Shesh Nath Singh Kharwar … v. Union of India Jharkhand through National Investigation Agency, Ranchi
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (D.B.) No. 203 of 2024 --- Shesh Nath Singh Kharwar … … Appellant Versus Union of India Jharkhand through National Investigation Agency, Ranchi, … … Respondent --- CORAM : HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY : HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Appellant For the Respondent --- : M/s. Indrajit Sinha & Rishav Kumar, Advocate : Mr. Amit Kumar Das, Special P.P. Mr. Saurav Kumar, Advocate --- 06/20.06.2024 Heard Mr. Indrajit Sinha, learned counsel appearing for the
Legal Reasoning
one of the co-accused Balram Sahu has been rejected by this court in Cr. Appeal (DB) No. 1375 of 2023. Mr. Das has added that the trial is on the verge of completion and only two witnesses are left to be examined. 6. Mr. Indrajit Sinha, learned counsel appearing for the appellant in response has stated that though the prosecution has to examine two more witnesses, but it is not known as to how many defence witnesses have to be examined considering the fact that there are 27 accused persons. He has again reiterated his submission with respect to the allegations being vague against the appellant and the angle of conspiracy neither having been proved nor have been corroborated by any surrounding circumstances. 7. We have heard the learned counsel for the respective parties and have also perused the various affidavits on record. 8. The role of the appellant has been demarcated in paragraph 17.34 of the 3rd supplementary charge-sheet which reads as under: Role of /offences established against 17.34 Shesh Nath Singh Kharwar (A-16): It is established that A-16 criminally conspired with A-17 and operatives of CPI (Maoists) including A-5 and A-14 and during incident, though he was PSO and duty bound to protect MLA, he had tactically left the SoC 5 minutes before and appeared at the SoC several minutes after the incident. He did not fire on the assailants though he was issued with a carbine machine gun with sufficient ammunition. Hence, as per averments made in the earlier paragraphs, it is established that A-16 by becoming member of terrorist gang, conspired with the co- accused members of the terrorist gang to cause the murder of Ramesh Singh Munda and three others. He facilitated the co-accused and betrayed the victims resulting in the murder of Ramesh Singh Munda and three others and thereby 4 committed offences under sections 120B read with 302 of IPC, section 302 of IPC, sections 18 & 20 of UA (P) Act.” 9. What would transpire from a perusal of the 3rd supplementary charge-sheet and specifically with respect to the appellant is that he was one of the bodyguards of the then sitting MLA – Ramesh Singh Munda and he had conspired with Gopal Krishna Patar @ Raja Peter (A-17) who was the initiator of the conspiracy and who desperately wanted to remove Ramesh Singh Munda from his path. The said Gopal Krishna Patar @ Raja Peter was in custody since long and considering the said fact he was granted bail by this court in Cr. Appeal (DB) No. 1895 of 2023. 10. Mr. A. K. Das, learned Special P. P. appearing for the NIA has referred to the case of “Gurwinder Singh Vs. State of Punjab & Another” reported in (2024) SCC Online SC 109, wherein it has been held as follows: “46. The Appellant’s counsel has relied upon the case of KA Najeeb (supra) to back its contention that the appellant has been in jail for last five years which is contrary to law laid down in the said case. While this argument may appear compelling at first glance, it lacks depth and substance. In KA Najeeb’s case this court was confronted with a circumstance wherein except the respondent-accused, other co-accused had already undergone trial and were sentenced to imprisonment of not exceeding eight years therefore this court’s decision to consider bail was grounded in the anticipation of the impending sentence that the respondent-accused might face upon conviction and since the respondent-accused had already served portion of the maximum imprisonment i.e., more than five years, this court took it as a factor influencing its assessment to grant bail. Further, in KA Najeeb’s case the trial of the respondent-accused was severed from the other co-accused owing to his absconding and he was traced back in 2015 and was being separately tried thereafter and the NIA had filed a long list of witnesses that were left to be examined with reference to the said accused therefore this court was of the view of unlikelihood of completion of trial in near future. However, in the present case the trial is already under way and 22 witnesses including the protected witnesses have been examined. As already discussed, the material available on record indicates the involvement of the appellant in furtherance of terrorist activities backed by members of banned terrorist organization involving exchange of large 5 quantum of money through different channels which needs to be deciphered and therefore in such a scenario if the appellant is released on bail there is every likelihood that he will influence the key witnesses of the case which might hamper the process of justice. Therefore, mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail. Hence, the aforesaid argument on the behalf the appellant cannot be accepted.” 