LT. COL. PRASAD SHRIKANT PUROHITversusSTATE OF MAHARASHTRA

                        [2017] 8 S.C.R. 253


           LT. COL. PRASAD SHRIKANT PUROHIT                            A
                                 v.
                  STATE OF MAHARASHTRA
                (Criminal Appeal No.1448 of2017)
                        AUGUST21,2017                                  B
  [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.[
       Bail - Grant of - Case of Anti-Terrorist Squad (ATS) that
appellant-Serving Army Officer associated with Military Intelligence
and Interior Terrorism (Insurgency Activities), along with other co- C
accused entered into a criminal conspiracy and caused bomb blast
at Malegaon by using explosive substances, to create communal
rift - Charge sheet filed under the provisions of Penal Code, Army
Act, 1967 and 1999 Act, by ATS - Thereafter, investigation taken
over by National Investigation Agency (NIA) - Arrest of
appellant - Bail application -Appellant and others discharged from D
the offences under MCOC Act and direction to transfer the case to
the regular court - Bail application later restored and thereafter,
rejected by the Special Judge - Appeal before the High Court -
During pendency thereof, NIA submitted supplementary charge sheet
dropping charges under MCOCA against all accused - In view
thereof. High Court permitted appellant to file fresh bail .E
application - Rejection of bail application by the courts below -
On appeal, held: Balance is to be maintained between the personal
liberty of the accused and the investigational rights of the agency -
It must result in minimum interference with the personal liberty of
the accused and the right of the agency to investigate the case - F
Keeping in view of the fact that supplementary charge-sheet
submitted by NIA was at variance with the charge-sheet filed by the
ATS, that the trial is likely to take a long time; and that the appellant
has been in prisqn for about 8 years and 8 months, a prima facie
case made out by the appellant - Thus, the appellant enlarged on G
 bail on the conditions stated - Order of the High Court set aside - ·
Penal Code, 1860 - ss. 302, 307, 326, 324, 427, 153A read with
 Section 120B - Arms Act - ss. 3, 5 and 25 - Unlawful Activities
 (Prevention) Act, 1967 (Amended) 2004 - ss. 15, 16, 17, 18, 20 and
 23 - Maharashtra Control of Organized Crime Act, 1999 - ss. 3(/)(i),
 3(1)(ii), 3(2), 3(3), 3(5) - Explosive Substances Act - ss.3, 4, 5 & 6. H
                                    253
254            SUPREME COURT REPORTS                     (2017] 8 S.C.R.


A           Bail - Grant or refusal of bail - Factors to be considered by
      the court - Held: Court mo exercise its discretion in a judicious
      manner and not as a matter of course - Though at the stage of
      granting bail, detailed examination of evidence and elaborate
      documentation of the merit of the case need not be undertaken,
      there is a need to indicate in such orders reasons for prima facie
B
      concluding why bail was being granted particularly where the
      accused is charged of having committed a serious offence - Any
      order devoid of such reasons would suffer from non-application of
      mind - Among other circumstances, court to consider, nature of
      accusation and severity of punishment in case of conviction and
 c    nature of supporting evidence; reasonable apprehension of
      tampering with the witness or apprehension of threat to complainant:
      and prima facie satisfaction of the court in support of the charge.
            Allowing the appeal, the Court
            HELD: 1.1 There are material contradictions in the charge
 D    sheets filed by the ATS and the NIA which are required to be
      tested at the time of trial and this Court cannot pick or choose
      one version over the other. Liberty of a citizen is undoubtedly
      important but this is to balance with the security of the community.
      A balance is required to be maintained between the personal
 E    liberty of the accused and the investigational rights of the agency.
      It must result in minimum interference with the personal liberty
      of the accused and the right of the agency to investigate the case.
      [Para 201 [265-E-Fl
          1.2 The law in regard to grant or refusal of bail is very well
 F settled. The court granting bail should exercise its discretion in
   a judicious manner and not as a matter of course. Though at the
   stage of granting bail a detailed examination of evidence and
   elaborate documentation of the merit of the case need not be
   undertaken, there is a need to indicate in such orders reasons
   for primafacie concluding why bail was being granted particularly
 G where the accused is charged of having committed a serious
   offence. Any order devoid of such reasons would suffer from non-
   application of mind. It is also necessary for the court granting
   bail to consider, among other circumstances, the following factors
   also before granting bail are the nature of accusation and the
 H severity of punishment in case of conviction and the nature of
             LT. COL. PRASAD SHRIKANT PUROHIT v. STATE OF                        255
                            MAHARASHTRA

