Mr. Edapana Thodika vs. State Of Karnataka
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The appellants, accused Nos. 4, 5, 8, 9, 10, 16, 17, 24, 27 to 30, are challenging the dismissal of their bail applications by the XLIX Additional City Civil and Sessions Judge, Bengaluru. The case stems from a series of bomb blasts that occurred on July 25, 2008, in Bengaluru, resulting in one death, several injuries, and significant property damage. Nine cases were registered, and charge sheets were filed against 31 accused for offenses including those under the Indian Penal Code, the Explosive Substances Act, 1908, the Prevention of Damage to Public Property Act, 1984, and the Unlawful Activities (Prevention) Act, 1967 (UAP Act). The appellants have been in custody for approximately 16 years. Their bail applications were rejected by the trial court on grounds that earlier applications were rejected on merits, the present applications were not based on changed circumstances beyond long incarceration, and the offenses under Section 16 of the UAP Act and Section 302 of the IPC are punishable with death or life imprisonment, making the 50% sentence completion rule inapplicable.
Held
The High Court dismissed the appeals. The Court found that the appellants had suppressed previous rejections of their bail applications by the trial court, the High Court, and the Supreme Court in its appeal memo and applications before the trial court. The Court agreed with the trial court that subsequent bail applications could only be considered on changed circumstances. The sole changed circumstance urged by the appellants was their 16 years of incarceration. However, the Court held that the principle of releasing accused on bail after serving 50% of the prescribed sentence does not apply to offenses punishable with death or life imprisonment, such as those under Section 16 of the UAP Act and Section 302 of the IPC. Furthermore, the Court found that the delay in the conclusion of the trial was not attributable to the prosecution. Evidence presented showed that when the matter was set for defense arguments, the accused filed multiple applications, including applications to summon documents and recall witnesses. The Court noted that one such application to recall a witness, allowed on cost, had not even had the cost deposited. The Court concluded that there were reasonable grounds to believe the appellants were involved in anti-national activity and that the delay in trial did not warrant indulgence. The Court found the trial court's rejection of the applications to be judicious and the appeals to be vexatious.
Key Issues
1. Whether the appellants are entitled to bail solely on the ground of prolonged incarceration (approximately 16 years) without trial, considering the serious nature of the offenses under Section 16 of the UAP Act and Section 302 of the IPC, which are punishable with death or life imprisonment? 2. Whether the trial court was justified in rejecting the bail applications on the grounds that previous applications were rejected on merits and that the delay in trial, if any, is attributable to the actions of the accused rather than the prosecution? Contentions of the Appellants: The appellants argued that they are innocent and that some prosecution witnesses have turned hostile. They emphasized their 16 years of under-trial detention and cited several judgments, including Sheikh Javed Iqbal vs. State of Uttar Pradesh, Union of India vs. K.A. Najeeb, and Javed Gulam Nabi Shaikh vs. State of Maharashtra, to support their claim for bail based on prolonged custody and the possibility of timely trial conclusion. They also relied on Manish Sisiodia vs. Directorate of Enforcement, Mohd. Muslim alias Hussain vs. State (NCT of Delhi), Gursewak Singh vs. State of Punjab, and Sri. Mohan Nayak N vs. State of Karnataka. Contentions of the Respondent (State): The State contended that the earlier bail applications of the appellants were rejected on merits, and these rejections were confirmed by the High Court and the Supreme Court. They argued that the trial court was correct in holding that new applications could only be considered on changed circumstances. The State asserted that the substantial trial is nearly over, with prosecution arguments concluded, and that the appellants themselves are causing delays by filing applications to recall witnesses and summon documents when the matter was set for defense arguments. They also pointed out that the Supreme Court confirmed that the act of purchasing explosives used in the crime affects the nation's interest.
Sections Cited
Section 16, Section 302, Section 43D, Section 5, Section 91, Section 243, Section 311
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Cause title — parties, addresses and appearances
ORAL JUDGMENT
(PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL)
Challenging the dismissal of their applications for grant of bail, accused Nos.4, 5, 8, 9, 10, 16, 17, 24, 27 to 30 in S.C.No.1478/2010 to 1486/2010 on the file of XLIX Additional City Civil and Sessions Judge, [Special Court for trial of NIA Cases], Bengaluru, have preferred the above appeals.
