andhra Pradesh Vs. Cheemalapati Ganeswara Rao & Anr., AIR 1963 SC 1850 [Para 15]
The University of Delhi & Anr. Vs. Ram Nath & Ors., AIR 1963 SC 1873 [Para 15]
Baliya alias Bal Kishan Vs. State of Madhya Pradesh, 2012 ALL MR (Cri) 4129 (S.C.)=(2012) 9 SCC 696 [Para 15]

JUDGMENT

REVATI MOHITE DERE, J. :- By this appeal, preferred under Section 12 of the Maharashtra Control of Organised Crime Act, 1999 (for short, 'MCOC Act'), the appellant herein (original accused No.12), is challenging the order dated 31.3.2012 passed by the Special Judge (MCOC and NIA Act), at Mumbai, rejecting his application for bail, being Exhibit 714 in MCOC Special Case No.1 of 2009.

2. It would be necessary to advert to few facts as are necessary to decide the said Appeal. On 29.9.2008, at about 21.35 hours, there was a bomb explosion opposite Shakil Goods Transport Company between Anjuman chowk and Bhiku chowk, Malegaon, Dist.Nashik. The said blast took place pursuant to an explosive device fitted on a LML Freedom motorcycle bearing registration No.MH-15-3-4572. In the said explosion, six persons were killed and 101 persons were injured. It is alleged that the intention to cause the explosion was to strike terror in the people and cause loss of life and property and create communal rift so as to endanger internal security of the State, in the holy month of Ramzan and Navratri festival which was to commence on 30.9.2008. After preliminary enquiry, Crime No.130 of 2008 came to be registered at the Azad Nagar Police Station, Malegaon at 0300 hrs at 30.9.2008, for the offences punishable under sections 302, 307, 326, 324, 427, 153A, 120B of the Indian Penal Code r/w sections 3, 4, 5 and 6 of the Explosive Substances Act.

3. The exhibits collected from the place of explosion were sent to the Forensic Science Laboratory, Nashik. The FSL Report revealed that Cyclonite (RDX) and Ammonium Nitrate, were used in the explosives. Initial investigation revealed that the registration number of the LML Freedom Motorcycle used in the commission of crime was bogus and that the chassis and engine number were found to have been erased. However, the Forensic Science Laboratory successfully restored the original number and found the same to be GJ-05-DR-1920. The registration of the said vehicle was found to be in the name of Pragyasingh Chandrapalsingh Thakur (accused No.1), a resident of Surat. Accordingly, she came to be arrested on 23.10.2008 in Mumbai alongwith Shivnarayan Gopalsingh Kalsangra (accused No.2) and Shyam Bhavarlal Sahu (accused No.3). Investigations revealed that the motorcycle that was used in the blast belonged to Pragyasingh Thakur (accused No.1) and that the same was being used by her close associates, i.e. the wanted accused Ramji Kalsangra before the blast in Malegaon on 29.9.2008 and that the said vehicle was in his possession. Investigations also revealed the complicity of Major (Retd.) Ramesh Shivji Upadhyay (accused No.4) and Sameer Kulkarni (accused No.5), pursuant to which they came to be arrested on 28.10.2008. Investigations revealed that a criminal conspiracy was hatched by the arrested accused and the wanted accused for committing a terrorist attack at Malegaon by causing a blast with explosive substances. Investigations further revealed that some of the accused were associated with an organisation, by name 'Abhinav Bharat'. Other accused i.e. Ajay Rahirkar, Treasurer (accused No.6) of the said organisation and Rakesh Dhawde (Accused No.7) came to be arrested on 2.11.2008. During investigation, four imported prohibited firearms and 196 live cartridges came to be recovered at the instance of Rakesh Dhawde (Accused No.7). The said accused had led the police to the house of one Jagdish Mhatre (accused No.8) from whom also two imported prohibited firearms and 15 live cartridges came to be recovered on 3.11.2008.

4. Investigation of the eighth arrested accused i.e. Jagdish Mhatre revealed that Lt. Col. Prasad Purohit (Accused No.9) had floated an organisation by the name 'Abhinav Bharat' in 2006, inspite of being a serving commissioned officer in the Armed Forces of India, contrary to the service rules. It is alleged that he had collected huge amounts for himself and for his trust and was promoting fundamentalist ideology. It is alleged that the amount collected was given to Ajay Rahirkar (Accused No.6) a treasurer, who in turn disbursed the said amount as per the directions of Lt. Col. Purohit (Accused No.9) to persons, to procure weapons and explosives for their unlawful activities. The complicity of Sudhakar Dhar Dwivedi @ Swami Amrutanand Devthirth @ Dayanand Pandey (accused No.10), was also revealed and therefore, he was arrested on 12.11.2008 at Lucknow, Uttar Pradesh. One Sudhakar Chaturvedi (accused No.11) also came to be arrested on 20.11.2008. Accordingly, the ATS filed a charge-sheet on 20.1.2009 as against 11 accused and two wanted accused in the Court of the Special Judge under the MCOC Act.

