(n) if the appellant adopts any dilatory tactics, it is open to the Special Court to remand the appellant to custody as laid down by the judgment of the Apex Court in State of Uttar Pradesh vs. Shambhu Nath Singh (JT 2001 (4) SC 319); Before parting with, we make it clear that the observations and findings recorded in this judgment are only for the limited purpose of considering the application for bail and the Special Court shall not be influenced by the same during the trial or while rendering its decision.                (S.V.N.,J.)  (A.D.J.C.,J.)                   02.09.2022.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

 

Reserved on  : 16.8.2022

 

Delivered  on : 02.9.2022

 

CORAM

 

THE HON’BLE MR.JUSTICE S.VAIDYANATHAN

AND

THE HON’BLE MR.JUSTICE A.D.JAGADISH CHANDIRA

 

Criminal Appeal No.652 of 2022

 

Reena Joyce Mary                                           Appellant

 

 

State rep. by

Deputy Superintendent of Police,

Q Branch CID, Dharmapuri,

(Uthangarai PS Crime Nos.1004/02

1005/02, 1006/02 and

Kallavi PS Crime No.434/02)                                 Respondent

 

Criminal Appeal filed under Section 34 of the Prevention of Terrorism Act, 2002 to set aside the order dated 31.10.2019 in Crl.M.P.No.313 of 2019 in Spl.C.C.No.5 of 2003 on the file of the Special Court under the Prevention of Terrorism Act (POTA), 2002 (Sessions Court for Exclusive Trial of Bomb Blast Cases), Poonamallee, Chennai, Poonamallee, Chennai and enlarge the appellant on bail.

 

For Appellant    :   Mr.R.Sankarasubbu

 

For Respondent         :   Mr.Babu Muthumeeran,

Additional Public Prosecutor

JUDGMENT

S.VAIDYANATHAN, J.

and

A.D.JAGADISH CHANDIRA,J.

 

The Criminal Appeal has been filed seeking to set aside the order dated 31.10.2019 in Crl.M.P.No.313 of 2019 in Spl.C.C.No.5 of 2003 on the file of the Special Court under the Prevention of Terrorism Act, Poonamallee, Chennai and enlarge the appellant on bail.

 

  1. The appellant is arrayed as A28 in Spl.C.C.No.5 of 2003. She has filed the present Criminal Appeal against denial of bail by the Special Court.

 

  1. Brief facts behind the filing of the present Criminal Appeal is are as under:-
  2. i) On receipt of some information on 23.11.2002, the Inspector of Police, heading a team of Naxalite Special Duty Wing, Dharmapuri District had conducted search at various places on different dates and after conducting enquiry, seizure of materials like explosive substances and exchange of fire between, a set of people were arrested identifying as Maoist and as a consequence, cases were registered in Crime Nos.1004/02,1005/02, 1006/02 on the file of Uthangarai Police Station and Crime No.434/02 on the file of Kallavi Police Station.
  3. ii) In all the above cases, the Deputy Superintendent of Police, C.I.D. Branch, Coimbatore, took up investigation and filed charge sheet under Sections 148,333,307,333read with 149 IPC and 120B read with 3(2)(b), 3(3), 3(5), 4(b) and 22(1) of the Prevention Of Terrorism Act,2002, and Section 25(1B)(a)of the Arms Act,1959 and ultimately, the case was taken on file in Spl.C.C.No.5 of 2003.

iii) The appellant, being one among the accused persons, having failed in the previous attempts to get bail from the Special Court, filed Criminal Appeal No.1909 of 2003 before this court and obtained bail by order dated 28.4.2005 and accordingly, she was released on bail on 5.5.2005.

