Appeal filed under Sec.34 of POTA Act against the Order in Cr.M.P.No.156 of 2011 in Spl.C.C.No.5 of 2003 dated 12.7.2011 on the file of Sessions Court of Trial of Bomb Blast and POTA Cases, Chennai at Poonnamallee.

JUDGMENT

G.M. AKBAR ALI,J.

1. The petitioner stands charge sheeted for the offence under Sec.3(5) of POTA, 120B IPC r/w 3(2)(b) of POTA and Sec.207, 149, 148, 333, 353 and 387 IPC.

2. According to the respondent, the petitioner is an active member of the Radical Student Union, one of the front organisations of Maoist. All these radical groups had decided to organise an Arms Training Programme in a village near Dharmapuri on 23.11.2002. On receiving such information, the Inspector of Police, NSD Wing, Dharmapuri interrogated one Murugesan and arrested the said Murugesan and another by name Morten and a case has been registered by Uthangarai Police Station in Cr.No.1004 of 2002.

3. Various persons were arrested and cases were also registered in Cr.No.1005 of 2002 and 1006 of 2002. The petitioner is also an accused in all the above cases, but he was absconding. The petitioner was arrested only on 10.7.2007. The co-accused was enlarged on bail only after a period of five years.

4. The petitioner initially filed a bail application but the same was dismissed on 3.11.2009 by the trial court. He moved another bail application before the trial court in Crl.M.P.No.156 of 2011 in Spl.C.C.No.5 of 2003. The trial court, after considering various aspects has observed as follows and dismissed the petition.

9. On perusal of records, charges were already framed and trial could not be proceeded with due to pendency of NBW against A17 and A22. Bail petition filed by same accused in Crl.M.P.No.244/2009 was already dismissed by this Court on 3.11.2009. The petitioner filed Crl.Appeal No.757/2009 and the same was dismissed on 17.12.2009. The other 27 accused moved before the Hon'ble High Court by filing Crl.Appeal No.346/2007 and WP No.13919 and 13920/2005 and by an order dated 10.12.2008 a quantum of fee was fixed to their advocates. This accused was involved in 5 other cases. To what extent confession of A3 can be used against the petitioner is to be considered by this Court only at the time of trial. Sec.161 statement of Chinnaiyan and Thirunagaram shows the involvement of the petitioner. Therefore, the submissions made by the petitioner's counsel that there is no material to connect the accused with the case except the confession of the co-accused is not correct. Considering the gravity of the offence and the facts and circumstances of this case, I am not inclined to release the petitioner on bail and this point is answered against the petitioner.

Challenging the said order the present appeal has been filed.

5. Mr.R. Sankara Subbu, the learned counsel for the appellant submitted that the trial court was wrong in dismissing the petition when the petitioner has been in jail without trial for the last four years. The learned counsel also submitted that incarceration without trial offends Article 21 of the Constitution of India. The trial court has also not considered the fact that there is no evidence against the petitioner for any conviction. The learned counsel pointed out that though the final report has been filed in the year 2003 and charges were framed in the year 2004, trial is yet to be commenced and pendency of NBW against two other accused is not an excuse to protract the trial. The learned counsel further pointed out that the only evidence against the petitioner is the confession of the co-accused.

6. The learned counsel for the appellant further submitted that the confession of the co-accused in the absence of any other material evidence is not admissible as against the appellant. The learned counsel further submitted that there is a distinction between Section 15 of TADA and Section 32 of POTA. The learned counsel submitted that the similar provision like the proviso to Section 15 of TADA is absent in Section 32 of POTA. Though as per the proviso to Section 15 of TADA, the confession statement of a co-accused is admissible in evidence as against the other accused, the same cannot be said so in a case arising under POTA. In view of the conspicuous absence of a similar provision in Section 32 of POTA, it cannot be heard to be contended that the confession of the co-accused is admissible in evidence against the appellant. In support of the said contention, the learned counsel placed reliance on a decision of the Apex Court reported in 2000(5) SCC (Crl) 1715 (State (NCT of Delhi) vs Navjot Sandhu alias Afsan Guru), wherein the Apex Court held as follows:

Use of confession under POTA against a co-accused

49. Now, let us examine the question whether Section 32(1) of POTA takes within its sweep the confession of a co-accused. Section 32(1) of POTA which makes the confession made to a high-ranking police officer admissible in the trial does not say anything explicitly about the use of confession made by a co-accused. The words in the concluding portion of Section 32(1) are:

shall be admissible in the trial of such person for an offence under this Act or the rules made thereunder.