5. Investigations revealed that several meetings were held at various places and that in one of the meetings held at Anangpur Temple, Faridabad, Haryana of the 'Abhinav Bharat' on 25/26.1.2008, accused Nos.4, 9, 5, 10, 11 and some other witnesses were present. The said meeting held was audio recorded and was found to be in the laptop of Sudhakar Dhar Dwivedi @Dayanand Pandey, (Accused No.10) which came to be transcribed. All the accused were heard discussing several issues of the country for two and half hours in a closed room of the Anangpur temple. Sudhakar Dhar Dwivedi @Dayanand Pandey (Accused No.10), Lt.Col. Purohit (Accused No.9) were vocal ; they wanted to fight against the constitution and for their independence by creating a separate Hindu Rashtra. According to Lt.Col. Purohit (Accused No.9), the present independence was nothing but a transfer of power from the British to the present Government. In this meeting, the accused stated that what was happening in India today was that they were held hostages to the agenda of secularist parties. In this meeting, Lt. Col. Purohit (Accused No.9) lectured on history and politics and emphasized on strengthening a Bhartiya culture alongwith nationalism as defined in Hindu vedic literature supported by religion. Sudhakar Dhar Dwivedi @Dayanand Pandey (Accused No.10) and others who were present in the meeting subscribed to the same thoughts, expressed by Lt. Col. Purohit (Accused No.9). According to the prosecution, Witness Nos.79, 112 and 121 have given details of the proceedings of the said meeting in their statements recorded under Section 161 of the Cr.P.C. and statements of witness Nos. 79 and 112 have also been recorded under Section 164 of the Cr.P.C. Sudhakar Dhar Dwivedi @Dayanand Pandey (Accused No.10) in his confessional statement has given details of the said meeting held in the closed room, at Anangpur temple. In this meeting, it was discussed to overawe the democratic set up of the Indian Government by creating a separate Hindu Rashtra with its own Constitution, flag and other administrative set up.

6. During investigation, the complicity of the present appellant/accused was revealed and he came to be arrested on 1.2.2011. According to the prosecution, several meetings and discussions were held at several places which were attended to by the accused, witnesses and some other persons. The thrust of the meetings was to overawe the democratic set up of the Indian government by creating a separate Hindu Rashtra with its own constitution, flag and other administrative set up. It is alleged that Lt. Col. Prasad Purohit (accused No.9) being a serving officer in the Indian Army, advocated and incited others by his inflammatory talks against the Government of India. According to the prosecution, in a public meeting held at the Shri Ram Temple at Bhopal on 11th/12th April, 2008 inflammatory speeches were made by the accused persons. Apart from the public meetings that were held by the accused, there were also secret meetings, which were held behind closed doors which were attended to by the accused and witness Nos.79, 112, 118 and 121. It is alleged that in the said meetings it was decided to take revenge against the Muslims by exploding bombs at Malegaon, which is a predominantly a Muslim dominated area. It is alleged that several meetings were held thereafter; on 29.6.2008 at Sindhi Dharmashala, Jabalpur, Madhya Pradesh; on 3.8.2008 in the Mahakaleshwar Temple Dharmashala, Ujjain, Madhya Pradesh. The meetings pertained to discussions relating to retaliation to the killings by the Muslims; for procurement of RDX; purchase of firearms etc.

7. In the meeting held on 3rd August, 2008 at Ujjain, Sudhakar Dhar Dwivedi @Dayanand Pandey (Accused No.10) had asked Lt. Col. Prasad Purohit (Accused No.9) to provide explosives to the wanted accused Ramji Kalasangra and Sandeep Dange and the same has been stated by Sudhakar Pandey in his confessional statement. Lt. Col. Prasad Purohit (Accused No.9) had asked Rakesh Dhawde (Accused No.7) in August, 2008 to procure RDX for giving it to the wanted accused Ramji Kalasangra and Sandeep Dange, the henchmen of Pragyasingh Thakur (Accused No.1). As Rakesh Dhawde (Accused No.7) could not manage the same, he accordingly informed Lt. Col. Prasad Purohit (Accused No.9) about the same. After some days, it is alleged that Lt. Col. Prasad Purohit (Accused No.9) told Rakesh Dhawde (Accused No.7) that he had procured RDX by other means and had caused the bomb blast at Malegaon with it. It is in the confessional statement of Rakesh Dhawde (Accused No.7) that he knew Lt. Col. Prasad Purohit (Accused No.9) since 2005. It is alleged that the association of Rakesh Dhawde (Accused No.7) with Lt. Col. Prasad Purohit (Accused No.9) shows, that he had prior knowledge that Rakesh Dhawde (Accused No.7) was instrumental in committing similar offences of bomb blasts at various places like Parbhani, Jalna, Purna and Nanded.

8. In the meeting held at Nashik, the details of the working of 'Abhinav Bharat' and planning of the camp to be arranged at Panchmarhi from 16th October, 2008 to 20th October, 2008 also came to be discussed. It is alleged that Ajay Rahirkar (Accused No.6) gave Rs.1,500/- to the present appellant-accused on the instructions of Lt. Col. Prasad Purohit (accused No.9), after the meeting held at Nashik. The decision with respect to weapons was given to Lt. Col. Prasad Purohit (Accused No.9) and Ramesh Upadhyay (accused No.4). Similarly, nominations for the post of President, Secretary and the States In-Charge as well as Treasurer of Abhinav Bharat were done. All the accounts of the said organisation of collecting and maintaining and handing over the reports was entrusted to Ajay Rahirkar (accused No.6).