  1. iv) Subsequently, the appellant had violated the bail conditions by her non appearance before the court after 16.11.2007. NBW came to be issued against her on 23.3.2009 and on vigorous search by various special teams, the appellant was arrested on 21.7.2016 by the Kancheepuram Q Branch Police in Crime No.1 of 2016 and she was produced before the Special Court on 30.8.2016 under P.T. Warrant and remanded to judicial custody. Bail Cancellation petition in Crl.M.P.No.3632 of 2016 in Criminal Appeal No.335 of 2004  filed by the prosecution before this court also came to be allowed on 23.1.2017.
  2. v) Thereafter, the appellant had filed petition seeking bail in Crl.M.P.No.313 of 2019 in Spl.C.C.No.5 of 2003, which was dismissed by the Special Court. Aggrieved against the same, the present Criminal Appeal has been filed by the appellant.

 

  1. Learned counsel Mr.R.Sankarasubbu appearing for the appellant would submit that the Special Court has erred in dismissing the bail petition mechanically by holding that the bail petition of a co-accused by name Chandra was dismissed and also without considering the fact that there is no iota of evidence to detain the appellant and without considering the relevant circumstances for grant of bail. He would further submit that the appellant is a woman social worker fighting for the cause of poor, downtrodden and neglected persons and she has been victimized.  He would also submit that the appellant had been in incarceration for more than six years viz., from 21.7.2016 and the trial of the case is not likely to be concluded in the near future, and the reason which is also not attributable to the appellant.  He would further submit that the appellant had not been produced before the Special Court on various occasion and her remand used to be extended mechanically, without her production before the court. He would also submit that as far as the appellant is concerned, the averment against her is that she was found in a Mango grove undergoing karate training and other than that, there is no averment against the appellant as if she had indulged into any terrorist activities.  Relying on the decision in Shaheen Welfare Association vs. Union of India and others [1996 (2) SCC  616], he would submit that taking into consideration the role and allegations attributed against the appellant in the the  case and also her long incarceration would she fall within the category of prisoners ‘c’ described in the said decision.  He would further submit that the appellant is aged about 45 years as as on date and that she is living in absolute penury and she was arrested while she was working in a quarry for her livelihood and she has reformed and renounced and given up her faith in her ideology of Maoism and she has intended to come within the main stream of the society and she is also prepared to file an Affidavit of undertaking renouncing her belief and faith in Maoism and owing faith and allegiance to the Constitution of India. She is prepared to abide by any stringent conditions that may be imposed by this court and ready to cooperate for speedy trial. He would  submit that a co-accused by name Sathya Mary @ Padma had been granted bail by this court by order dated 3.2.2022 in Crl.A.No.417 of 2021 and therefore, pray for setting aside the order of dismissal of bail.

 

  1. A detailed counter has been filed by the respondent and pointing out the averments contained therein, the learned Additional Public Prosecutor, Mr.Babu Muthumeeran would submit his arguments as under:-
  2. i) Initially, the appellant, along with 4 other accused, was granted bail by this court by order dated 28.4.2005 in Criminal Appeal No.335 of 2004 with a condition to appear before the Special Court daily at 10.30 am,and further by order dated 6.9.2006 in Crl.M.P.Nos.4170 to 4172 of 2006 the condition was relaxed requiring  her to appear only on the hearing dates, but, the appellant had failed to appear and remained absent from 16.11.2007 and further, she had continued to indulge into her organizational terrorist activities, which had resulted in filing of other criminal cases against her. The details of the cases against the Appellant which is tabulated hereunder:-
S.NO Case Police Station
1. Crime No.111 of 2008 Kodaikanal Police Station
2. Crime No.7 of 2014 Pothukal Police Station, Kerala
3. Crime No.51 of 2015 Vazhikadavu Police Station, Kerala
4. Crime No.1229 of 2015 Mannarkad Police Station, Kerala
5. Crime No.1 of 2016 Kancheepuram, ‘Q’ Branch CID.
  1. ii) The Special Court had issued NBW on 23.3.2009 and after a great struggle and search by special teams, she could be arrested on 21.7.2016 and produced before the Special Court on 30.8.2016 through PT warrant and remanded to judicial custody. This Court had also canceled the bail granted to her on 23.01.2017 in Crl.M.P.No.3632 of 2016 in Criminal Appeal No.335 of 2004.

iii) The non-production of the appellant before the Special Court on some occasion had been properly explained before the Special Court on each occasion and such non-production cannot be construed as a ground for grant of bail.

