Criminal Application No. 268 of 2024 · The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No. 325 of 2024 Alamgir Ansari, aged about 28 years, son of Asghar Ansari @ Asgar Sekh, resident of Gudri Tola Bandhdih, P.O.- Bandhdih, P.S.- Ichagarh, District Seraikela Kharsawan (Jharkhand) Versus ..... Appellant Union of India through National Investigating Agency --------- ..... Respondent CORAM: HON'BLE THE ACTING CHIEF JUSTICE For the Appellant HON'BLE MR. JUSTICE ARUN KUMAR RAI --------- : Mr. Sahil, Advocate Mr. Saurabh Narayan, Advocate : Mr. Amit Kr. Das, Spl. P.P.-NIA --------- For the Resp.-NIA 09/ Dated: 28th August 2024 The instant appeal preferred under Section 21 (4) of the National Investigation Agency Act, 2008, is directed against the order dated 01.03.2024 passed by the learned Special Judge, NIA, Ranchi in Misc. Criminal Application No. 268 of 2024 whereby and whereunder the prayer for regular bail of the appellant in connection with Special N.I.A. Case No. 04 of 2020 arising out Tiruldih P.S. Case No. 16 of 2019, registered under Sections 147/ 148/ 149/ 379/ 302/ 353/ 323/ 324/ 326/ 435 of the Indian Penal Code, Section 27 of Arms Act, Section 17 of CLA Act and Section 10 and 13 of the UA(P) Act, has been rejected. Factual Matrix: 2. The brief facts of the case, as per the prosecution version, which required to be enumerated reads hereunder as: The prosecution story is based on the self-statement of the informant S.I. Dayanand Ram of Tiruldih P.S. As per the informant on 14.06.2019, some police personnel were on patrolling duty and they went to weekly market at Kukru. It is further stated by the informant that at about 5.45 p.m. the driver of police vehicle, namely, Sukhlal Kudada has informed by his mobile phone bearing No. 8292210986 to Munshi Bobby Jha on his mobile no.7296045770 that one-hour earlier Maoist terrorists had killed the police personnel by assaulting them with Bhujali and looted their arms and ammunitions and other articles. Accordingly, this fact has been entered into the station diary numbered as 14/19 dated 14.06.2019 and the informant has informed the said information to his senior officials. After sometimes, the police force came from Headquarters as also from many other police stations and thereafter the informant along with force went to the place of occurrence and found that the dead body of police personnel’s lying at the place of occurrence. Further he came to know that about 15 to 17 Maoist terrorists came on five to six Motorcycles and after killing the police personnel has left the place after shouting "Zindabad" and looted all the arms and ammunitions and other articles from the police personnel. The details of the arms/ammunitions and looted articles have also been mentioned in
Facts
the FIR. The Maoists also charred sumo vehicle of police which was parked beside the road. 3. On the basis of statement of informant, a case being Tiruldih P.S. Case No. 16 of 2019 was registered against unknown miscreants under Sections 147/ 148/ 149/ 379/ 302/ 353/ 323/ 324 and 435 of the Indian Penal Code, Section 27 of Arms Act, Section 17 of C.L.A. Act and Section 10/13 of Unlawful Activity Prevention Act. 4. The ministry of Home Affairs (MHA) Government of India in view of the gravity of the offence and its cross border and international ramification issued orders in exercise of the powers vested under Section 6(5) read with section 8 of the NIA Act 2008, directed the NIA to take up the investigation of the aforesaid case. 5. On the direction of the Ministry of Home Affairs, NIA vide CTCR Division Order No. 11011/69/2020/NIA dated 07.12.2020 re-registered the case as Special (NIA) Case No. 04/2020 dated 09.12.2020 (NIA Case RC 39/2020NIA/DLI) arises out of Tiruldih P.S. Case No. 16/2019 for the offence under Sections 147/ 148/ 149/ 302/ 353/ 379 and 435 of IPC, Section 27 of Arms Act, 1959, Section 17 of the Criminal Law Amendment (Prevention) Act, 1908 and Section 13 of Unlawful Activities (Prevention) Act, 1967. 2 6. From record it appears that the appellant has been taken into custody, as such, prayer for bail was made before the Special Judge, NIA, Ranchi but the same has been rejected vide order dated 01.03.2024 in Misc. Criminal Application No. 268 of 2024 (Special N.I.A. Case No. 04 of 2020) against which the present appeal has been filed. 7. It appears from the factual aspect that the case initially was instituted as Teruldih P.S. Case no. 16 of 2019, in which, the chargesheet was submitted but subsequent thereto the investigation of the case has been handed over to the NIA in view of the power exercise under Section 6 (5) of NIA Act, 2008. 8. The appellant has been taken into custody for the purpose of further investigation in the matter of the NIA and accordingly, investigation was completed and chargesheet has also been submitted. 9. The appellant has made prayer for grant of bail which was rejected by the learned Special Judge, NIA, Ranchi and thereafter, against the said order the appellant had filed appeal being Cr. Appeal (DB) No. 1226 of 2022 before this Court but the Co-ordinate Bench of this Court has rejected the prayer for bail of the appellant vide order dated 17.01.2023. 10. The appellant thereafter has again renewed the prayer for regular bail before the learned Special Judge but the same has been rejected vide order dated 01.03.2024.