It is, however, the contention of the learned Senior Counsel Shri Gopal Subramanium that Section 32(1) can be so construed as to include the admissibility of confessions of the co-accused as well. The omission of the words in POTA or co-accused, abettor or conspirator following the expression in the trial of such person which are the words contained in Section 15(1) of TADA does not make material difference, according to him. It is his submission that the words co-accused , etc. were included by the 1993 Amendment of TADA by way of abundant caution and not because the unamended section of TADA did not cover the confession of the co-accused. According to the learned Senior Counsel, the phrase shall be admissible in the trial of such person does not restrict the admissibility only against the maker of the confession. It extends to all those who are being tried jointly along with the maker of the confession provided they are also affected by the confession. The learned Senior Counsel highlights the crucial words in the trial of such person and argues that the confession would not merely be admissible against the maker but would be admissible in the trial of the maker which may be a trial jointly with the other accused persons. Our attention has been drawn to the provisions of CrPC and POTA providing for a joint trial in which the accused could be tried not only for the offences under POTA but also for the offences under IPC. We find no difficulty in accepting the proposition that there could be a joint trial and the expression the trial of such person may encompass a trial in which the accused who made the confession is tried jointly with the other accused. From that, does it follow that the confession made by one accused is equally admissible against others, in the absence of specific words? The answer, in our view, should be in the negative. On a plain reading of Section 32(1), the confession made by an accused before a police officer shall be admissible against the maker of the confession in the course of his trial. It may be a joint trial along with some other accused; but, we cannot stretch the language of the section so as to bring the confession of the co-accused within the fold of admissibility. Such stretching of the language of law is not at all warranted especially in the case of a law which visits a person with serious penal consequences [vide the observations of Ahmadi, J. (as he then was) in Niranjan Singh v. Jitendra9, SCC at p. 86, which were cited with approval in Kartar Singh case27]. We would expect a more explicit and transparent wording to be employed in the section to rope in the confession of the co-accused within the net of admissibility on a par with the confession of the maker. An evidentiary rule of such importance and grave consequence to the accused could not have been conveyed in a deficient language. It seems to us that a conscious departure was made by the framers of POTA on a consideration of the pros and cons, by dropping the words co-accused , etc. These specific words consciously added to Section 15(1) by the 1993 Amendment of TADA so as to cover the confessions of the co-accused would not have escaped the notice of Parliament when POTA was enacted. Apparently, Parliament in its wisdom would have thought that the law relating to confession of the co-accused under the ordinary law of evidence, should be allowed to have its sway, taking a cue from the observations in Kartar Singh case27 at para 255. The confession recorded by the police officer was, therefore, allowed to be used against the maker of the confession without going further and transposing the legal position that was obtained under TADA. We cannot countenance the contention that the words co-accused , etc. were added in Section 15(1) of TADA, ex majore cautela.

50. We are, therefore, of the view that having regard to all these weighty considerations, the confession of a co-accused ought not to be brought within the sweep of Section 32(1). As a corollary, it follows that the confessions of the first and second accused in this case recorded by the police officer under Section 32(1), are of no avail against the co-accused or against each other. We also agree with the High Court that such confessions cannot be taken into consideration by the Court under Section 30 of the Evidence Act. The reason is that the confession made to a police officer or the confession made while a person is in police custody, cannot be proved against such person, not to speak of the co-accused, in view of the mandate of Sections 25 and 26 of the Evidence Act. If there is a confession which qualifies for proof in accordance with the provisions of the Evidence Act, then of course, the said confession could be considered against the co-accused facing trial under POTA. But, that is not the case here.

51. For these reasons, the contention of the learned Senior Counsel for the State that even if the confession of the co-accused is not covered by Section 32(1), it can still be taken into account by the Court under Section 30 of the Evidence Act for the limited purpose of corroborating or lending assurance to the other evidence on record, cannot be accepted.