9. According the prosecution, in the investigation, it was revealed that the present appellant, who was a member of the Shriram Sena, was introduced to Lt. Col. Prasad Purohit (accused No.9) by one of the witnesses. The present appellant is a resident of Gokak, Belgaum, Karnataka. His name figured in the statements of a number of witnesses and in the first charge-sheet which came to be filed against the eleven accused.

10. The appellant/accused was arrested by the Anti Terrorist Squad (for short, 'ATS') on 1.2.2011 and came to be produced before the Special Court. After investigation, supplementary charge-sheet came to be filed against him. The said appellant was one of the accused, who was arrested alongwith several other accused, who were all charge-sheeted under the MCOC Act as well as the Unlawful Activities (Prevention) Act, 967 (for short, 'UAPA'). They were charge-sheeted for the offences punishable under sections 120B of the Indian Penal Code r/w sections 302, 307, 326, 324, 153-A(1)(b), 427 r/w 419 and 420 of the Indian Penal Code, sections 3, 5, 25 of the Arms Act of 1959, sections 3, 4, 5 and 6 of the Explosive Substances Act, 1908, Section 15 of the UAP Act, punishable under sections 13, 16, 17, 18, 18B, 20 and 23 of the UAP Act, r/w sections 3(1)(i), 3(1)(ii), 3(2), 3(4), 3(5) of the MCOC Act. As the appellant/accused was absconding before the charge-sheet was filed against the 11 accused, he came to be arrested subsequently after his complicity was disclosed in the said case. Accordingly, a supplementary charge-sheet came to be filed against the present appellant/accused on 21.4.2011. The case which was investigated initially by the ATS, pursuant to an order dated 1.4.2011 passed by the Joint Secretary of the Government of India, Ministry of Home Affairs (Internal Security-I Division), New Delhi came to be transferred to the National Investigation Agency (for short, 'NIA') considering the gravity of the offence and as the offence fell under the scheduled offences under the National Investigation Agency Act, as they were connected to the security of the State. The Central Government suo moto directed the National Investigation Agency to take up the investigation of the said case in exercise of the powers conferred on it, under subsection (5) of section 6 r/w 8 of the National Investigation Agency Act. Pursuant to the order, Crime No.5 of 2011 came to be registered in the NIA police station, New Delhi and the NIA took charge of the papers and all material pertaining to the said case from the ATS on 27.5.2011.

11. Thus, according to the prosecution, the material collected disclosed the complicity of the appellant / accused and that he had obtained training in the making of fuse of the bombs, from Rakesh Dhawde (accused No.7) on 20/21.9.2008 at the Bhosala Military School i.e., prior to the commission of the offence. Statements of witnesses recorded show the complicity of the appellant/accused. Witness No.55 has stated that there was a meeting at the Bhosala Military School at Nashik on 15/16.9.2008 in which Ramesh Shivji Upadhyay (accused No.4), Ajay Rahirkar, Treasurer (Accused No.6), Sudhakar Chaturvedi (accused No.11), witness No.27, Lt.Col. Purohit (Accused No.9) and the present appellant/accused were present. It is further alleged by the prosecution that from the material that was collected by them, offences under the UAPA were also clearly disclosed. The unlawful activities which are alleged to have been committed by all the accused were listed as follows:

(a) Utilizing the organisation Abhinav Bharat as a front for propagating hatred against people who are against their ideology.

(b) Preparing for a government in exile with the idology of Hindu Rashtra alone, contrary to the secular policy of the government enshrined in the Constitution of India.

(c) Preparing for overawing the government.

(d) To threaten the unity, integrity and security of India.

(e) To strike terror in the people by causing explosions.

(f) Conspiring to do away with some of the members of RSS, who are against their ideology.

(g) Conspiring to eliminate those who are against their ideology.

(h) Raising funds, collecting weapons, explosives, etc., for committing the unlawful activities and for their own pecuniary benefits.

(i) Drafting a constitution of their own for separate Hindu Rashtra in derogation of the Constitution of India.

(j) Preparing to hoist a Bhagwa flag as national flag for separate Hindu Rashtra, which is against the constitution of India.

(k) Recruiting like-minded people for the unlawful activities.

(l) Recruiting experts in assembling explosives and taking their services to achieve the targets, etc.

(m) Inciting the people by showing CDs of torture so that they join hands with them.

According to the prosecution, transcripts of the audio and video files retrieved from the laptop of Sudhakar Dhar Dwivedi @ Swami Amritanand Devthirth @ Dayanand Pandey (accused No.10) by the forensic experts, show that the conspirators were planning towards their object in forming their own government, i.e., Hindu Rashtra against the secularist concept of the Constitution of India. According to the prosecution, the activities of the conspirators, i.e., during the period from January to September, 2008, were committed by them with the intent to incite individuals and groups of individuals to bring about cession or secession which amounted to unlawful activities. It is alleged that the unlawful activities of the conspirators and the preparation made by them were to disclaim, question, to disrupt, intended to disrupt the sovereignty and territorial integrity of India and/or to cause, intend to cause disaffection of India.