        . supporting evidence; reasonable apprehension of tampering with         A
          the witness or apprehension of threat to the complainant; and
         prima facie satisfaction of the court in support of the charge. [Para
          21) (265-G-H; 266-A-C)
              1.3 Though an accused has a right to make successive
        applications for grant of bail, the court entertaining such B
        subsequent bail applications has a duty to consider the reasons
        and grounds on which the earlier bail applications were rejected.
        In such cases, the court also has a duty to record the fresh grounds ·
        which persuade it to take a view different from the one taken in
        the earlier applications. [Para 22) [266-C-DJ
                                                                                 c
               1.4 At the stage of granting bail, a detailed examination of
        evidence and elaborate documentation of the merits of the case
        has not to be undertaken. The grant or refusal to grant bail lies
        within the discretion of the court. The grant or denial is regulated,
        to a large extent, by the facts and circumstances of each particular
        case. But at the same time, right to bail is not to be denied merely D
        because of the sentiments of the community against the accused.
        [Para 23] [266-D-E]
                1.5 There are variations in the charge sheets filed by ATS
         and NIA. Further, the appellant who was at the relevant time was
         an Intelligence officer of the Indian Army has refuted the claim of E
         conspiracy on the ground of Intelligence inputs which he informed
         to his superior officers as well and the alleged role of ATS officials
         in the planting of RDX at the residence of A-11 clearly indicate
         the fresh grounds which persuade the appellant to take a view
         different from the one taken in the earlier applications. At the F
         stage of granting bail, a detailed examination of evidence and
         elaborate documentation· of the merit of the case need not be
         undertaken. However, keeping in view the fact that NIA submitted
-~--~
         the supplementary charge-sheet which is at variance with the
         charge-sheet filed by the ATS and that the trial is likely to take a
         long time and the appellant has been in prison for about 8 years G
         and 8 months, the appellant has made out a prim a facie case for
          release on bail and it is appropriate to enlarge the appellant on
          bail, subject to the given conditions. The judgment passed by
          the High Court is set aside. [Para 24, 26) [266-F-H; 267-A; 268-
         ,A]                                                                    H
256           SUPREME COURT REPORTS                      [2017] 8 S.C.R.


A           1.6 The grant of bail to the appellant would be no
      consideration for grant of bail to other accused persons in the
      case and the prayer for bail by other accused persons would be
      considered on its own merits. The Special Court would decide
      the bail applications, if filed by the other accused persons,
      uninfluenced by any observation made by this Court. Further,
 B
      any observations made would not come in the way of deciding
      the trial on merits. [Para 251 (267-GI
           Prasad Shrikant Purohit v. State of Maharashtra and
           Another [20151 8 SCR 575 : (2015) 7 SCC 440 -
           referred to.
 c
                              Case Law Reference
            [20151 8 SCR 575            referred to         Para 3
           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No.1448of2017.
 D
            From the impugned final Judgment and Order dated 25.04.2017
      passed by the High Court of Judicature at Bombay in Criminal Appeal
      No.664 of2016.
          Harish N. Salve, Sr. Adv., Ms Neela Ghokhale, Eliam Pradhi, Ms.
 E    Kamakshi S. Mehlwal, Ejaz Maqbool,Advs. for the Appellant.
            Maninder Singh, ASG, Ms. Ranjana Narayan, B. V. Balaram Das,
      B. Krishna Prasad, Anish Kumar Gupta, Avdhesh Kumar Singh, Chandra
      Shekhar Suman, R.K. Rajwanshi, Ms.Deepshikha Bharati and Mrs. Rita
      Gupta, Ad vs. for the Respondents.
 F          The Judgment of the Court was delivered by
            R. K. AGRAWAL, J. I. Leave granted.
         2. This appeal is directed against the judgment and order dated
   25.04.2017 passed by the High Court ofJudicature at Bombay in Criminal
   Appeal No. 664 of20l 6 whereby the Division Bench of the High Court
 G dismissed the bail application filed by the appellant herein.
            3. Brief facts:
   (a) On29.09.2008, at around 9:35 p.m., a bomb explosion took place at
   Malegaon, District Nasik, opposite Shakil Goods Transport Company
 H betweenAnjuman Chowk and Bhiku Chowk. The said blast was caused
     LT. COL. PRASAD SHRIKANT PUROH!T v. STATE OF                        257
           MAHARASHTRA [R. K. AGRAWAL, J.)

