ORDER
1. This appeal arises from an order of rejection of the first and second bail applications moved by the appellant before the Special Judge, designated Court for his release under the Prevention of Terrorism Act, 2002. The first bail application was rejected by designated Court on 11-11-2003. The second bail application was presented before the said Court on behalf of the appellant later on and same was also rejected. No objection was filed by the State in the second bail before the designated Court nor it opposed the bail.
2. Heard Sri V. B. Singh, learned senior counsel for the appellant assisted by Sri Kamal Krishna and learned G.A., assisted by A.G.A. Sri R. K. Singh.
3. The brief facts of the case are that one Udai Pratap Singh was arrested on 25th of January, 2003 by the local police of Pratapgarh. AK-56 rifle along with some ammunition from his possession was recovered. His confession was recorded by Deputy S.P., Sri N. P. Singh. From this confession he was found to have committed the offence under the provisions of the Prevention of Terrorism Act (hereinafter 'the Act' shall be referred to in the judgment as 'POTA'). The confession was inculpatory inasmuch as the said Udai Pratap Singh admitted the possession of the said unauthorised weapon and ammunition. However, in his statement he further stated that his son Raghuraj Pratap Singh alias Raja Bhaiya gave it to him. It is further available from the said confession that appellant was also present when this gun was handed over by Raja Bhaiya to his father Udai Pratap Singh. According to this statement the appellant was having a similar gun too when he visited the Raja. On the basis of the said confession the appellant was also detained under the provisions of the said Act, POTA. Long before the registration of the case the appellant was arrested by the local police on 23-11-2002 under the provision of the U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986. He was in Jail at the relevant time in that case.
4. We have gone through the said statement very carefully. Before appreciating this statement, we would like to point out that accused-Udai Pratap Singh is a Cambridge pass out from Doon College. His wisdom and intelligence is not to be doubted. Learned counsel for the appellant has challenged the said statement as wholly inadmissible in law. His contention is that Section 32(1), (4) and (5) have not at all been complied with in the present case. It has rather been deliberately flouted. The second submission is that the necessary notification, declaring the area of arrest and recovery 'a notified area,' was not in existence on the date when the case was registered under the said Act 'POTA' against the accused persons including the appellant. Before dealing with Section 32(1), (4) and (5) we would like to deal with publication of the notification to be made under Section 4(a). In this context it would be necessary to delve into the relevant provisions of Section 4(a), Caption of Section 4 talks about possession of certain unauthorised arms and ammunition etc. It lays down that where any person is in unauthorised possession of any arms or ammunition specified in columns (2) and (3) of Category I or Category III (a), Schedule I to the Arms Rules, 1962, in a notified area, he shall be guilty of Terrorist Act. Section 4(b) is not relevant for our purposes in the facts of this case.
5. There is no recovery from the possession of present appellant. A charge-sheet has already been submitted before the designated Court. The history of criminal cases against the appellant is no doubt adequate. The appellant has a good criminal history as is clear from the order of the designated Court. Regarding notification of Pratapgarh region as 'a notified area' reliance has been placed on the enquiry report submitted by the Chief Secretary, Sri V.K. Deewan which is Annexure 5 to the affidavit filed in support of this appeal. It is very categorically stated in para (b) of the said report that copy of this notification was sent to each district by Home Department by 27-1-2003 to 28-1-2003. A report was sought by Home Department from all the District Magistrates and the S.S.Ps. of every district in the course of enquiry in this regard. The copy of the said notification was received in district Pratapgarh by its District Magistrate, as per his report submitted to the one-man enquiry Commission, on 31-1-2003. With regard to the publication of notification it is stated in this report that it was sent to the Government Press, Lucknow for publication in the Official Gazette on 27-1-2003. To prove the said fact a copy of the dispatch register maintained in the Department of Home was taken into consideration by him, This copy of the intended notification was received at the Government Press on 28-1-2003 which is evident from the entry No. 938 made in the register (flag register) maintained at Government Press, Lucknow. From para (d) it becomes clear that this notification has seen consequently the light of day on 29-1-2003. The question is that as to how the case then was registered under the provisions of said Act 'POTA' as declared by the State Government, on 25-1-2003 even against the appellant and others. Appellant was already in custody on 23-11-2002. There is no other evidence except confessional statement of Udai Pratap Singh against the appellant. No date of the visit of the appellant with Raja Bhaiya was disclosed by Raja Udai Pratap Singh to Dy. S.P. We have, therefore, proceeded on the hypothesis that there is no incriminatory evidence against the appellant. According to the rejection orders there are some good number of cases registered against the appellant under various provisions of the Indian Penal Code including Sections 302 and 395 etc. and Gangster Act. It was taken into consideration by the learned designated Court, apart from the period of 12 months not having expired as provided by proviso to Sub-section (7) of Section 49 which lays down according to the designated Court Judge a total embargo for any consideration of bail for a period of twelve months.