12. According to the prosecution, investigation revealed the complicity of all the accused in the said crime, inasmuch as the evidence collected was in the form of recovery of firearms and ammunitions, FSL report (possession of RDX matched with the explosives found at the place of offence at Malegaon), SMSs which were retrieved by the experts of the FSL, Kalina, etc.

13. We have heard the learned Counsel Mr. Sanjiv Punalekar for the appellant and the learned Additional Solicitor General Mr.Kevic Setalvad for the National Investigation Agency. We have perused the relevant record relied upon and placed before us by both the parties.

14. The learned Counsel for the appellant Mr. Punalekar contended that, although the confessional statement of the appellant/accused has been recorded under Section 18 of MCOC Act on 17/18.02.2011, the same has been retracted at the first available opportunity by the appellant. He further urged that there was absolutely no evidence of 'criminal conspiracy' vis-a-vis the present appellant that he committed the alleged offences with the other accused. He further urged that even if the retraction is excluded from consideration, a perusal of the confessional statement of the appellant does not show his complicity with the alleged offence of 'criminal conspiracy' with which he is charged and as such sought bail on the said ground. He also contended that the witnesses whose statements have been recorded do not throw any light with regard to the appellants complicity in the said crime. In support of his contention for grant of bail to the appellant who is an undertrial, he relied on the Judgments of the Apex Court in Shaheen Welfare Association v/s. Union of India and Ors. JT 1996(2) 719; Ranjitsingh Sharma v/s. State of Maharashtra, JT 2005(4) SC 123 : [2004 ALL MR (Cri) 1553].

15. Per contra, the learned A.S.G. Mr. Setalvad contended that the appellant's application for bail has rightly been rejected by the Special Judge, by a reasoned order and ought not to be interfered with. He stated that there is enough material collected by the prosecution, which prima facie shows the complicity of the present appellant in the crime. He further contended that the retracted statement cannot be considered at this stage and that the confessional statement coupled with the statement of witnesses clearly reveal the role of the appellant/accused in the 'criminal conspiracy' with which he has been charged. He took us through the confessional statement of the appellant and the statements of the relevant witnesses, which corroborate the said confessional statement and show the complicity of the appellant in the said crime. According to him, the material on record prima facie shows that there are reasonable grounds for believing that the appellant was involved in the criminal conspiracy. He therefore urged, that in view of Section 21(4) of the MCOC Act, and considering the material as against the appellant, the appellant ought not to be enlarged on bail. In support of his contention, the learned ASG relied upon the following Judgments - Gian Singh vs. State of Punjab & Anr.(2012) 10 SCC 303 : [2013 ALL SCR 171]; Bharat Mohan Rateshwar v. The National Investigation Agency Cri. Appeal No.1194/2011 dated 11.12.2012; Jibangshu Paul v. National Investigation Agency (NIA) (2012) 109 AIC (SUM 18) 13; Mohammad Navas v. National Investigation Agency Cri. Appeal No.1473/2011 dated 7.9.2011; State of Maharashtra v. Vishwanath Maranna Shetty (2012) 10 SCC 561 : [2012 ALL MR (Cri) 4095 (S.C.)]; Yash Pal Mital v. The State of Punjab AIR 1977 SC 2433; Sardar Iqbal Singh v. State (Delhi Administration) & Ors. AIR 1977 SC 2437; The State of Andhra Pradesh v. Cheemalapati Ganeswara Rao & Anr. AIR 1963 SC 1850; The University of Delhi & Anr. v. Ram Nath & Ors. AIR 1963 SC 1873; Baliya alias Bal Kishan v. State of Madhya Pradesh (2012) 9 SCC 696 : [2012 ALL MR (Cri) 4129 (S.C.)];

16. In order to appreciate the rival contentions, it would be useful to refer to the relevant provision of the MCOC Act, with regard to grant of bail which is reproduced hereinbelow; i.e. sub-section 4 of Section 21:

"21. Modified application of certain provisions of the code.

(1) ...................

(2) ..................

(3) ...................

(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless-

(a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and

(b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that lie is not likely to commit any offence while on bail.

(5) ...................

(6) The limitations on granting of bail specified in sub-section (4) are in addition to the limitations under the Code or any other law for the time being in force on the granting of bail.

(7) ...................

17. Sub-section (4) of Section 21, mandates that it is incumbent on the part of the Court before granting bail to any person accused of an offence punishable under the MCOC Act that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Section 21(4) of the MCOC Act must be construed rationally. It must be so construed, that the Court is able to strike a delicate balance between a Judgment of acquittal or conviction and the order granting bail, much before the commencement of the trial. The duty of the Court, therefore, at the stage of grant of bail is not weighing the evidence meticulously, but to arrive at a finding on the basis of broad probabilities. In fact, on a bare reading of the non obstante clause, in the aforesaid sub-section 4 of Section 21, shows that the power to grant bail by the High Court or the Court of Sessions is not only subject to the limitation imposed by Section 439 of the Code but is also subject to the limitation imposed by Section 21(4) of the MCOC Act. The conditions stipulated in the said Section are cumulative and not alternative. The satisfaction contemplated with regard to the accused being not guilty has to be based on reasonable grounds. The expression 'reasonable grounds' has not been defined in the said Act but means something more than prima-facie grounds. It contemplates, substantial probable causes for believing that the accused is not guilty of the alleged offences with which he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances, as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.