by explosive device fitted in LML Freedom Motor Cycle bearing A
Registration No. MH-15-P-4572. As a result of the said explosion, six
persons were killed and about 100 persons had received injuries of various
nature. Damage to the property was also caused.
(b) The offence came to be registered under CR No. 130/2008 in Azad
Nagar Police Station, Malegaon under Sections 302, 307, 326, 324, 427,   B
153-Aand 120-B of the Indian Penal Code, 1860 (in short 'the IPC')
read with Sections 3, 4, 5 and 6 of the Explosive Substances Act read
with Sections 3, 5 and 25 of the Arms Act, 1959.
(c) During the course of investigation, the samples collected from the
place of offence were sent to the Forensic Science Laboratory at Nasik c
and the same were found to be containing Cyclonite (RDX) and
Ammonium Nitrate. On 18.10.2008, the provisions of Sections 15, 16,
17, 18, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967
(Amended) 2004, (in short 'the UAP Act') were invoked and the case
was entrusted to Deputy Superintendent of Police, (HQ), Nasik Rural.
On 26.10.2008, the Anti-Terrorist Squad (ATS), Mumbai took charge of D
the investigation and on 29 .11.2008, the provisions of Maharashtra Control
of Organized Crime Act, 1999 (in short 'the MCOC Act) were added.
(d) During investigation, it was found that the appellant herein, along
with other co-accused in the case, entered into a criminal conspiracy
between January, 2008 to October, 2008 with a common object and E
intention to strike terror in the minds of people caused bomb blast at
Malegaon by using explo.sive substances to cause damage to life and
property arid to create communal rift. According to ATS, the appellant
herein had brought RDX with him from Kashmir for the purpose of
Bomb Blast at Malegaon.                                                 F
 (e) During investigation, it has been further revealed by the ATS that the
 appellant herein was a serving Army Officer and was associated with
 Military Intelligence and Interior Terrorism (Insurgency Activities). The .
.appellant herein floated 'Abhinav Bharat' organization in the year 2007
 inspite of being serving as a Commissioned Officer in Armed Forces. G
 The other co-accused in the case were· also the members of the said
 organization. The object of the Organization was to tum India into a
 Hindu Rashtra called as 'Aryavrat'. They had planned to train persons
 for guerrilla war and had also decided to kill the persons opposing their
 object of formation of a Hindu Rashtra. As per the investigation, it has
 also come out that the appellant herein along with other persons had H
258            SUPREME <;:OURT REPORTS                        [2017] 8 S.C.R.