6. The Apex Court has clarified the situation in its judgment reported in AIR 2004 SC 456, People's Union for Civil Liberties v. Union of India. The Apex Court in its paragraphs 64, 65 and 67 has clearly stated that embargo has only a limited purpose. Once the investigation is over and the charge-sheet has been submitted the embargo would not be applicable in the proceeding and the said embargo would not be applicable to the accused who is facing trial thereon. In paragraph 68 the Apex Court reconciled the anomaly by concluding that word 'not' would make the things clear between the word 'shall' and 'apply'. It appears that bar created by proviso to Sub-section (7) of Section 49 has by oversight missed out. This provision has completely prohibited application of Section 438, Cr. P.C. i.e. provision pertaining to anticipatory bail. It deals with grant of bail on an apprehension of arrest. Both Sub-sections (6) and (7) use a negative language to the grant of bail to a person accused of an offence punishable under this Act if he is in custody unless the conditions specified therein are satisfied. These conditions are : (a) providing an opportunity of hearing to Public Prosecutor (Sub-section (6)). If the Public Prosecutor opposes such prayer no bail until the Court has recorded its satisfaction that such person is not guilty of such offence as brought forth by Public Prosecutor (Sub-section (7)).
7. Section 437, Cr. P.C. lays down when bail is to be granted. Primarily 'bail' to an arrested accused is treated as a rule subject to exceptions provided in Clauses (i) and (ii) to Section 437(1). Some other factors are enumerated in Sub-sections (2) to (7) as well. Section 439 deals with special powers of High Court or Court of Session. An element of discretion was added in addition to the powers enumerated in Section 436 and Section 437 in this section.
8. Sub-section (8) of Section 49 spells out clearly that the restrictions imposed in Sub-sections (6) and (7) are to be in addition to restrictions on the powers to grant bail in the Code of Criminal Procedure. It clearly, thus, deals with only restrictions and not the discretion to grant bail.
9. On a get together of the provisions of bail contained in Cr. P.C. it is clear that they are enabling provisions, discretion is unfettered but for the restrictions specified and elaborated therein. Whereas bail provision contained in Section 49 of POTA are disabling in nature: The language is, no bail has to be granted unless Public Prosecutor is heard and if he opposes it then until the Court is satisfied that 'there are grounds for believing that he is not guilty of committing such offence.'
10. The embargo created by the proviso to Sub-section (7) of Section 49 ought to have been looked into in this context. Here the discretion of the Court is curtailed and confined to the condition detailed in these two sub-sections. Many other considerations like age, infirmity, sickness etc. etc. did not find any place for consideration here. Section 49 has to be read in league with Section 3 of the Act.
11. Once it is done the embargo caused by the proviso is wholesomely reconciled in our view. This is in reconciliation of what the Apex Court has laid in its decision in AIR 2004 SC 456 (supra).