  1. iv) There is ample evidence available against the appellant. The appellant had absconded in contravention of the observation of the High Court while granting bail to the effect that “there is no reason to hold that these women accused will flee from justice.  Therefore, the women accused alone are ordered to be released on bail” and therefore, in the event of grant of bail now, there is every possibility that she could once again abscond thereby delaying trial.
  2. v) The abscondence of the appellant for about nine years had already caused sufficient delay in conducting trial and therefore, she is not entitled to claim the delay in conducting trial and her long incarceration as a ground for grant of bail, and that the accused in this case are filing petitions one after another so as to delay the trial.
  3. vi) The co-accused Sathya Mary @ Padma had been granted bail by this court by order dated 3.2.2022 in Crl.A.No.417 of 2021 only considering her health condition and medical history which, the appellant cannot apply to her case and crave sympathy and moreover, the co-accused Sathya Mary @ Padma had voluntarily surrendered before the Special Court whereas, the appellant was arrested after a long time with much difficulty.

vii) If the appellant is released on bail, there is every possibility that she would abscond and go underground and evade further process of law and try to tamper with the witnesses and hamper the trial proceedings and thereby, she is not entitled to grant of bail and the Criminal Appeal is liable to be dismissed.

 

  1. In reply, the the learned counsel for the appellant would submit that out of the other cases, in the case registered by Kodaikanal P.S, the appellant has been acquitted and excepting the case registered by Kanchipuram P.S in all other cases registered in Tamilnadu and Kerala, she had been granted bail.  He would reiterate that the appellant is a lady living in penury and due to her age and health related issues and long incarceration she is suffering and she has also decided to renounce her faith in her Maoist ideology. He would further submit that the appellant cannot be held responsible for the delay in trial and she cannot be blamed for the tactics adopted by other accused for delaying the trial. He would also submit that the appellant is in prison for the past six years after arrest and the possibility of the trial being completed early is also bleak and therefore, the period of long incarceration and the delay in trial may be taken into consideration for release of the appellant on bail. Further, he would submit that whatever may be the nature of offence, a prolonged trial with deprivation of personal liberty without the prospect of trial being concluded within a reasonable time justifies invocation of Article 21 of Constitution of India and the appellant is entitled for grant of bail. In support of the above submission he relied on the recent decision of the Apex Court reported in Satender Kumar Antil Vs. CBI & Another reported in (2022) SCC OnLine SC 825,

 

  1. Heard the learned counsel appearing for the parties and perused the materials available on record.

 

  1. It is the case of the prosecution that the appellant is a member of Maoist group and a potential threat to the society, who had, despite grant of bail, violated the bail conditions and absconded for about nine years and therefore, she does not deserve any sympathy, whereas, it is the case of the appellant that she is a woman fighting for the cause of poor,downtrodden and neglected people and she had been victimized and had been in long incarceration without any progress in the trial. Further it her case that she has renounced her faith in Maoist ideology and that the averments against her are not serious and that she falls within category “C” of prisoners as classified by the Apex Court in Shaheen Welfare Association vs. Union of India and others reported in (1996) 2 SCC 616 and subsequent to the arrest on 21.07.2016, the appellant is in confinement for about 6 years, without any progress in trial and she is entitled for grant of bail. It is the further contention of the appellant that she has now reformed and owes faith and allegiance in Constitution of India and she does not believe in Maoism and violence as an ideology and she is also ready to swear an affidavit owing faith and allegiance to the Constitution of India.