A participated in various meetings of the said Organization to discuss various
  aspects for achieving their goals. Further, it is the case of the ATS that
  the organization, viz., 'Abhinav Bharat' is an Organized Crime Syndicate
  and its members including the appellant herein were active since 2003.
  In one of the meetings at Bhopal, on 11/12 April, 2008, the criminal
B conspiracy to cause bomb blast at Malegaon was hatched. In the said
  meeting, the appellant herein took the responsibility ofproviding explosives
  for the common object in order to take revenge of 'Jihadi' activities by
  Muslim community.
      (f) After completion of the investigation, on 20.01.2009, the ATS, Mumbai,
 C    filed charge sheet under Sections 302, 307, 326, 324, 427, 153A read
      with Section 120B of the IPC and Sections 3, 5 and 25 of the Arms Act
      and Sections 15, 16, 17, 18, 20 and 23 of the UAP Act, Sections 3(1 )(i),
      3(1)(ii),3(2), 3(3), 3(5) of the MCOC Act, Sections 3, 4, 5 and 6 of the
      Explosive Substances Act.
   (g) The appellant came to be arrested on 05.11.2008 in connection to the
 D said offence. The appellant herein preferred a Bail Application being
   No. 42 of 2008 before the Special Judge under MCOCA for Greater
   Mumbai. By order dated 31.07 .2009, the Special Judge discharged the
   appellant and other co-accused from the offences under MCOC Act
   and directed to transfer the case to the regular court at Nasik. The State
 E Government, being aggrieved by the order dated 31.07.2009, filed an
   appeal being 866 of 2009 before the High Court. A Division Bench of
   the High Court, vide order dated 19.07.2010, set aside the order dated
   31.07 .2009 and restored the bail application filed by the appellant herein
   for hearing on merits. The appellant herein went in appeal before this
   Court and filed Criminal Appeal Nos. 1969-1970 of2010. It would be
 F appropriate to mention here that after filing of the charge sheet by ATS,
    Mumbai, the investigation of the same was started by the National
    Investigation Agency, (NIA), New Delhi as per the order of the
    Government oflndia dated 01.04.2011 and on 13.04.2011, the NIA re-
    registered the offence in respect of the said incident as CR No. 5/11.
 G (h) This Court, in Prasad Slirikant Purohit vs. State of Maharashtra
   and Another (2015) 7 SCC 440, dismissed the criminal appeals filed by
   the appellant herein while restoring the Bail Application No. 42 of2008
   to the file of the Special Judge for passing orders on merits. On the
   question of applicability of the MCOC Act, this Court has observed as
 H under:-
    LT. COL. PRASAD SHRIKANT PUROHIT v. STATE OF                           259
          MAHARASHTRA [R. K. AGRAWAL, J.]

       "95. In the light of our above conclusions on the various A
       submissions, we are convinced that in respect of the appellant in
       Criminal Appeal No.1971 of2010, namely,A-7, there is no scope
       even for the limited purpose of Section 21(4)(b) to hold that
       application ofMCOCA is doubtful. We have held that the said
       appellant A-7 had every nexus with all the three crimes, namely, B
       Parbhani, Jalna and Malegaon and, therefore, the bar for grant
       of bail under Section 21 would clearly operate against him and
       there is no scope for granting any bail. Insofar as the rest of the
       appellants are concerned, for the purpose of invoking Section
       21(4)(b), namely, to consider their claim for bail, it can be held
       that for the present juncture with the available materials on record, C
       it is not possible to show any nexus of the appellants who have
       been proceeded against for their involvement in Malegaon blast
       with the two earlier cases, namely, Parbhani and Jalna. There is
       considerable doubt about their involvement in Parbhani and Jalna
       and, therefore, they are entitled for their bail applications to be D
       considered on merits."
Vide order dated 12.10.2015, the Special Judge, rejected the bail
application of the appellant herein. Aggrieved by the decision dated
12.10.2015, the appellant herein preferred a Criminal Appeal being No.
138 of 2016 before the High Court. During the pendency of the aforesaid
appeal before the High Court, the NIA submitted supplementary charge        E
sheet dropping the charges under MCOCA against all the accused
persons including the appellant herein. In view of the supplementary
charge sheet by the NIA, the High Court permitted the appellant herein
to file fresh bail application.
(i) The appellant herein filed a fresh bail application before the Court of F
Special Judge under MCOC Act, 1999 and NIA Act, 2008 for Greater
Mumbai. The Special Judge, vide order dated 26.09.2016, denied the
bail to the appellant herein. Being aggrieved by the order dated
26.09.2016, the appellant herein went in appeal before the High Court
and filed Criminal Appeal No. 664 of2016. The NIA resisted the bail G
application of the appellant herein on various grounds before the High
Court. On 25.04.2017, a Division Bench of the High Court, dismissed
the bail application of the appellant herein. Aggrieved by the order dated
25.04.2017, the appellant has filed this appeal before this Court by way
of special leave.
                                                                            H
260            SUPREME COURT REPORTS                           [2017] 8 S.C.R.