12. The embargo is having the qualification of preventive detention hence where a person arrested for terrorist activities that are dangerous to the stability of the country and was intended to disturb the public tranquillity in certain area or areas with separatist intents or causes mass destruction of human life and property to further such end bail is not to be considered for a period of 12 months. There are following categories of cases defined by this Act, (a) terrorist activities, (b) possession of unauthorised arms or ammunition in any notified area, and (c) possession of bombs, dynamite or hazardous explosive substances or other lethal weapons capable of mass destruction or biological or chemical substances of warfare in any area, whether notified or not or any attempt to harbour, foster or assist and co-operate in such activities, the last, it is called disruptive activities. Law requires in connection with the category of offence as mentioned in Section 4(a), a declaration of the said area to be a 'notified area' before the provisions of the said Act will be applicable. Under Section 4(a) it has to be so first. This means provision Section 4{a) will be applicable against any person in a notified area alone. In the present case we come to the conclusion from the report of Chief Secretary Sri V. K. Deewan that there was in fact no notification in existence on 25-1-2003 when the case against the appellant and others was registered under the said Act, POTA. The embargo was meant to checkmate such people who arc indulging into possession of arms or ammunition prohibited from such possession by Arms Act or Rules to help those v/ho are indulging into act of terrorism in any notified area. It would not be an offence under POTA if it is recovered in any unnotified area. Proviso to Sub-section (7) of Section 49, therefore, could be read in the light of basically the acts of terrorism as defined in Sub-section (1) of Section 3. In the cases of offences Under Section 4(b) this obligation 'of notified area' is not mandatory.
13. 'Terrorist Act' is defined by Clause (g) of Section 2. In effect the 'terrorist act' is defined in Section 3(a) and (b) and Sub-sections' (3) to (7). Sub-section (1)(b) connects the possession of an unlicensed fire-arm or ammunition with the offence of this category. If any, act of mass destruction and act of causing death or grievous hurt is committed with the recovered weapon in connection with acts of terrorism POTA provisions would ipso facto become applicable otherwise it would be an offence under the Arms Act. Acts of terrorism is the principal offence. For our convenience we call them as offence of the first category. Punishment for the offences of first category is life imprisonment and for the offences under Sub-sections (3) to (7) sentence is variable and can extend to life imprisonment.
14. Clause (b) of Sub-section (2) of Section 49 lays down 180 days time-frame in the maximum for the investigation to conclude and for submission of the charge-sheet. Ordinarily this period is 90 days. The period in the Cr. P.C. is 60 and 90 days. Offences under present Act are heinous and primarily against the State. They are intended against the sovereignty of the nation. The investigation in these cases may take time beyond 90 days. The Public Prosecutor has to regularly monitor progress of the investigation and has to provide specific reasons for the detention of the accused beyond 90 days. The investigation of the case is to be concluded within 90 days initially but can otherwise be extended by the Court after obtaining necessary information as indicated in the proviso. This embargo in proviso of Sub-section (7) of Section 49 is relevant in the context for the offences of first category whereby it by implication lays down the law for detention of such an accused for minimum 12 months before bail could be considered and granted. Once that being clear from evidence collected the embargo on granting bail to an accused of this category may be one year. The embargo would not stand as soon as charge-sheet (Chalan) has been submitted in Court. This embargo would come to an end forthwith. There is no provision in the said enactment to extend the period for investigation beyond 180 days. The embargo has a limited purpose i.e. preventing release of those against whom the charges are serious in nature, of indulgence in terrorist acts, such as activities of mass destruction of public or private property, causing murders, or serious injuries to people of the country. These are acts of implicitly waging war against any sovereign State, defined in Section 2(g) and Section 3(1)(a) and (b) of the said Act. Sub-section (8) furnishes a clear clue to the said intention of the Legislature. These restrictions provided by Sub-sections (6) and (7) are in addition to restrictions under the Code or any other law for the time being in force on grant of bail. Therefore, the restriction, created by proviso, we presume, has been preventive in character in the offences of this category but it will come to an end if the investigation is completed within 90 days or 180 days in the maximum and charge-sheet reaches the Court. Apex Court has interpreted the provision in this backdrop. Sub-section (9) of the said section also adds some clarity to the situation. It shows that provisions contained in Sub-sections (6), (7) and (8) apart no bail shall be granted to the accused punishable under this Act if he is not an Indian citizen and enters into the country unauthorisedly and illegally. Only in very exceptional circumstances and for reasons to be recorded in writing bail can be granted to such an offender. If this section is read in conjunction with Sub-sections (6) to (8) this intention of the Legislature in enacting the proviso to Sub-section (7) could be uncovered easily.