18. A perusal of the Judgments relied upon by the learned A.S.G. with regard to grant of bail under Section 21(4) of the MCOC Act, show that the Court is not required to arrive at a positive finding that an accused has not committed an offence under the said Act. What is required to be considered is whether there is a 'prima facie case'. The law relating to grant of bail under the MCOC Act is well-settled, by a catena of cases.

19. It is pertinent to note that the Apex Court in the State of Maharashtra v/s. Vishwanath Maranna Shetty (2012) 10 SCC 561 : [2012 ALL MR (Cri) 4095 (S.C.)] has observed in paragraph 29 as under :-

29. While dealing with a special statue like MCOCA, having regard to the provisions contained in sub-section (4) of Section 21 of this 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. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organized 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. In view of the above, we also reiterate that when a prosecution is for offence(s) under a special statute and that statute contains specific provisions for dealing with matter arising thereunder, these provisions cannot be ignored while dealing with such an application. Since the respondent has been charged with the offence under MCOCA, while dealing with his application for grant of bail, in addition to the broad principles to be applied in prosecution for the offences under IPC, the relevant provisions in the said statute, namely sub-section (4) of Section 21 has to be kept in mind. It is also further made clear that a bare reading of the non obstante clause in sub-section(4) of Section 21 of MCOCA that the power to grant bail to a person accused of having committed offence under the said Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 but also subject to the restrictions placed by clauses (a) and (b) of sub-section (4) of Section 21. Apart from giving an opportunity to the prosecutor to oppose the application for such release, the other twin conditions viz. (i) the satisfaction of the court there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. The satisfaction contemplated in clauses (a) and (b) of sub-section (4) of Section 21 regarding the accused being not guilty , has to be based on 'reasonable grounds". Though the expression "reasonable grounds" has not been defined in the Act, it is presumed that it is something more than prima facie grounds. We reiterate that recording of satisfaction on the aspect mentioned in clauses(a) and (b) of sub-section (4) of Section 21 is since qua non for granting bail under MCOCA.

20. Keeping in mind the aforesaid, we propose to now deal with the submissions and the material placed before us by the learned counsel for the parties. We have gone through the material relied upon by the prosecution i.e. the confessional statement of the appellant and the relevant statements of witnesses. The relevant portions (English Translation) of the confessional statement of the appellant recorded under Section 18 of the MCOC Act is as under :

..............

"I am a worker of Sriram Sene since year 2001. I came in the contact of (name withheld) Vice President, North State of the said Sriram Sene. Whenever we met, we used to discuss the number of Hindus who have lost their precious lives at different places in various Bomb Blasts in our country, India. Due to that, I used to feel that we, being Hindus must retaliate by giving a fitting reply. I gathered all the information on the Internet with regard to the material required and the technique of assembling a bomb and I conveyed this information to the aforesaid person.

...........

"At about 12.30 p.m. on 16.7.2008, we reached Pachmarhi................ It is there where I met the said Shri Shriyank for the first time personally in my life. Col. Shriyank questioned me regarding me and my knowledge of explosives. I gave him information relating to RDX, TNT, Black Powder, Detonators. Then the said Col. Asked me "Would you work with me?" As I too had something in my mind, to render some sort of service to the Hindu cause, I agreed to work with the Colonel Shriyank........"

"...... He (Col. Purohit) was telling me about the contemporary activities going on around our country within India. He used to tell me that the Communist Party, Congress Party, Mulayam Singh Yadav are helping Muslims because they need their votes and are fighting for them thereby putting Hindus there under great stress and strain. In the future, if it goes on like this, Hindus have to face great calamity. I too agreed with his said view by expressing my consent with him."

"........... Sameer Kulkarni and Purohit used to hold discussions regarding Abhinav Bharat Organization. One day Purohit said that in one of the villages near Pachmarhi there was a rise in the number of people that converted to Christianity. Therefore, a proposal was discussed to go there and kill the workers of said Missionery Organization. At that time, Purohit asked me to accompany Sameer who was going there. For the said purpose, through a mechanic's agent, Purohit purchased a Motor Cycle for Sameer for a price of Rs. 20,000/- The Motorcycle was a Pulsar."

"Meanwhile, Prasad Purohit instructed me to meet one Sudhakar Chaturvedi at Deolali camp at Nasik enroute Gokak Trip. At that time I was also paid an amount of Rs.1500/- to meet my journey expenses. Simultaneously Purohit also gave me the Mobile No. of said Sudhakar Chaturvedi and informed me that the said Sudhakar Chaturvedi will arrive at Nashik Station to pick me up."