A            4. Heard Mr. Harish Salve, learned senior counsel for the appellant
      herein and Mr. Maninder Singh, learned Additional Solicitor General for
      the respondent-State and Mr. Amarendra Sharan, learned senior counsel
      for the intervenor-Nisar Ahmed Haji Sayed Bilal, who is the father of
      one of the deceased.
 B Point(s) for consideration:-
             5. The only point for consideration before this Court is whether
      in the present facts and circumstances of the case, the appellant has
      made out a case for grant of bail or not?
      Rival contentions:-
 c
              6. Mr. Harish Salve, learned senior counsel for the appellant herein
      contended before this Court that in view of the supplementary report
      filed by the NIA, dropping the charges in respect of the offences under
      the MCOC Act, it has to be held that there is no prima facie case
      against the appellant herein. Learned senior counsel further contended
 D    that earlier, the bail applications were rejected mainly on the basis of the
      confessional statements of the co-accused under the MCOC Act and
      now, as the charges under the MCOC Act have been dropped, the
      confessional statements of the co-accused are required to be excluded
      from consideration and in their absence thereof, there is no incriminating
 E    material against the appellant herein so as to deny him the benefit of
       bail. Learned senior counsel further contended that during investigation
      by NIA, PW-79, PW-112 and PW-55 have retracted their previous
       statements made before the ATS. The fact that the material witnesses
       have retracted from their statements while complaining about the
       harassment and torture meted out by the officers of the ATS, clearly
 F     indicate that the investigation carried out by the ATS was not fair but it
       was tainted. The statements and confessions have been extracted
       subjecting the wit11ess and co-accused to the torture and duress, under
       the threats of implicating them falsely. Learned senior counsel contended
       that in view of the withdrawal of those statements and confessions,
 G     there remains nothing on record to implicate the appellant herein with
       the alleged offence.
              7. Learned senior counsel further contended that the appellant
       was a Military Intelligence Officer at the relevant time and had
       participated in the meetings held at various places like Faridabad, Bhopal
 H
      LT. COL. PRASAD SHRIKANT PUROHIT v. STATE OF                                261
            MAHARASHTRA [R. K. AGRAWAL, J.]

 etc. in discharge of his duties as such for collecting intelligence and A
 creating new sources and the said fact has also been revealed in the
 Report of Court oflnquiry (Col) conducted by theArtny Officers against
 him as well as in the reply filed by the Ministry of Defence and the
 documents filed by the said Ministry in the Special Court. Learned
·senior counsel further contended that there was no sufficient material to
                                                                           B
 show that in the said meetings, any conspiracy was hatched to commit
 the bomb blast at Malegaon.
        8. Learned senior counsel vehemently contended the statement
 of PW-21 that immediately after the alleged conspiracy meeting, he found
 the appellantherein disclosing the details of the said meeting to his superior
 officers in Military Inte111gence in order to suggest that no conspirator        c
 will ever divulge the details of the conspiracy to the superior officers in
 Military Intelligence. Even the appellant herein also informed that it
 was a 'covert operation' of Military Intelligence.
         9. Learned senior counsel further contended that the Report of
. Inquiry (Roi) also reveals that the RDX was planted by the ATS officer D
  in the house of Sudhakarn Chaturvedi (A-11). The statements of PW-
  180 and PW-183 also indicate the same but the courts below disbelieved ·
  the version of NIA in this regard.
           10. Further, learned senior counsel strenuously contended that
   whether the amended provision of Section 43(D)(5) of the UAP Act be E
   applied retrospectively to the appellant herein. The said provision had
· been amended OJl .31.12.2008 while the incident. had taken place on ·
 . 29.09.2008. Ile further contended that the High Court.was not right in·
   holding that the right of bail of the accused is a procedural right and
    cannot be considered as· a substantive righfforretrospective applicability F
   of the provision. Further, the sanction granted for prosecution of the
 · appellant under Section 45(1) of the UAP Act was not valid. He further
    stressed upon the point that the High Court erred in ignoring the Doctrine
    of Parity while granting bail to Pragya Singh Thakur (A-1) wherein the·
    court has taken into account the. changed circumstances in the charge
  · sheet filed by the NIA but the very same facts have been ignored in the G
  . case of the appellant herein. Learned senior counsel finally submitted
    that the appellant is in jail since last about eight years and eight months
    and the delay is on account of the prolonged time taken by the investigation
   .agencies and the appellant herein has a good primafacie case to succeed
                                                                                  H
262           SUPREME COURT REPORTS                        [2017) 8 S.C.R.