The facts of the case are as follows: On 25.07.2008 in nine (09) places in Bengaluru, series of bomb blasts took place. In such blasts, one person was killed, several persons were injured and there was huge loss of NC: 2024:KHC:44759-DB AND CONNECTED MATTERS
properties. Regarding those incidents, nine (09) cases were registered in nine (09) police stations in Benglauru, nine (09) charge sheets were filed against accused Nos.1 to 31 for the following offences: (1) Sections 120B, 121, 121A, 302, 307, 201, 326, 435 of IPC. (2) Sections 3, 4, 5 & 6 of The Explosive Substances Act, 1908. (3) Sections 3, 10, 11, 13, 16, 17, 18, 19 & 20 of The Unlawful Activities (Prevention), Act, 1967 (for short, 'UAP Act'). (4) Sections 3 & 4 of Prevention of Damage to Public Property Act, 1984. 3. The appellants filed successive bail petitions in the above cases before the trial Court. The same were opposed by the prosecution. The trial Court on hearing the parties by the impugned common order, has rejected the applications on the following grounds: (i) That earlier bail applications of the appellants were rejected on merits and the present applications have to be considered only on changed circumstances. NC: 2024:KHC:44759-DB AND CONNECTED MATTERS
(ii) The only changed circumstance urged by the appellants is their long incarceration without trial. Substantial trial is already conducted and even the arguments were heard, at that stage the accused themselves have filed some applications. (iii) The offence under Section 16 of UAP Act and Section 302 of IPC are punishable with death or imprisonment for life. Therefore, the principle that if the accused have undergone more than 50% of the prescribed sentence they shall be released on bail does not apply.
Sri.S.Balan, learned counsel for the appellants vehemently contends that the appellants are innocent and some of the witnesses, who were set up against them, have turned hostile. He further submits that the appellants have served under trial detention for about 16 years. Therefore, bail has to be granted to them. In support of his submissions, he relied on the following judgments: NC: 2024:KHC:44759-DB AND CONNECTED MATTERS Gursewak Singh vs. State of Punjab in CRA-D No.454/2021 Disposed of on 09.11.2023 of High Court of Punjab & Harayana Crl.P.No.7963/2023 Disposed of on 07.12.2023. 5. Sri.Vijayakumar Majage, learned SPP-II opposes the appeals and submits that the earlier applications of the appellants were rejected on merits by the trial Court. Those judgments are confirmed by this Court and the apex Court. Therefore, the trial Court was justified in holding that there is no scope for consideration of new applications on merits. The substantial trial is already over and even the arguments of the prosecution were submitted. It is the appellants and other accused, who are procrastinating the matter. When the matter was set up for defence arguments, the accused went on filing the applications to recall the witnesses to summon the documents. Therefore, it is not open to them to claim that trial was delayed and for that reason they are entitled to bail. Moreover as the offence alleged are punishable with death or imprisonment for life, the question of appellants serving more than 50% of the prescribed sentence does not arise and such NC: 2024:KHC:44759-DB AND CONNECTED MATTERS
principle is not applicable. The trial Court has exercised the discretion on assigning sound reasons. The judgments relied on by the appellants are not applicable. Hence, the appeals are liable to be rejected.
Analysis
Though it is not specifically stated in the appeal memo or the applications before the trial Court, it is not disputed that the appellants/accused filed multiple bail applications before the trial Court unsuccessfully. The materials placed by the prosecution and the appellants themselves before this Court show that the earlier rejection orders passed by the trial Court were confirmed by this Court in the following cases: Sl. No. Case No. Accused No. Disposal date 1 Crl.A.No.1006/2014 A-24 13.02.2015 2 Crl.P.No.9925/2017 A-6, 8 & 29 23.04.2018 3 Crl.A.No.1246/2021 A-29 29.11.2021 4 Crl.A.No.1290/2021 A-24 15.02.2023
The judgment in Crl.A.No.1290/2021 shows that the accused No.31 challenged the dismissal of his application by the trial Court and this Court and that was confirmed by the Apex Court holding that the act of the accused in purchasing NC: 2024:KHC:44759-DB AND CONNECTED MATTERS
explosives which were used for commission of crime affects the interest of the nation at large and terrorize the public.