"Accordingly, on 27.08.2008, when I reached Nashik, a person named Sudhakar Chaturvedi came there to pick me up........ Thereafter in the night, I stayed in the room of Sudhakar Chaturvedi. At that time, Chaturvedi gave me information about Abhinav Bharat on his Laptop and also showed me a C.D. of "the sabha" of Abhinav Bharat held at Nashik. At that time, Chaturvedi handed me over an IDEA Co. simcard for my usage in Nashik."

"I was called to Purohit's house on 27.09.2008 by Purohit himself. After I went there to meet him on the said date, I gave elaborate details of the training given to me by 'Rao' regarding detonator fuses at Military Guest House. Purohit then asked me for a demonstration of the detonator fuses. Then, I went to an electrical shop from where I procured wire, bulb, Gul Powder etc., assembled them before Purohit as I had learnt through Rao alias Rakesh Dhawade, connected the circuit and showed a visual demonstration of detonator fuse."

"As Prasad Purohit was as Military officer, he could not participate in each and every open and underground tasks of the "Organization".

Therefore, through the medium of this Organization, he trained the youth and turned them into like minded youth in accordance with the line of thought similar to that of said Prasad Purohit. As Bomb Blasts were occurring repeatedly in our country, in retaliation, he too organized youth for training them to prepare for similar bomb blasts and then used them for his destruction activities in which I took part."

21. A perusal of the aforesaid relevant paragraphs clearly shows the complicity of the appellant/accused, that he too had taken part in the 'criminal conspiracy'. According to us, the words "in which I took part" i.e. in Hindi "eS Hkh 'kkfey Fkk", prima facie, shows that he had taken part in the criminal conspiracy alongwith the other accused.

22. Although, the learned Counsel for the appellant contended before us that the said confession of the appellant has been retracted by him, the said retraction cannot be considered or gone into at this stage and will have to be gone into only at the stage of trial.

23. Apart from the confessional statement of the appellant, recorded under Section 18 of the MCOC Act, there are statements of witnesses which corroborate the said confessional statement. We have perused the statements of relevant witnesses. Witness No.38 had disclosed that in July, 2008, on the day of Guru Poornima, Rakesh Dhawde (accused No.7) had gone to Panchmarhi to the house of Lt. Col. Purohit (Accused No.9) where he met the present appellant, assistant of Lt. Col. Purohit (Accused No.9) and two Hindi speaking persons. According to the said witness, in the house of Lt. Col. Purohit (Accused No.9), Rakesh Dhawde (accused No.7) had imparted training on how to prepare fuse of the bomb. The said witness has been corroborated by witness No.39. Witness No.80, who was a Subhedar of the Military Intelligence at Devlali Camp, has stated that on 17.9.2008, Sudhakar Chaturvedi (accused No.11) had kept the keys of his house at Devlali in the office of the Military Intelligence at Devlali Camp before going to his native place and had requested him to hand over the keys to the present appellant/accused. Accordingly, the said witness had requested witness No.149 to hand over the keys to the appellant/accused and the same has been confirmed by witness No.80 in his statement recorded u/s 164 of the Cr.P.C. The appellant/accused has also been identified in the Test Identification Parade which came to be held on 16.3.2011, by witness No.80. The said witness has further stated that he had arranged food for the appellant/accused in the office of Devlali camp, in the first week of September, 2008 on the instructions of Lt. Col. Purohit (accused No.9) and on 20.9.2008, he had handed over the keys of the house of Sudhakar Chaturvedi (accused No.11) to the appellant/accused.

24. Similarly, witness No.55 has also disclosed in his statement that on 16.9.2008, the present appellant/accused was present at the Bhosala Military School alongwith Ramesh Shivji Upadhyay (accused No.4), Ajay Rahirkar (accused No.6), Sudhakar Chaturvedi ( accused No.11) and Lt. Col. Prasad Purohit (accused No.9). He has disclosed that the appellant/accused was stationed at the residence of Sudhakar Chaturvedi (accused No.11) from 27th to 29th August, 2008. The said fact is also disclosed by the appellant/accused in his confessional statement, which has been recorded u/s 18 of the MCOC Act.

25. Similarly, witness No.160, who lived in the neighbourhood of Sudhakar Chaturvedi (accused No.11) has also disclosed, that the appellant had come to his house in the 3rd week of September, 2008 and had kept a bag in his house, stating that the house of the Sudhakar Chaturvedi (accused No.11) was locked. The said witness has also identified the appellant in the Test Identification Parade as being the same person who had stayed in the house of Sudhakar Chaturvedi (accused No.11). According to the prosecution, the improvised explosive device was assembled inside the said room and that swabs which were taken from the said house clearly showed that it contained RDX, which was similar to the traces of RDX which was found at the scene of the offence. Another witness, being witness No.162 had disclosed, that the appellant had stayed at Payal Cottage at Panchmarhi on 16.7.2008 alongwith Sameer Kulkarni (accused No.5) and had again stayed in the same Payal Cottage on 13.8.2008 but in the fake name of one Praveen V Naik r/o. Sangli, Pune. It is alleged, that from a perusal of the statements of witness Nos.38 and 39, it was clearly evident that the appellant had taken training in making fuse of the bomb. Even the appellant had admitted the same in his confessional statement that he had received training once at Panchmarhi, M.P. and then at Bhosala Military School, Nashik. He had stated that Ajay Rahirkar (accused No.6) used to finance the appellant as per the instructions that were given by Lt. Col. Prasad Purohit (accused No.9). Similarly, witness No.164 has also disclosed that the appellant had stayed in Panchmarhi from 13.8.2008 to 20.10.2008 intermittently and in between had gone to Gogak. The said witness is the owner of the room that was rented by the appellant. The said witness and witness No.162 have identified the appellant in the test identification parade, which was conducted on 16.2.2011.