11. In the said case, one of the contentions of the accused was of the incarceration in custody and reliance was placed upon the case of “Union of India Vs. K. A. Najeeb” reported in (2021) 3 SCC 713. In “Union of India Vs. K. A. Najeeb” (supra), it was held as follows: “17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial. 18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent’s prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant’s right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent’s rights guaranteed under Part III of our Constitution have been well protected. 19. Yet another reason which persuades us to enlarge the respondent on bail is that Section 43-D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS 6 Act. Unlike the NDPS Act where the competent court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under UAPA. Instead, Section 43-D(5) of the UAPA merely provides another possible ground for the competent court to refuse bail, in addition to the well-settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion, etc.” 12. Apart from the custody of the appellant which is almost 6 years, the other feature of his case is absence of any direct evidence in the indiscriminate firing which led to the death of four persons including the sitting MLA – Ramesh Singh Munda. The absence of the appellant at the time of the incident and his re-surfacing at the place of occurrence after the incident have been the beacon for the investigating agency to array him as an accused in the case and as rightly pointed out by Mr. Sinha, there is no corroborative evidence which would indicate about meeting of minds or active conspiracy involving the appellant and the other accused persons. Though, it is a fact that the approver has stated about the angle of conspiracy against the appellant, but in absence of any other material substantiating such allegations the prima-facie case as envisaged under Section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967 which puts an embargo on grant of bail to an accused is obliterated. In such circumstances, therefore, the judgment rendered in the case of “Gurwinder Singh Vs. State of Punjab & Another” (supra) shall not be applicable in the facts and circumstances of the present case and as against the appellant. 13. We therefore, on the basis of the discussions made hereinabove set aside the order dated 16.01.2024 passed in Special (NIA) Case No. 1 of 2017 corresponding to R.C. Case No. 11/2017/NIA/DLI arising out of Bundu P. S. Case No. 65 of 2008 by the learned A.J.C. XVI cum Special Judge, NIA, Ranchi and direct that the appellant be released on bail on such conditions which shall be imposed by the learned trial court. 14. It is made clear that the learned trial court shall not be influenced, while concluding the trial, of any of the observations made 7 by us in this order, as such observation/finding is restricted only for the purpose of grant of bail to the appellant. 15. This appeal is allowed. (Rongon Mukhopadhyay, J.) (Deepak Roshan, J.) R. Shekhar Cp 3 8
Arguments
appellant and Mr. Amit Kumar Das, learned Special P.P. appearing for the NIA. 2. This appeal is directed against the order dated 16.01.2024 passed in Special (NIA) Case No. 1 of 2017 corresponding to R.C. Case No. 11/2017/NIA/DLI arising out of Bundu P. S. Case No. 65 of 2008 by the learned A.J.C. XVI cum Special Judge, NIA, Ranchi whereby and whereunder the prayer for bail of the appellant has been rejected. 3. The prosecution case in brief is that on 09.07.2008 at about 12:00 hours on being asked by Ramesh Singh Munda, the driver of Ramesh Singh Munda and his bodyguard and house-guard had left in a Tavera car from his residence and reached S. S. High School, Bundu at around 12:15 hours. It has been stated that Ramesh Singh Munda who was the sitting MLA had distributed the prizes to the students as well as the teachers and as soon as he was to conclude his speech at around 13:45 hours, the informant had seen three naxalites carrying weapons in their hands standing 10 feet away on the right side of the car. It has been alleged that one of the Naxalites came from the front side of the car and two from the back side and moved towards the bodyguard of Ramesh Singh Munda and thereafter they started firing towards the bodyguard Shivnath Minz and house-guard Khurshid Alam. The informant remained in the Tavera car and tried to hide himself. The assailants remained there for 3 to 5 minutes and they continued firing and