15. Sub-section (7) creates another disability in the grant of bail to an accused charged under this Act in as much as it makes it obligatory upon the special Court to record its satisfaction that there are grounds for believing that the accused is not guilty of committing the offence or offences he is charged with. This satisfaction of 'not guilty of the commission of such offence' is the precondition for grant of bail if it is opposed by the Public Prosecutor. If it is not opposed no such satisfaction to required to be recorded.
16. We have to analyse the use of the word 'Code' in Sub-section (8) in the light of the scheme of the enactment regarding application of the provisions of Cr. P.C. Sub-section (8) speaks of the restrictions discussed above to be in addition to the restrictions imposed by the Code. Beyond this it did not allow anything. It did not permit application of Sections 436 to 439 of Cr. P.C. herein. Section 437 of the Cr. P.C. prescribes certain restrictions.
17. As we have already discussed provisions of Sub-section (6) is to apply only after 12 months. It may if a very liberal meaning to Sub-section (2) is attached, bail be considered only after submission of charge-sheet for which maximum time of 180 days has been prescribed if we may not treat it as a total embargo. Twelve months' embargo indicates its preventive intention.
18. The Act has already provided for applicability of some provisions of the Cr. P.C. wherever it found those provisions in harmony with its own scheme. They are mainly procedural in nature. These provisions pertain especially to summary and warrant trials. In the case of summary trials it has excluded the application of Sections 260(2), Cr. P.C. and 262, Provisions 263 to 265 have been specifically applied. Wherever it excluded the application of such provisions of the Code the language is specified i.e. notwithstanding anything contained in the Code. The language used in Sub-sections (1) and (6) of Section 49 of this Act is same. It clearly pronounces its intention of non-application of the enabling provisions of bail contained in the Cr. P.C. Thus in our opinion, the proviso to Sub-section (7) needs no interjection of the word 'not' between 'shall' and 'apply'. However, we are fully conscious of our limitation that the Apex Court judgment (supra) discussed by us is binding on us.
19. No such proviso was there in Section 20 of TADA.
20. In the caption 'modified application of certain provision of the Code' word 'modified' conveys to the limit of the application of the Code. As per Sub-section (1) only definition of cognizable offence and cognizable case has been given application as defined in Clause (c) of Section 2 of the Code of Criminal Procedure for the purposes of the interpretation. Section 167, Cr. P.C. has been given application to a limited extent. The extent of the limitation was provided in Sub-section 2(a) and (b). We have dealt with the said limitation earlier. Similarly Section 268 has also been given application too in the cases under this enactment with the modifications with (sic) by Clauses (a) and (b) to this Sub-section (3) of this Act.
21. Section 268 is quoted as under :--Prisoner to be brought to Court in custody.-- Subject to the provision of Section 269, the officer-in-charge of the prison shall, upon delivery of an order made under Sub-section (1) of Section 267 and duly countersigned, where necessary under Sub-section (2).
Thereof, cause the person named in the order to be taken to the Court in which his attendance is required, so as to be present there at the time mentioned in the order, and shall cause him to be kept in custody in or near the Court until the Court authorises him to be taken back to the prison in which he was confined or detained.
22. Thus by implication it allows application of Section 267 and Section 269 of the Code also. It has also allowed application of Sections 366, 367 and 371 of Cr. P.C. in relation to a case involving an offence triable by special Court constituted under this Act.
23. The language of Sub-section (6) starts with '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 Public Prosecutor has been heard. 'Plainly speaking it is a disability attached under this Act. No such disability is in Cr. P.C. There to hear the State is the discretion of the Court apart from the restriction caused by Sub-section (7).