52. Learned Senior Counsel appearing for the State submits that there is no conflict between Section 32 of POTA and Section 30 of the Evidence Act and therefore the confession recorded under Section 32(1) of POTA can be taken into consideration against the co-accused, at least to corroborate the other evidence on record or to lend assurance thereto. There is no difficulty in accepting the contention that Section 30 of the Evidence Act can also play its part in a case of trial under POTA, especially when the other offences under IPC are also the subject-matter of trial. But a confession to the police officer by a person in police custody is not within the realm of Section 30 of the Evidence Act and therefore such a confession cannot be used against the co-accused even under Section 30 of the Evidence Act.

7. The learned counsel further submitted that the similarly placed other co-accused have been granted bail and, therefore, the appellant is also entitled to be granted bail. The learned counsel further submitted that except A-22, all the other accused are regularly attending the Court.

8. The learned counsel relied on a decision reported in 1996 SCC Crl 366 (Shaheen Welfare Association vs Union of India and Others) and an unreported judgment in dated 20.42005 in Crl.Appeal Nos.1909 of 2003, 335 of 2004 batch (Reeta Mary's case).

9. On the contrary, Mr.Venkatasubramanian, the learned Special Public Prosecutor for POTA cases submitted that there are totally 29 accused and even after filing of the charge sheet NBW is pending against two co-accused. The learned Special Public Prosecutor also submitted that the petitioner has no proper roots in the society and if he is released on bail, he will abscond. The learned Special Public Prosecutor further submitted that the petitioner belongs to a radical group taking arms training.

10. Mr.Venkata Subramanian, learned Special Public Prosecutor submitted that the confession statement of the co-accused is admissible as against the appellant, in view of the decision of the Apex Court in Nalini's case. In Nalini's case, according to the learned Special Public Prosecutor, it has been laid down that not only in respect of the offences arising under TADA, but also in respect of two offences arising under other acts also, the provisions of TADA are applicable and as such, the confession statement of the co-accused is admissible against the accused.

11. The learned Special Public Prosecutor relied on a decision reported in 2005 (2) SCC 409, (Prakash Kumar Alias Prakash Bhutto vs State of Gujarat) and an unreported judgemnt in Crl.A.450 of 2007 dated 27.7.2007 and other order dated 12.1.2007 in C.A.No.861 of 2006 batch.

12. The learned Special Public Prosecutor submits that the Abstract of A diary would show that the petitioner never appeared before the Court but he has been going on filing petition under Sec.317 CrP.C to dispense with his appearance.

13. We have carefully considered the submissions made on either side and perused the materials available on record.

14. The facts are not denied. The petitioner has been arrayed as A.29 for various offences including the offence under POTA Act. The petitioner has not so far been granted any bail.

15. His earlier application was dismissed on 3.11.2009 and another bail application filed by the petitioner before the trial court in Crl.M.P.No.156 of 2011 in Spl.C.C.No.5 of 2003 was also dismissed for the reasons extracted above. The trial court has stated that the accused have moved the High Court by filing a writ petition in W.P Nos. 13919 and 13920 of 2005. This court is aware of the fact that the petitioners therein have approached this Court for appointment of the Lawyers of their choice to defend them in the POTA Case and directing the Government to pay reasonable fees for their attending the case. A plea was raised that the fee payable by the Legal Services Authority as per Schedule was too low.

16. This court, after due consideration, passed an order dated 10.12.2008 and fixed the quantum of fee and directed the Government to pay the fees to the Advocates. However, in spite of such fixation of fee the trial has not commenced for various reasons.

17. The only point that arises for consideration in this appeal is whether the petitioner is entitled for bail or not.

18.Granting of bail for the under trial prisoners in TADA cases was considered by the Apex court in 1996 SCC Crl 366 (Shaheen Welfare Association vs Union of India and Others). The Apex Court has held as follows:

10. Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh case, on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to the possible situations that may justify invocation of Article 21.