 

  1. In Shaheen Welfare Association case the Honble Apex Court has classified the prisoners facing terrorism charges and issued directions regarding grant of bail to them. It is useful to refer the relevant paragraph of the above judgment (cited supra),

“13. For the purpose of grant of bail to TADA detenus, we divide the undertrials into three (sic four) classes, namely, (a) hardcore under trials whose release would prejudice the prosecution case and whose liberty may prove to be a menace to society in general and to the complainant and prosecution witnesses in particular; (b) other under trials whose overt acts or involvement directly attract Sections 3 and/or 4 of the TADA Act; (c) under trials who are roped in, not because of any activity directly attracting Sections 3 and 4, but by virtue of Section 120-B or 147, IPC, and; (d) those under trials who were found possessing incriminating articles in notified areas and are booked under Section 5 of TADA.”

 

 

 

  1. Further in Spl.C.C.No.5 of 2003, there are 219 witnesses. The trial Court by an order dated 04.12.2015 in DIS.No.689 of 2015 had fixed the schedule to commence trial on 20.01.2016 and also drawn a schedule to complete the trial within 52 hearings starting from 20.01.2016 to 04.04.2016, however, the other accused in this case have been filing various petitions and delaying the trial. From the records, it is seen that the delay cannot attributed on the part of the appellant. The case against the appellant is that she was found engaged in Karate training and she has not involved in any violent activity and there is no recovery from her and thereby, her case falls within the category “C” as classified in the judgment of Shaheen Welfare Association (referred supra). Further, the Hon’ble Apex Court in Satender Kumar Antil Vs. CBI & Another reported in (2022) SCC OnLine SC 825, taking note of prolonged incarceration of prisoners due to delay in trial has held as under:-

40. Sub-section (1) mandates courts to continue the proceedings on a day-to-day basis till the completion of the evidence. Therefore, once a trial starts, it should reach the logical end. Various directions have been issued by this Court not to give unnecessary adjournments resulting in the witnesses being won over. However, the non-compliance of Section 309 continues with gay abandon. Perhaps courts alone cannot be faulted as there are multiple reasons that lead to such adjournments. Though the section makes adjournments and that too not for a longer time period as an exception, they become the norm. We are touching upon this provision only to show that any delay on the part of the court or the prosecution would certainly violate Article 21. This is more so when the accused person is under incarceration. This provision must be applied inuring to the benefit of the accused while considering the application for bail. Whatever may be the nature of the offence, a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be violative of Article 21. While the courts will have to endeavour to complete at least the recording of the evidence of the private witnesses, as indicated by this Court on quite a few occasions, they shall make sure that the accused does not suffer for the delay occasioned due to no fault of his own.

  1. Sub-section (2) has to be read along with sub-section (1). The proviso to sub-section (2) restricts the period of remand to a maximum of 15 days at a time. The second proviso prohibits an adjournment when the witnesses are in attendance except for special reasons, which are to be recorded. Certain reasons for seeking adjournment are held to be permissible. One must read this provision from the point of view of the dispensation of justice. After all, right to a fair and speedy trial is yet another facet of Article 21. Therefore, while it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. This we hold so notwithstanding the beneficial provision under Section 436A of the Code which stands on a different footing.”
  2. As stated above, taking into consideration the allegations against the appellant and the period of incarceration after re-arrest from 2016 and the delay in trial and also the undertaking given by the appellant to file her sworn affidavit to reaffirm her allegiance to the Constitution of India,and giving up her faith and belief in the ideology of Maoism we are of the opinion that the appeal may be allowed and the appellant may be granted bail subject to imposition of certain stringent conditions.
  3. In the result, the Criminal Appeal is allowed and the order dated 31.10.2019 passed by the Special Court under Prevention of Terrorism Act (POTA), 2002 (Sessions Court for Exclusive Trial of Bomb Blast Cases), Poonamallee, Chennai 600 056 in Crl.M.P.No.313 of 2019 in Spl.C.C.No.5 of 2003 is set aside.
  4. The appellant shall file a sworn affidavit affixing her signature and thumb impression before the trial Judge stating:

(i) that she owes faith and allegiance to the Constitution of India      and that she does not believe in Maoism;

(ii) that she does not believe in violence as an ideology; and

(iii) that she would do nothing to subvert the Constitution of               India.