Legal Reasoning
“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 the Narcotic Drugs and Psychotropic as TADA, MCOCA and 7 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 11 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….” 32. It is, thus, evident from the proposition laid down by the Hon'ble Apex Court in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali (Supra) that it is the bounden duty of the Court to apply its mind to examine the entire materials on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not. 33. Further, it is settled proposition of law that at the stage of granting or non-granting of the bail, the Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise and the elaborate examination or dissection of the evidence is not required to be done at this stage. 34. Further, the Hon'ble Apex Court by setting out propounding the law in the same case of National Investigation Agency v. Zahoor Ahmad Shah Watali (supra), has observed that the elaborate examination or dissection of the evidence is not required to be done at this stage and the Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in 8 the commission of the stated offence or otherwise. For ready reference paragraph 24 and 25 of the aforesaid judgment is being quoted herein under: “24. A priori, the exercise to be undertaken by the Court at this stage— of giving reasons for grant or non-grant of bail—is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise. 25. From the analysis of the impugned judgment, it appears to us that the High Court has ventured into an area of examining the merits and demerits of the evidence. For, it noted that the evidence in the form of statements of witnesses under Section 161 are not admissible. Further, the documents pressed into service by the investigating agency were not admissible in evidence. It also noted that it was unlikely that the document had been recovered the residence of Ghulam Mohammad Bhatt till 16-8-2017 (para 61 of the impugned judgment). Similarly, the approach of the High Court in completely discarding the statements of the protected witnesses recorded under Section 164 CrPC, on the specious ground that the same was kept in a sealed cover and was not even perused by the Designated Court and also because reference to such statements having been recorded was not found in the charge-sheet already filed against the respondent is, in our opinion, in complete disregard of the duty of the Court to record its opinion that the accusation made against the accused concerned is prima facie true or otherwise. That opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the contents of the case diary and including the charge-sheet (report under Section 173 Cr.P.C.) and other material gathered by the investigating agency during investigation.” from 35. It is, thus, evident that the exercise to be undertaken by the court at this stage of granting bail of giving reasons for grant or non-grant of bail that is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. Rather, the Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise. 36. Further it is the duty of the Court to record its opinion that the accusation made against the accused concerned is prima facie true or otherwise and such opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the contents of the case diary and including the charge-sheet (report under 9 Section 173 CrPC) and other material gathered by the investigating agency during investigation. 37. This Court, on the basis of the aforesaid position of law and the factual aspect as has been gathered against the appellant is proceeding to examine as to whether the accusation against the appellants is prima facie true as compared to the opinion of accused not guilty by taking into consideration the material collected in course of investigation. 38. It is evident from the imputation as recorded in para 17.36.5 of the chargesheet in which role of the present appellant Alamgir Ansari (A-5) in the instant crime has been disclosed by NIA. It appears that appellant and Tabarak Ansari (A-9) both are own brothers and was member of CPI Maoist. 39. He used to provide logistic support alongwith A-9 to the member of CPI Maoist. On 13.6.2019, appellant has attended meeting conducted by A-19 and A-17 for terrorist attack on police patrolling party at Kukruhaat Bazar. Thereafter, appellant went to Kukruhaat Bazar alongwith co-accused Dasta members of CPI Maoist and was involved in the killing of police personnel and looting of their arms and ammunitions. 