26. Witness No.55 has also disclosed in his statement that the appellant, had attended the meeting organised by Lt. Col. Prasad Purohit (accused No.9) on 15/16.9.2008 at Bhosala Military School, Nashik. The said fact has also been corroborated by witness No.59. In the said meeting, it was decided to conduct one more training camp at Panchmarhi for training people in armory and that the appellant had attended such a training camp at Panchmarhi from 16.10.2008 to 21.10.2008 alongwith witness Nos.165, 167, 168 and 169. The statement of the said witnesses have been recorded u/s 164 of the Cr.P.C. Witness Nos.172, 173 were the physical trainers, who were roped in by Lt. Col. Prasad Purohit (accused No.9) for imparting training.

27. According to the prosecution, the statements of witness Nos.80, 160, 162, 164 to 169, 172 to 174 revealed the complicity of the present appellant in the said crime. It has come in the statement of witness No.166 that he knew the appellant since 2001, as a Bajrang Dal worker and used to meet him during his visits at Belgaum and used to share information about Islamic terrorism gathered from the internet, training camps and the method of preparing bomb. The said witness had attended a meeting at Pune in November 2007 in which Lt. Col. Prasad Purohit (accused No.9) Swami Aseemanand and some other witnesses of this case and representatives of Hindutva organisation were present. According to the said witness, he had sent the appellant to Panchmarhi to meet Lt. Col. Prasad Purohit (accused No.9) telling him that Lt. Col. Prasad Purohit (accused No.9) is known as Shreyank in that area. According to the witness No.166, after returning from Panchmarhi, the appellant met him at Belgaum and told him about the meeting in which Lt. Col. Prasad Purohit (accused No.9) offered him to work for the organisation Abhinav Bharat. It is alleged that the appellant told the witness in September, 2008 about his stay with Sudhakar Chaturvedi (accused No.11). It is further alleged that after the arrest of Lt. Col. Prasad Purohit (accused No.9), this witness met the appellant and enquired about his involvement as his name was reflected in the investigation and at that time, it is alleged that the appellant was tense and had told the witness that his name is being reflected as Pravin Mutalik and therefore he would not be traced. He is also alleged to have disclosed to the said witness, that Lt. Col. Prasad Purohit (accused No.9) wanted to use his services under the banner of the organisation Abhinav Bharat, for training camps for like minded youth, to adopt his ideology and also to commit terrorist activities by retaliating to the bomb explosions committed by Muslims across the country.

28. Witness No.165 has stated that he knew the appellant as an Abhinav Bharat worker and had also attended a training programme of Bajrang Dal alongwith witness Nos.167 to 169. According to this witness, he alongwith witness Nos.167 to 169 went to Panchmarhi on 13.10.2008, where the training camp was held and introduced them to Sameer Kulkarni ( accused No.5), Lt. Col. Prasad Purohit (accused No.9) and Sudhakar Chaturvedi (accused No.11). According to the said witnesses, they were given physical training, taught yoga, shown speeches on international blogs, Jehad and atrocities committed on Hindu community. They were also shown videos of plane hijacking, etc. The statements of the witnesses have also been recorded under section 164 where they reiterated the said facts. According to the prosecution, the said evidence was corroborated by the confessional statement of the Appellant u/s 18 of the MCOC Act.