On the appellant filing such an affidavit before the Special Court, the appellant shall be enlarged on bail on her satisfying the following conditions :

(a) on executing a bond for a sum of Rs.25,000/- (Rupees twenty five thousand only) with two sureties each for a like sum to the satisfaction of  the Special Court under the Prevention of Terrorism Act (POTA), 2002 (Sessions Court for Exclusive Trial of Bomb Blast Cases), Poonamallee, Chennai;

(b) one such surety shall be a Government Surety;

(c) the sureties shall affix their photographs and Left Thumb Impression in the surety bond and the learned Judge, Special Court may obtain a copy of their Aadhar Card or Bank Pass Book to ensure their identity;

(d) the appellant shall report before the Special Court on all hearing dates and before the Q Branch Police, Kamaraj Salai,   Chennai-600 004, on every Sunday at 10.30 a.m. until completion of trial in Spl.C.C.No.5 of 2003. (If the appellant has to appear for trial before any other Courts, she has to intimate the Special Court in advance);

(e) in case the appellant wants to leave the State of Tamil Nadu on account of any emergency, such as treatment, hospitalization, sudden death of her close relatives, etc., she shall intimate the jurisdictional Police about the details of place of visit, name of the contact person with mobile number, Aadhar card or any other photo identity of that person along with reasons therefor and the number of days of absence in the locality, before leaving Tamil Nadu;

(f) the appellant shall not commit any offences;

(g) the appellant shall not abscond during trial;

(h) the appellant shall not tamper with evidence or witness  during trial;

(i) the appellant shall furnish the Mobile Number, which shall not be changed till the issue comes to a logical end.  However, she is permitted to change the portability;

(j) the appellant should furnish her permanent address and shall inform the trial Court and the respondent about any change in her address;

(k) on breach of any of the aforesaid conditions, the learned Judge, Special Court is entitled to take appropriate action against the appellant in accordance with law as if the conditions have been imposed and the appellant released on bail by the learned Judge, Special Court himself as laid down by the Hon’ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560];

(l) if the appellant thereafter absconds, a fresh FIR can be registered under Section 229A IPC;

(m) the Special Court shall proceed further with the trial on a day to day basis in accordance with the guidelines given in Vinod Kumar vs. State of Punjab (AIR 2015 SC 1206).  The trial shall not be adjourned beyond seven working days at any point of time;

(n) if the appellant adopts any dilatory tactics, it is open to the Special Court to remand the appellant to custody as laid down by the judgment of the Apex Court in State of Uttar Pradesh vs. Shambhu Nath Singh (JT 2001 (4) SC 319);

 

  1. Before parting with, we make it clear that the observations and findings recorded in this judgment are only for the limited purpose of considering the application for bail and the Special Court shall not be influenced by the same during the trial or while rendering its decision.

 

 

(S.V.N.,J.)  (A.D.J.C.,J.)

02.09.2022.

 

Index: Yes/No.

Internet: Yes/No.

ssk/ham.

 

 

To

 

  1. The Judge,

Special Court under the

Prevention of Terrorism Act (POTA), 2002

(Sessions Court for Exclusive Trial

of Bomb Blast Cases),

Poonamallee, Chennai 600 056.

 

  1. The Deputy Superintendent of Police,

Q Branch CID, Dharmapuri,

 

  1. The Superintendent,

Special Prison for Women,

Vellore.

 

  1. The Public Prosecutor,

High Court, Madras.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

S.VAIDYANATHAN, J.

and

A.D.JAGADISH CHANDIRA, J.

ham/ssk

 

 

 

 

 

 

 

P.D. JUDGMENT IN

Criminal Appeal No.652 of 2022

 

 

 

 

 

 

 

Delivered on

02.9.2022.

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