In National Investigation Agency v. Zahoor
Ahmad Shah Watali (supra), this Court considered the
parameters for exercise of the power under Section 43
(5) D, held as follows:
“23. By virtue of the proviso to sub-section (5), it
is the duty of the Court to be satisfied that there
are reasonable grounds for believing that the
accusation against the accused is prima facie
true or otherwise. Our attention was invited to
the decisions of this Court, which has had an
occasion to deal with similar special provisions in
TADA and MCOCA. The principle underlying those
decisions may have some bearing while
considering the prayer for bail in relation to the
offences under the 1967 Act as well. Notably,
under the special enactments such as
TADA, MCOCA and the Narcotic Drugs and
Psychotropic Substances Act, 1985, the Court is
required to record its opinion that there are
reasonable grounds for believing that the
accused is “not guilty” of the alleged offence.
There is a degree of difference between the
satisfaction to be recorded by the Court that
there are reasonable grounds for believing that
the accused is “not guilty” of such offence and
the satisfaction to be recorded for the purposes
of the 1967 Act that there are reasonable
grounds for believing that the accusation against
such person is “prima facie” true. By its very
nature, the expression “prima facie true” would
mean that the materials/evidence collated by the
investigating agency in reference to the
accusation against the accused concerned in the
first information report, must prevail until
contradicted and overcome or disproved by other
evidence, and on the face of it, shows the
complicity of such accused in the commission of
the stated offence. It must be good and sufficient
on its face to establish a given fact or the chain
of facts constituting the stated offence, unless
rebutted or contradicted. In one sense, the
degree of satisfaction is lighter when the Court
has to opine that the accusation is “prima
facie true”, as compared to the opinion of the
accused “not guilty” of such offence as required
under the other special enactments. In any case,
the degree of satisfaction to be recorded by the
Court for opining that there are reasonable
grounds for believing that the accusation against
the accused is prima facie true, is lighter than
the degree of satisfaction to be recorded for
considering a discharge application or framing of
charges in relation to offences under the 1967
Act….”
11. While considering the grant of bail under Section 43
(5) D, it is the bounden duty of the Court to apply its
mind to examine the entire material on record for the
purpose of satisfying itself, whether a prima facie case is
made out against the accused or not.
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal Nos . 314-315 of 2021
Sudesh Kedia Vs Union of India
Author: L. NAGESWARA RAO, J.
Dated: April 09, 2021.
Print Page