24. As earlier discussed, there is nothing against the appellant except the confessional statement recorded by the Deputy Superintendent of Police which is in total disregard of the provisions of Section 32(1), (4) and (5). The confessional statement does not say that appellant had provided the weapon possessed by accused-Udai Pratap Singh at the time of its recovery. It only stated that a similar weapon was possessed by the appellant when he visited him along with Raghuraj Pratap Singh who gave the said weapon to him 3 or 4 years ago. This weapon, as per statement of Udai Pratap Singh was in open display and was used by him in elimination of any one who came in his way or opposed him. Thus so far as the appellant is concerned there is no evidence to show that the said weapon came from the appellant. No recovery of any weapon from him was ever made or at least alleged.
25. Now dealing with Section 32 we find that there is force in the submission. Learned counsel for the appellant submitted that the confession or statement of guilt under the said Act has to be recorded by a Police Officer not lower in rank than a Superintendent of Police. Sub-section (2) explains the precautions such police officer has to adhere to inasmuch as before recording such confession that person has to be explained in writing that he is not bound to make any confession and that if he does so it may be used against him. This safeguard is akin to the safeguards provided in Section 164, Cr. P.C. and is a part of principle of natural justice. The next is Sub-section (3) which provides that confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it. Lastly, the safeguard provided by Sub-sections (4) and (5) are in addition to those normal safeguards. They are more important in nature than the first two safeguards: In order to keep away any threat or inducement or an element of ingeniousness in so doing, this section recognizes modes of recording of confession, i.e. written or recorded on mechanical or electronic device. Provision lays down that such person be produced before the C.M.M./ C.J.M. within 48 hours along with the original statement recorded by a Superintendent of Police or any Police Officer superior in rank to him. Sub-section (5) of the said section clarifies the real intent of the Legislature in this regard in the enactment of Sub-section (4). It provides procedure for recording statement of an accused produced before under the said office before the Magistrate. It speaks that such statement be recorded by the Magistrate, if the person is ready to make it, after he is so produced by the police officer and shall obtain his signature or thumb impression on such recorded statement of the accused. If there is any complaint of inducement or torture, such person shall be directed to be produced for his medical examination before a Medical Officer not below the rank of an Assistant Civil Surgeon. Thereafter, alone he shall be remanded to judicial custody. It is from a proper conjoint reading of two sub-sections the said inference or safeguards are clearly discernible. Though the power is granted to the Police Officer but not without legitimate checks. It is also safeguarded that written statement recorded by authorised Police Officer not lower than a S.P. is to be produced before C.J.M./C.M.M. at the time of his production. He will make an enquiry from the accused in the line of Sub-sections (2), (3) and (4) to ascertain that it was voluntary and if the person is still willing he will record the statement as provided in this section and to make it substantive signature or thumb impression is to be obtained on such confession recorded himself by the said Magistrate. If any complaint of coercion, threat or inducement is received by the Court from the produced person he has to send the man for his medical. If the medical reveals injuries on his person it will be considered as an important disability in determination of voluntary character of the confessional statement. The person so brought or produced shall be remanded to judicial custody thereafter after recording of the complaint of the accused. In the present case Sub-sections (2) to (5) of Section 32 of the impugned Act have not been complied with as earlier discussed. The confession was recorded by a Deputy Superintendent of Police. It was recorded during the investigation stage. There is no compliance, therefore, of Section 32 in the present case. The accused was not produced before the C.J.M./C.M.M. by the arresting officer within the time prescribed that is 48 hours. Deputy Superintendent was not competent as per this section to record this statement. Section 32 of this impugned Act enjoins this duty upon a police officer not lower in rank than a Superintendent of Police. As a matter of fact the entire exercise was performed post-haste. It exhibits total lack of any knowledge of the provisions of this Act to concerned police officer who pursued this exercise. It had exposed a typical nexus between politicians and a dedicated section of policemen for