left the scene shouting slogans in favour of the terrorist organization. The informant had thereafter alighted from the Tavera car and saw Shivnath Minz, Khursid Alam and a boy having been shot lying on the floor motionless. The informant had further seen Ramesh Singh Munda lying inside the hall with multiple gun shot injuries. The weapons of the bodyguard Shivnath Minz and house-guard – Khurshid Alam were also missing. The appellants arrived and all the four persons were taken to RIMS, Ranchi where the doctors declared them brought dead. Based on the aforesaid allegations, Bundu P. S. Case No. 65 of 2008 was instituted for the offences punishable under Sections 302/379/120/34 I.P.C., 27 of the Arms Act and Section 17 of the Criminal Law Amendment Act. Charge-sheet was submitted against some of the accused persons while investigation continued against Kundan Pahan and unknown others. Subsequently, charge-sheets were filed against several accused persons including Kundan Pahan. Sections 18, 20 & 38 of the Unlawful Activities (Prevention) Act, 1967 were subsequently added by the Criminal Investigation Department, Jharkhand, Ranchi. The Central Government having regard to the gravity of the offence in exercise of the powers conferred under Sub-section (5) of Section 6 read with Section 8 of the National Investigation Agency Act, 2008, suo-motu directed the National Investigation Agency to take up the investigation of the case vide Ministry of Home Affairs, Government of India Order no. F. No. 11011/24/2017-IS.IV dated 28.06.2017 and consequently the FIR was re-registered as RC-11/2017/NIA/DLI dated 30.06.2017. On completion of the investigation, 3rd supplementary charge-sheet was submitted by the NIA against the appellant and several other accused persons. 4. It has been submitted by Mr. Indrajit Sinha, learned counsel appearing for the appellant that the only allegation against the appellant is of conspiring with Gopal Krishna Patar @ Raja Peter who has been arrayed as A-17 in the supplementary charge-sheet as it has been said 2 that immediately prior to the incident, the appellant had left the place of occurrence and had appeared several minutes after the incident had taken place. Mr. Sinha has submitted that the other aspects of the allegation is not of firing on the assailants by the appellant in spite of being provided with a carbine machine gun with sufficient ammunition. Mr. Sinha has submitted that the meeting of minds in order to prove conspiracy against the appellant has not been proved. It has further been submitted that Gopal Krishna Prasad @ Raja Peter who is said to be the main conspirator has already been granted bail by this court in Cr. Appeal (DB) No. 1895 of 2023. It has been submitted that the investigating agency has failed to cement the angle of conspiracy as alleged against the appellant as there is no CDR which would indicate that the appellant was in constant touch with the other accused persons in order to execute the murder. Mr. Sinha has submitted that merely leaving the place prior to the incident and arriving several minutes after the incident which according to the investigating agency indicate about the information supplied to the terrorist organization regarding the movement of Ramesh Singh Munda, the deceased MLA is erroneous and absurd as the movement of the MLA who is the local representative of the people could have been known by anyone. Learned counsel further submits that the appellant is in custody for about 6 years without there being any substantive evidence against him. 5. Mr. A. K. Das, learned Special P. P. for the NIA has opposed the prayer for bail of the appellant while submitting that the appellant was one of the main persons who had entered into a criminal conspiracy with Gopal Krishna Patar @ Raja Peter and since the appellant was amongst the close confidants of the deceased MLA, it was the appellant who had supplied the information about the movement of the MLA to the terrorist organization. Mr. Das has also referred to the paragraph 17.6 of the 3rd supplementary charge-sheet while submitting that Gopal Krishna Patar had in course of conspiracy met with other accused persons and an amount of Rs. 3,00,00,000/- was given to Kundan Pahan (A-17) along with the contact number of the appellant with an assurance that the appellant will provide the information about the movement of 3 the MLA. It has been submitted that it is too much of a co-incidence that the appellant had left the place of occurrence which is minutes before firing was resorted to and came after several minutes to the place of occurrence and it would further signify and cement the allegation of conspiracy against the appellant. The statement under Section 164 Cr.P.C. of P.W. 1 who has turned approver also indicates about the appellant passing on the information related to the movement of Ramesh Singh Munda. It has further been submitted that the prayer for bail of