When the accused approached the Court for a discretionary relief like bail, they should approach the Courts with clean hands. All the aforesaid facts are suppressed by the appellants/accused in the appeal memo and the bail applications filed before the trial Court. As rightly pointed out by the trial Court since the earlier applications were rejected on merits, the appellants could file subsequent application to seek the bail only on the ground of changed circumstances. The only changed circumstance urged by Sri.Balan, learned counsel for the appellants is that the appellants/accused are in custody for about 16 years, the trial is not likely to be concluded in the near future, therefore, they are entitled to bail. As rightly pointed out by the trial Court, the offences alleged against the appellants under Section 16 of UAP Act and Section 302 of IPC are punishable with death or imprisonment for life. In such cases, the principle that if the accused have served more than 50% of prescribed period of sentence they shall be released on bail does not arise or cannot be invoked. Further, the delay in trial should be attributable to the prosecution. It is submitted NC: 2024:KHC:44759-DB AND CONNECTED MATTERS
that in S.C.No.1478/2010, which consists of maximum charge sheet witnesses, the number of charge sheet witnesses is 308, out of them 230 witnesses are already examined. It is also not disputed that the arguments of the prosecution were also concluded. When the matter was set down for defence arguments, the accused have filed the following applications on different dates as follows: Sl. No. Date Application 1
2024 Application under Section 91 read with Section 243 of Cr.P.C. to summon document from Somwarpet Police Station. 2 16.07.2024 Application under Section 311 of Cr.P.C. to recall PW-138 for cross- examination and DW-3 for production of GST bill. 3 30.08.2024 Application under Section 311 of Cr.P.C. to recall DW-3 for production of VAT certificate.
Learned SPP-II produced for perusal of this Court the order dated 05.08.2024 passed by the trial Court on the application to recall the witness Smt.Jiji, who is examined as PW-138, PW-117, PW-110, PW-111, PW-113, PW-115, PW-109, PW-113, PW-117 respectively in S.C.No.1478/2010 to S.C.No.1486/2010. The reading of the said order shows that the said witness was examined on 28.11.2014. Notably the reason assigned for not cross-examining the said witness or not filing NC: 2024:KHC:44759-DB AND CONNECTED MATTERS
the necessary application promptly is the oversight of the defence counsel to do the needful. The said order further shows the application was allowed on cost of Rs.10,000/-. It is submitted that even that cost is not deposited sofar. It is further submitted that now the case is listed on 11.11.2024 and prosecution is always ready to swiftly complete the trial. The above facts and circumstances clearly show that the delay, if any, is not account of any indolence on the part of the prosecution.
Though innumerable judgments are cited by the learned counsel for the appellants, the principle in all those cases is one and the same viz., the bar under Section 43D and 5 of UAP Act is not applicable to the constitutional Courts and ordinarily the Courts would be obligated to enlarge the accused on bail regardless of statutory restrictions, if there is absence of possibility of timely conclusion of trial and considering the period of custody. As already noted, in the present case, trial was already concluded, even the arguments of prosecution was over. At the instance of accused, one witness is recalled. It is for the accused to conduct the cross-examination promptly. Therefore, those judgments cannot be justifiably applied to the NC: 2024:KHC:44759-DB AND CONNECTED MATTERS
facts of the case or they do not advance the case of the appellants/accused.
It is also material to note that in the earlier course of litigations it is observed that there are reasonable grounds to believe that the appellants/accused are involved in anti-national activity. Therefore there are no grounds to show indulgence on the ground that there is delay in trial.
The trial Court on judicious application of the material on record and supplying the sound reasons has rejected the applications. The applications and appeals are apparently vexatious. Therefore, the following: ORDER The appeals are dismissed. (K.S.MUDAGAL) JUDGE (VIJAYKUMAR A. PATIL) JUDGE
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