A for grant of bail before this Court.
          11. Learned Additional Solicitor General (ASG) for the respondent-
   State strongly controverted the contentions raised by learned senior
   counsel for the appellant herein by submitting that he was the main
   conspirator and prima facie there is sufficient material on record to
 B prove his involvement in the alleged offence. Merely because the charges
   have been dropped under the MCOC Act, it does not mean that there is
   no material against the appellant herein in respect of other charges. The
   NIA has given clean chit to Pragya Singh Thakur (A-1) and some other
   accused person but it has not exonerated the appellant herein from the
   charges leveled against him which clearly proves that the NIA has also
 C found sufficient material to implicate the appellant.
          12. Learned ASG finally submitted that the conclusions about
   involvement of the appellant herein in the offences alleged against him
   as drawn by the ATS are supplemented and supported by the NIA officers
   in their detailed investigation. Having regard to the gravity and
 D seriousness of the offence, which were in the nature of waging war
   against the unity and integrity of the Nation, and, that too, by violent
   m1<ans, the bail application of the appellant could not have been allowed
   and it has rightly been rejected by the courts below and no interference
   is sought for by this Court.
 E        13. Mr. Amarendra Saran, learned senior counsel for the intervenor
   submitted that there are sufficient material and evidence on record to
   establish a primafacie case of the involvement of the appellant herein
   in the criminal offence and the report of the Court of Inquiry (Col)
   submitted by the Military authorities cannot be taken into consideration
 F for deciding the question of grant of bail.
      Discussion:-
          14. In order to prove the prima facie case against the appellant,
   the prosecution has relied upon the transcription of the conversations of
   the meetings obtained from the laptop of Swami Amrutanand (A-10),
 G statement of prosecution witnesses recorded under Sections 161 and
   164(5) of the Code of Criminal Procedure, 1973 (in short 'the Code'),
   intercepted telephonic conversations between the appellant herein and
   co-accused persons and lastly the finding of traces ofRDX in the house
   of co-accused Sudhakar Chaturvedi (A-11). With regard to the
 H transcription of the conversations of the meetings, it was urged from the
     LT. COL. PRASAD SHRIKANT PUROHIT v. STATE OF                            263
           MAHARASHTRA [R. K. AGRAWAL, J.]

side of the appellant that there was no such conspiracy hatched between A
the persons present in the meeting to commit bomb blasts at Malegaon
and the persons present have expressed their general opinion about the
then prevailing political and social situation. In this backdrop, it is relevant
to note that the appellant herein was a serving Army Officer and was
associated with Military Intelligence and Interior Terrorism (Insurgency B
Activities). In the statement of PW-21, it has been revealed that
immediately after the alleged conspiracy meeting, he found the appellant
herein disclosing the details of the said meeting to his superior officers in
Military Intelligence. Even the appellant herein also informed that it
was a 'covert operation' of Military Intelligence and he attended the
said meetings to create the counter intelligence and no conspirator will C
ever divulge the details of the conspiracy to the superior officers in
Military Intelligence. Besides this, the documents filed by the Ministry
of Defence and the papers of the Court of Inquiry also substantiate the
claim of the appellant herein. Similarly, intercepted telephonic
conversations between the co-accused and the appellant herein were D
supported as part of duty.
        15. The NIA started the investigation on the basis of the facts
stated in the FIR and the evidence collected by the ATS, Mumbai. During
investigation, it was found that there were contradictions with regard to
the evidence led in the charge sheet by the ATS. On the basis of the
specific points covered during the investigation conducted by the NIA; it     E
was concluded that no offence under the MCOC Act was attracted and
the confessional statements recorded under the provisions of the said
Act by ATS Mumbai were not being relied upon by the NIA in the charge
sheet against the accused persons. In fact, on evaluation of the evidence
against Pragya Singh Thakur (A-1 ), the evidence on record were not           F
found sufficient by the NIA to prosecute her as all the witnesses had
retracted from their statements and thus no case was made out against
her.                                         1

      16. As regards the other parameters to be considered while
deciding the application of bail, like, reasonable apprehension of the G
witnesses being tampered with and danger, of-course, of justice being
thwarted by grant of bail, needless to state that already some of the
witnesses have retracted their statements made before the ATS. A
perusal of the statements of various prosecution witness recorded under
Section 164 of the Code by the NIA, it was revealed that the ATS,
                                                                        H
264           SUPREME COURT REPORTS                          [2017] 8 S.C.R.