29. The statement of witness no.165 is corroborated by witness no.166. Witness no.166 in his statement recorded on 17th February, 2011 has stated that he was the district head of the Bajrang Dal, Belgaum in 2001 and as a result of same he was acquainted with the appellant/accused, who was one of the workers. It is stated that the appellant /accused used to come from time to time to his shop in search of employment. He has stated that from the conversation, he gathered that the appellant was a devoted Hindutwavadi and would discuss about offences in the country, bomb blast, terrorist attacks, etc., committed by Muslims and Christians, on Hindus. The appellant also allegedly discussed about the Al-Qaeda organisation, terrorist training centres, Islamic terrorism and the bomb blasts that were happening in the country. The said witness has stated that the said information was gathered by the appellant/accused from the internet. The said witness no.166 has further stated that he met Lt. Col. Purohit (Accused No.9) and Swami Aseemanand in November 2009 at a prize distribution ceremony, where he learned that Lt. Col. Purohit (Accused No.9) was working with the 'Abhinav Bharat' organisation. Thereafter, it is alleged that the appellant met Lt. Col. Purohit (Accused No.9) and told him that from the internet he had studied the modus operandi of terrorist organisations, training camps and the procedure for preparing bombs and has also mentioned that he did not know that it was so easy to prepare bombs. It is further stated that the appellant went to meet the said witness at his shop in search of employment. The said witness asked the appellant to meet Lt. Col. Purohit (Accused No.9), pursuant to which the two met. Accordingly, the appellant went to Bhopal where he was received by Sameer Kulkarni (accused No.5) and was taken from there to Panchmarhi where he was to meet Lt. Col. Purohit (Accused No.9). It is stated that in Bhopal the appellant met a person by the name Sameer and on the next day Lt. Col. Purohit (Accused No.9) asked him to work full time with their organisation 'Abhinav Bharat' for which he would be paid Rs.15,000/- p.m. It is stated that the appellant returned back to Gokak thereafter and in August went back to Panchmarhi where he started working with Lt. Col. Purohit (Accused No.9). He has stated that he used to receive phone calls from Lt. Col. Purohit (Accused No.9) from time to time and that they discussed about the appellant/accused. Lt. Col. Purohit (Accused No.9) is alleged to have told that the appellant/accused was a faithful person and could work in the organisation. Witness no.166 has further stated that the appellant thereafter came back to Belgaum in the first week of September and had met him and told him that a physical training camp was organised in Panchmarhi in October, 2008 by the said organisation and that he would be taking youth from Gokak for the training. The appellant allegedly also disclosed to the said witness that he had become a full time worker of the Abhinav Bharat and that he would go to the house of Lt. Col. Purohit (Accused No.9) at Nasik. The said witness has further stated that after the bomb blast at Malegaon and after the news of arrest of the Pragyasingh Chandrapalsingh Thakur (accused No.1), Lt. Col. Purohit (Accused No.9) and Sudhakar Chaturvedi (accused No.11) in the media, he telephoned the appellant who was at Belgaum and asked him about the arrest of the three persons. He has stated that the appellant disclosed to him that he had suspected that the arrested person had played a role in the Malegaon blast. He has further stated that the appellant disclosed to him that the work undertaken by Lt. Col. Purohit (Accused No.9) and others was suspicious and that Lt. Col. Purohit (Accused No.9) an army officer was organising training camps for youths and was going to use them for causing bomb blast as a retaliation to the bomb blasts which had taken place in the country. He has stated that the appellant was under stress at that time.

30. Insofar, as formulation of an organised crime syndicate is concerned, in the present case Rakesh Dhawde (Accused No.7) is charge-sheeted in the Court of Parbhani and Jalna for having caused the bomb explosion at Parbhani on 21st November, 2003 at 13.45 hrs at the Mohamadia Masjid, the bomb explosion at Kadria Masjid in Jalna on 27th August, 2004 at 13.45 hrs. The bomb explosion in the present case took place at Malegaon at 21.25 hours. In all the aforesaid incidents, the common thread appears to be hatred towards the Muslim community, pursuant to which bomb explosions were carried out at these places. It appears from the material on record that since 2005, Lt. Col. Prasad Purohit (accused No.9) knew about Rakesh Dhawde's (Accused No.7) activity and that Rakesh Dhawde had committed bomb blasts at various places. The confessional statement of Sudhakar Dwivedi also reveals the said facts. The ideology of 'Abhinav Bharat', their modus operandi in causing the bomb blasts appears to be similar at the aforesaid religious places. The speeches in the meeting, established that the intention was to take revenge by means which were dangerous to the public at large. The said facts considered in the background of the criticism of the Constitution of India and intention to substitute another Government and naming the new Country as Hindu Rashtra by forming a Government in exile, shows that the entire object was to create panic and terror. The material on record prima facie shows that the case against the appellant was covered under the provisions of the UAPA Act.

31. In view of the evidence on record, it can safely be said that there is prima facie material against the present appellant that he was a member of the organized crime syndicate which was continuing their unlawful activity of exploding bombs in religious places, predominately in Muslim areas. In view of the material on record, in the form of confession recorded under Section 18 of the MCOC Act of the appellant corroborated by the statement of several witnesses recorded under Section 161 and 164 of the Cr.P.C. it can be said that the appellant had knowledge of the acts of the other accused and that he conspired with them to cause the offences with which he was charged.

32. Thus, from a perusal of the material on record as discussed aforesaid, it is clearly evident, that the appellant / accused was part of the criminal conspiracy to cause the alleged serious offences with which he has been charged along with other co-accused. Considering the aforesaid evidence, which we have dealt with in detail, we are of the opinion that prima-facie there is material to show the complicity of the appellant/accused in the criminal conspiracy with which he has been charged.

33. We have also perused the impugned order passed by the Special Judge, Mumbai, rejecting the Appellant's Application for bail and do not find any infirmity warranting any interference in the same. In the light of the material on record and the bar under Section 21(4) of the MCOC Act, we are firmly of the opinion, that this is not a fit case to grant bail. Accordingly, we reject the Appeal.

34. Before parting, we may observe that, the finding recorded by us as aforesaid, are prima facie observations and will not be construed as having recorded a finding of guilt as against the appellant/accused. The said observations being prima-facie are only for the purpose of deciding the Appeal which has been filed by the appellant/accused for grant of bail and hence the Trial Judge may not be influenced by the aforesaid observations.

Appeal dismissed.