some personal gains. He was never produced before a designated Magistrate nor his confessional statement in original was given or produced before the said Court. No compliance of Sub-sections (4) and (5) of Section 32 was hence available in the case. No statement of accused-Udai Pratap Singh, therefore, was recorded as required under the said provision. He was not afforded an opportunity to resile from such statement and make any complaint against the conduct of the said police officer to the concerned Magistrate. The intention, therefore, apparently of the Government was to keep the appellant confined in jail in utter disregard of the said law. The conduct of the Government, therefore, is highly condemnable. Every citizen accused of a criminal charge has been guaranteed certain rights not only by this special law but also by the Constitution of the country. They are deep rooted now. These principles and laws have utterly been disregarded. In the set of facts, emerged out from the above discussion, the offence committed by Udai Pratap Singh was simply prosecutable under the relevant provisions of the Arms Act and not under the impugned Act POTA. No prosecution from the arrest and recovery of the AK-56 rifle from Udai Pratap Singh on 25-1-2003 could be used to charge this appellant under POTA. The action was drawn by the State as an afterthought. The necessary notification had seen the light of day on 29-1-2003. In the present case it was made use of retrospectively by the State's erstwhile Government. It ought not to have been so done. The provisions of POTA have been arbitrarily used. It is a case of political abuse of the enactment for some undisclosed gains. In these facts and circumstances, we find that the prosecution under the said Act was wholly unauthorised and without any sanction of law. An attempt to hoodwink and defile the process of law is thus clearly discernible on the part of State. The present Government having realised its difficulties in the prosecution of the case has already applied for its withdrawal under Section 321 of the Code of Criminal Procedure. This application is pending before the designated Court still. The State has decided not to oppose in the present appeal as well, it was so announced by learned Government Advocate.
26. We would have closed the matter here but we are to sound a note of caution for designated Judge as well. The Apex Court judgment (supra) was filed in his Court in the second bail application. This judgment ought to have been given due consideration by the Special Judge, designated Court but he instead of applying himself to the law pronounced by the Apex Court has shown scant regard and attached undue weight to the criminal history. He ought to have considered the report of the Chief Secretary V. K. Diwan on issuance of notification on 23-1-2003 and not relied on his previous observations made by him in the orders passed on different dates in the absence of the said report probably as the situation earlier was. The report establishes beyond doubt that this notification was published on 29-1-2003 and not on 23-1-2003 as per the stand taken in Court by Mayawati Government. Had he done so it would have changed the complexion of the order completely. Offence under the said Act is not disclosed at all for non-compliance of mandatory provisions like Section 4 and Section 32 of the said Act POTA. It shows that he lacked the desire to do justice not only to a citizen but also to the pronouncement of the Supreme Court. He is required to be more careful in the discharge of this obligation in future. We cannot stop here. We direct the Government of U.P. to conduct an in-depth enquiry in the entire matter so as to fix the responsibility of the officers, police and civil, who involved themselves in the execution of this oblique design within three months from" the date a copy of this order is received by it. It would also work out the involvement of any member of the then Government including the Chief Minister. There are direct charges levelled against the then Chief Minister in the grounds of appeal and affidavit. The report of the inquiry be submitted to this Court and the same shall be produced by the office immediately on its receipt for further directions before us.
27. In view of the above discussion we find that there is nothing on record on the basis of which it can be concluded that the accused is guilty of the commission of any terrorist act. The appellant has made out a case for bail. In these circumstances, let the appellant, Akshay Pratap Singh alias Gopalji, be enlarged on bail in Case Crime No. 10 of 2003, under Sections 3/4 of POTA, Police Station Kunda, District Pratapgarh, U.P. on his furnishing a personal bond for Rs. 1,00,000/- with two sureties each in the like amount to the satisfaction of the Special Judge, Designated Court, Kanpur. He would also not interfere in any manner with the trial though the Government has already moved an application under Section 321, Cr. P.C. for its withdrawal. This appeal is accordingly allowed.