A Mumbai forced them to make the statements under the aforesaid Section
  by threatening them to falsely implicate them in the case. In other words,
  witnesses retracted from their statements recorded by the ATS, Mumbai
  at Mumbai. Even during re-examination of PW-79 recorded under
  Section 164 of the Code, he deposed that he did not attend any meeting
B of 'Abhinav Bharat' held at Bhopal and he had never visited Bhopal
  until ATS took him to Ram Mandir, Bhopal in the month of May, 2009.
  The very same statement was again recorded at Delhi by learned
  Metropolitan Magistrate, where he confirmed the same.
          17. In view of the above, it would be relevant to quote the retracted
   statement of PW-55, mentioned in the charge sheet filed by the NIA,
 C wherein he stated that he did not retract in front of the Magistrate while
   his statement was being recorded under Section 164 of the Code due to
   threat and pressure of the ATS. However, he sent one complaint to
   Maharashtra State Human Rights Commission, Mumbai on 05 .I 0.2009
   stating that he was forced to give the confessional statement as dictated
 D to him by the ATS Mumbai that too before transfer of the investigation
   of the case to the NIA. He further alleged that the following lies were
   dictated to him to depose before the Magistrate by the ATS which he
   also incorporated in the complaint sent to State Human Rights
   Commission which are as under:-

 E           (1) That Lt. Col. Prasad Purohit gave him 3 weapons and
             ammunition to be kept in his house for a month sometime in
             2006. The description of the weapons was also dictated to him.
             (2) That he saw RDX in the house of Lt. Col. Prasad Purohit in
             a green sack at Devlali.
 F           (3) That Lt. Col. Purohit confessed to him about having supplied
             RDX for Samjhauta Express Blast.
              (4) That Lt. Col. Purohittold him in the early 2008 that something
              was planned to be done soon. He further told him that an action
              was planned in Nashik District in Oct/Nov. 2008.
 G
              (5) That he was asked to say that Lt. Col. Purohit had confessed
              to him about planning and executing the Malegaon blast along
              with his accomplices.
            18. Apart from the above, during the investigation by the NIA, it
      was revealed that the Army authorities had conducted a Court oflnquiry
 H
    LT. COL. PRASAD SHRIKANT PUROHIT v. STATE OF                           265
          MAHARASHTRA [R. K. AGRAWAL, J.J.

(Col) against the appellant herein. During scrutiny of the proceedings of . A
the Col, a different story ofassembling ofIED in the House ofSudhakar
Chaturvedi (A-11) came to light. During re-examination of the witnesses
by the NIA who deposed before the Court of Inquiry (Col), it was
revealed that they suspiciously found AP I Bagde of ATS in the house of
A-11 when A-11 was not present in the house .. On considering the facts B
narrated by the witnesses, the question arises here as to why API Bagde
visited the house of A-11 in his absence. It is also pertinent to mention
her that the ATS conducted the search of the house ofA-11 on 25J1.2008
wherefrom they had taken the swab of RDX which creates a doubt on
the recovery ofRDX keeping in view the examination of the witnesses.
Even in the charge sheet filed by the ATS, it has been very specifically C
mentioned that the recovery itself becomes suspect on the ground that
the ATS Mumbai may have planted the RDX traces to implicate him and
the other accused persons in the case.
        19. Further, with regard to the contention ofleamed senior counsel
as to the non-applicability of Section 43-D(5) of the UAP Act or want of D
valid sanction for the prosecution, it was rightly suggested by the learned
ASG that it can be considered at the time of trial and not at this stage.
Conclusion:-
       20. In our considered opinion, there are. material contradictions in
the charge sheets filed by the ATS Mumbai and the NIA which are E
required to be tested at the time of trial and this Court cannot pick or
choose one version over the other. Liberty of a citizen is undoubtedly
important but this is to balance with the security of the community. A
balance is required to be maintained between the personal liberty of the
accused and the investigational rights of the agency. It must result in F
minimum interference with the personal liberty of the accused and the
right of the agency to investigate the case.
       21. The law in regard to grant or refusal of bail is very well settled.
The cotirt granting bail should exercise its discretion in a judicious manner
and not as a matter of course. Though at the stage of granting bail a G
detailed examination of evidence and elaborate documentation of the
merit of the case need not be undertaken, there is a need to indicate in
such orders reasons for prima jacie concluding why bail was being
granted particularly where the accused is charged of having committed
a serious offence. Any order devoid of such reasons would suffer from
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266            SUPREME COURT REPORTS                           [2017] 8 S.C.R.


