Prafool Kumar Malakar @ Prafful Malakar @ Prafful Kumar Malakar @ Praful Bhagat aged v. The Union of Indina through National Investigation Agency
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No.92 of 2024 Prafool Kumar Malakar @ Prafful Malakar @ Prafful Kumar Malakar @ Praful Bhagat aged about 38 years, son of Nandkeshwar Bhagat, resident of Village-Chainpur, PO. & P.S.-Bhagwan Ganj, District Patna, Bihar. …… Appellant Versus The Union of Indina through National Investigation Agency ……Respondent ---------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA ----- For the Appellant : Mr. Rajesh Kumar, Advocate For the Respondent N.I.A: Mr. Saurav Kumar, Advocate Order No.04/ Dated:27.02.2024 ….. 1. Learned counsel appearing for the appellant has sought for leave of this Court to make necessary correction in the provision of law under which the delay condonation application has been filed because due to inadvertence the application has been filed under Section 5 of the Limitation Act, 1963 instead of filing it under Section 21(5) of the National Investigation Agency Act, 2008. 2. Considering the aforesaid submission, let necessary correction be made in the provision of law in course of the day I.A. No. 2004 of 2024 3. The instant interlocutory application has been filed for condoning the delay of 8 days in preferring the instant criminal appeal.
Legal Reasoning
4. Heard learned counsel for the parties. 2 5. Considering the reason assigned therein and the same having been found to be within the period of 90 days as stipulated under Section 21(5) of the National Investigation Agency Act, 2008, this Court is of the view that the instant delay condonation application is fit to be allowed. 6. Accordingly, the delay of 8 days in preferring the instant appeal is hereby condoned.
Decision
7. I.A. No. 2004 of 2024 stands allowed and disposed of. Cr. Appeal (DB) No.92 of 2024 8. The instant appeal under section 21(4) of the National Investigation Agency Act, 2008 has been directed against the order dated 19.12.2023 passed by the learned AJC-XVI-Cum-Special Judge, NIA, Ranchi in Misc. Criminal Application No. 3254 of 2023 arising out of Spl NIA Case No. 01 of 2012 corresponding R.C. Case No. 08/2012/NIA/DLI arising out of Chauparan P.S. Case No. 187 of 2012 whereby and whereunder the prayer for regular bail filed under Section 121/121A/386/387/414/120B of the Indian Penal Code, under Section 10/13/17/18/20 of the UA(P) Act and under Section 17 of C.L.A. Act has been rejected. 9. The fact of the case is that the appellant who was directed to be released on bail by the order passed by the Division Bench of this Court vide order dated 06.04.2015 passed in Criminal Appeal (DB) No. 68 of 2015. The case of the appellant is that he released from judicial custody and all along participated in the proceeding before the learned trial court on the day when the charge was to be altered the petitioner has sought his 3 representation by filing an application under Section 317 Cr.p.c. but the learned court has passed repeated direction by issuing order for physical appearance so that the charge altered in presence of the appellant but no hint was given and finally the learned trial court has cancelled the bail bond. The warrant has also been issued against the bailor. 10. The ground has been taken that the petitioner admittedly after knowing the aforesaid fact about the cancellation of the bail bond and only misuse of one date and admittedly after knowing about the fact he has surrendered and now remained in custody for about 5 months. 11. The learned court while considering the prayer for regular bail has not proceeded this facts rather rejected the application filed under 439 Cr.p.c. 12. While on the other hand, learned counsel appearing for the NIA has opposed for showing interference with the impugned order by taking the ground of conduct of the appellant. 13. It has been submitted that the witnesses have already been examined and the case was at the stage of argument and an application was filed for alteration of charge and that time the requirement of appellant was to participate in the judicial proceeding on the date fixed but he has chosen not to appear rather he has filed application under Section 317 Cr.p.c. The same however has been rejected and thereafter repeated direction was passed for his physical appearance so that the charge will be altered. The appellant has not appeared rather when the bail bond was cancelled and in consequent thereof the non bailable warrant was issued and even 4 the warrant was issued against the bailor then only the appellant has surrendered and languishing in judicial custody. 14. It is submitted that the petitioner was given more than ample of time but he failed to turn up, lastly, petition under Section 317 Cr.p.c. was rejected and non bailable warrant of arrest was issued. The notices have also been issued to the bailor. The appellant has surrendered only when the proclamation was issued. It has further been submitted that 86 witnesses have already been examined and the learned court after taking into consideration the aforesaid fact and coming to the conclusion that it would not be just and proper to release the appellant on bail at the time of fag and the trial, therefore, the impugned order may not be interfered with. 15. This Court has heard the learned counsel for the parties and gone across the finding recorded by the learned court while considering the prayer for regular bail. 16. This Court is not discussing the merit of the case since the petitioner was extended the the benefit of privilege of regular bail by the order passed by the Co-ordinate Division Bench of this Court vide order dated 06.04.2015 passed in Criminal Appeal (DB) No. 68 of 2015 as stated in the para 8 of the memo of appeal. 17. The appellant thereafter, at the time when the charge was altered has not participated in the proceeding. The repeated judicial order was passed seeking his appearance but he has avoided, taking the plea that the appellant has filed application under Section 317 Cr.p.c. Thereafter, the 5 bail bond was cancelled and the notice was also issued to the bailor and lastly the proclamation was issued only then he has surrendered. 18. The learned court has taken into consideration the aforesaid fact and considered primarily the fact that the 86 witnesses have already been examined and the trial is at the fag end. The learned court rejected the prayer for regular bail. 19. The Court is of the view that the conduct of the petitioner is not said to be proper so as to enlarge him on bail as reason being as noted by the learned court for the physical appearance but the same has not adhered to, rather the petition under Section 317 Cr.p.c. was filed which suggest that the appellant was having knowledge of judicial order passed by the learned trial court for his appearance which led him to file petition under Section 317 Cr.p.c. Even when the petition under Section 317 Cr.p.c. was rejected even then he has not appeared. Lastly the learned court to cancel the bail bond and non-bailable warrant of arrest was issued and further notice to bailor was also issued even then the appellant has not surrendered when the proclamation under Section 82 Cr.p.c. was issued then only he has surrendered. 20. Otherwise also we are seating in an appeal and as such the basic principle to exercise the power of the appellate court while showing interference with the order passed by the Court that the subject matter of the appeal is only to be exercised with any perversity in finding of the order or having issue of lack of jurisdiction. 6 21. This case is not of the issue of lack of jurisdiction rather this case is based upon the perversity but we have not found any perversity in the impugned order therefore, we are of the view that the impugned order needs not to be interfered with. 22. Accordingly, the instant Criminal Appeal is, hereby, dismissed. (Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) Rajnish/