11. These competing claims can be reconciled by taking a pragmatic approach.

12. The proper course is to identify from the nature of the role played by each accused person the real hardcore terrorists or criminals from others who do not belong to that category; and apply the bail provisions strictly insofar as the former class is concerned and liberally in respect of the latter cases. This will release the pressure on the courts in the matter of priority for trial. Once the total number of prisoners in jail shrinks, those belonging to the former class and, therefore, kept in jail can be tried on a priority basis. That would help ensure that the evidence against them does not fade away on account of delay. Delay may otherwise harm the prosecution case and the harsh bail provisions may prove counter-productive. A pragmatic approach alone can save the situation for, otherwise, one may find that many of the undertrials may be found to have completed the maximum punishment provided by law by being in jail without a trial. Even in cases where a large number of persons are tied up with the aid of Section 120-B or 147 IPC, the role of each person can certainly be evaluated for the purpose of bail and those whose role is not so serious or menacing can be more liberally considered. With inadequate number of courts, the only pragmatic way is to reduce the prison population of TADA detenus and then deal with hardcore undertrials on priority basis before the evidence fades away or is lost. Such an approach will take care of both the competing interests. This is the approach which we recommend to courts dealing with TADA cases so that the real culprits are promptly tried and punished.

13. For the purpose of grant of bail to TADA detenus, we divide the undertrials into three (sic four) classes, namely, (a) hardcore undertrials 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 undertrials whose overt acts or involvement directly attract Sections 3 and/or 4 of the TADA Act; ) undertrials 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 undertrials who were found possessing incriminating articles in notified areas and are booked under Section 5 of TADA.

19. The learned counsel for the petitioner submitted that the only evidence against the petitioner is the confession of the co-accused. Countering such argument, the learned Special Public Prosecutor relied on a decision reported in 2005 2 SCC 409 (Prakash Kumar Alias Prakash Bhutto vs State of Gujarat) wherein the Apex Court has held as follows:

For the reasons aforestated, we are of the view that the decision in Nalini case has laid down correct law and we hold that the confessional statement duly recorded under section 15 of TADA and the Rules framed thereunder would continue to remain admissible for the offences under any other law which were tried along with TADA offences under Section 12 of the Act, notwithstanding that the accused was acquitted of offences under TADA in the same trial.

20. Though the Apex Court has laid down so in respect of cases registered under TADA, the said decision came to be rendered in the context of the offences arising under other acts also being clubbed with offences arising under TADA. It is further held that even if the offfence under TADA is not proved, even then, in respect of other offences, the proviso to Section 15 will apply. Therefore, in our considered view, the said decision is not applicable to the facts of this case. In this case, the cases against the appellant and other co-accused are being tried under the provisions of POTA and not under TADA. Therefore, the provisions of TADA cannot be invoked to this case. So, the relevant provision to be considered in this case is Section 32 of POTA. As rightly pointed out by Mr.R.Sankara Subbu, learned counsel for the appellant, a similar provision like the proviso to Section 15 of TADA is conspicuously absent in Section 32 of POTA. There is no other provision in POTA making the confession of the co-accused admissible in evidence. Therefore, prima facie, we are of the considered view that the contention of Mr.Venkata Subramanian, learned Special Public Prosecutor that the confession of the co-accused is admissible as against the appellant is not acceptable and though the learned Special Public Prosecutor submitted that there is other evidence against the appellant, he is unable to point out such evidence and, therefore, we are of the prima facie view that except the confession of the co-accused, there is no other material as against the appellant. But, however, we make it clear that on the aforesaid issue, viz., whether there is any other evidence available against the appellant or the confession of the co-accused is admissible in evidence, can be gone into elaborately at the time of trial, after recording the evidence by the trial Court. Further, it is not in dispute that the other similarly placed accused like the appellant have been granted bail. Therefore, we are of the considered view that the appellant can also be granted bail, but subject to strict conditions.

21. Accordingly, the petitioner is ordered to be released on bail on his executing a bond for a sum of Rs.10,000/-(Rupees ten thousand only) with two sureties, of which, one surety from a Government Servant, who shall be working in any Department of the Tamil Nadu State Government or the Central Government and who shall have a tenure of not less than five years in such service. On furnishing such surety, the learned Special Court Judge is directed to verify about the genuineness of those sureties before accepting them. The granting of bail is on a further condition that the petitioner shall appear before the trial court on all the dates of hearing without fail, in addition to giving an undertaking that while being released on bail that he shall engage a lawyer of his own choice within 30 days from the date of his release on bail. However, if the petitioner expresses his wish to the Court to appoint a counsel from the Legal Aid Panel, the Court shall appoint a counsel of substantial experience on the criminal side as his counsel.