A non-application of mind. It is also necessary for the court granting bail to
  consider, among other circumstances, the following factors also before
  granting bail; they are:
             (a) The nature of accusation and the severity of punishment in
             case of conviction and the nature of supporting evidence.
 B            (b) Reasonable apprehension of tampering with the witness or
              apprehension of threat to the complainant.
              (c) Primafacie satisfaction of the court in support of the charge.
             22. Before concluding, we must note that though an accused has
 c    a right to make successive applications for grant of bail, the court
      entertaining such subsequent bail applications has a duty to consider the
      reasons and grounds on which the earlier bail applications were rejected.
      In such cases, the court also has a duty to record the fresh grounds
      which persuade it to take a view different from the one taken in the
      earlier applications.
 D
            23. At the stage of granting bail, a detailed examination of evidence
      and elaborate documentation of the merits of the case has not to be
      undertaken. The grant or refusal to grant bail lies within the discretion of
      the court. The grant or denial is regulated, to a large extent, by the facts
      and circumstances of each particular case. But at the same time, right
 E    to bail is not to be denied merely because of the sentiments of the
      community against the accused.
          24.ln view of the foregoing discussion, we are of the considered
   opinion that there are variations in the charge sheets filed by ATS Mumbai
   and NIA. Further, the appellant herein, who was at the relevant time
 F was an Intelligence officer of the Indian Army has refuted the claim of
   conspiracy on the ground of Intelligence inputs which he informed to his
   superior officers as well and the alleged role of ATS officials in the
   planting of RDX at the residence of A-11 clearly indicate the fresh
   grounds which persuade the appellant herein to take a view different
 G from the one taken in the earlier applications. As mentioned earlier, at
   the stage of granting bail, a detailed examination of evidence and elaborate
   documentation of the merit of the case need not be undertaken. However,
   keeping in view the fact that NIA has submitted the supplementary
   charge-sheet which is at variance with the charge-sheet filed by the

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    I,,T. COL. PRASAD SHRIKANT PUROHIT v. STATE OF                            267
            MAHARASHTRA [R. K. AGRAWAL, J.]

ATS and that the trial is likely to take a long time and the app~llant has A
been in prison for about 8 years and 8 months, we are of the considered
view that the appellant has made out a prima fade case for release on
bail and we deem it appropriate to enlarge the appellant herein on bail,
subject to the following conditions:
        (i) On his furnishing personal security in the sum of Rs 1 (one)      B
        lakh with two solvent sureties, each of the like amount, to the
        satisfaction of the trial court.
        (ii) The appellant herein shall appear in court as and when
        directed by the court.
        (iii) The appellant herein shall make himself available for any       C
        further investigation/interrogation by NIA as and when requin;d.
        (iv) The appellant herein shall not directly or indirectly make any
        inducement, threat or promise to any person acquainted with the
        facts of the case so as to dissuade that person from disclosing
        such facts to the court or to the investigating agency or to any D
        police officer.
        (v) The appellant herein shall not leave India without the previous
        permission of the trial court.
        (vi) In case the appellant herein is in possession of a passport,     E
        the same shall be deposited with the trial court before being
        released on bail.
        (vii) We reserve liberty to the respondents to make an appropriate
        application for modification/recalling the order passed by us, if
        for any reason, the appellant herein violates any of the conditions
                                                                            F
        imposed by this Court.
       25. It is further made clear that the grant of bail to the appellant
herein shall be no consideration for grant of bail to other accused persons
in the case and the prayer for bail by other accused persons (not before
us) shall be considered on its own merits. We also make it clear that the
Special Court shall decide the bail applications, if filed by the other accused G
persons, uninfluenced by any observation made by this Court. Further,
any observations made by us in this order shall not come in the way of
deciding the trial on merits.

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268                SUPREME COURT REPORTS                     [2017] 8 S.C.R.


A            26. In view of the above, we set aside the judgment passed by the
      High Court dated 25.04.2017 and grant bail to the appellant herein on
      the conditions mentioned above. Intervention Application is allowed. The
      appeal is allowed.


      N1dhi Jain                                                 Appeal allowed.