40. After commission of instant crime the appellant knowingly assisted Tabarak Ansari (A-9) in repairing of the bike and disposing of four motorcycles used by co-accused cadres of CPI Maoist for commission of the instant crime and by doing that the appellant became a member of proscribed organization and was part of the meeting in which conspiracy was hatched among co-accused and he assisted co- accused to assemble with deadly weapon at Kukruhaat to carry out terrorist attack on police patrolling party which resulted in the killing of five police personnel and subsequently snatching/ looting of government issued arms and ammunitions wireless set and setting the vehicle on fire. 41. It appears from the record that the evidence against appellant Alamgir Ansari (A-5) is fully substantiated by the statement of prosecution witnesses. Further, the appellant has been chargesheeted in 10 this case under section 121, 121A, 396 of IPC, and Section 16, 18, 20, 38, 39 of UA(P) Act. 42. Thus, from aforesaid evidences prima-facie the involvement of the present appellant in the alleged commission of crime cannot be denied. The involvement of the appellant was direct in the alleged commission of crime which was fully substantiated by the statement of the independent protected witnesses who were the witness of the alleged crime. 43. The requirement as stipulated under Section 43 D (5) of the UA(P) Act, 1967 in the matter of grant of regular bail that while considering the ground of delay under Section 43 D (5) of the Act, 1967 it is the bounden duty of the Court to apply its mind to examine the entire materials on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not. 44. Further, since the learned counsel for the appellant has relied upon the judgment of K.A. Najeeb (supra), so as to interfere with the impugned order, therefore, this Court deems it fit and proper to going through the judgment as referred by learned counsel for the appellant. 45. The Appellant's counsel has relied upon the case of K.A. Najeeb (supra) to back its contention that the appellant has been in jail in the instant case since 30th June 2022 which is contrary to law laid down in the aforesaid case. While this argument may appear compelling at first glance, it lacks depth and substance. 46. In K.A. Najeeb's (supra), the Hon’ble Apex 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 the Hon’ble Apex Court while considering the fact that since the respondent-accused had already served portion of the maximum imprisonment i.e., more than five years, hence not interfered in order granting bail. 47. 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 11 the NIA had filed a long list of witnesses that were left to be examined with reference to the said accused therefore the hon’ble Apex Court in the view of unlikelihood of completion of trial in near future not interfered in the order granting bail. However, the instant case is different on fact and circumstances as such judgment as referred by the learned counsel will not be applicable herein. 48. Further it is settled proposition of law that the applicability of the judgment depends upon the facts and circumstances of each and every case and there cannot be any universal application of the judgment rather each judgment is to be decided on the basis of fact of each case. Reference in this regard may be taken from the judgment as rendered by the Hon’ble Supreme Court in Dr. Subramanian Swamy vs. State of Tamil Nadu & Ors. reported in (2014) 5 SCC 75 for ready reference the relevant paragraph is being quoted herein under : “47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. “The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.” 49. As such this Court is of the view by going through imputation as has found in course of investigation that the complicity of the appellant in the alleged crime cannot be denied. 50. It is thus evident that this Court on the aforesaid allegation cannot come to the conclusion that whatever has come in course of investigation against the appellant is said to be prima facie untrue rather this Court is of the view that the allegations are sufficient to come to the conclusion that the allegation is prima facie true. 51. The factual aspect of the present case is that the appellant is in custody since 30th June 2022 which is although for last 2 years and 3 months. However, so far as the status of trial is concerned, out of 138 witnesses, 10 witnesses have already been examined. 52. It has been submitted by learned counsel appearing for the NIA that the trial is to be expedited now since the learned Special Judge is only looking after the special cases including NIA. 12 53. Further, the protected witnesses are to be examined and as has been submitted on behalf of the learned counsel for the NIA that the witnesses are examined and efforts will be taken for the examination of the witnesses on day-to-day basis. 54. Therefore, this Court is of the view that it will not to be just and proper to interfere with the impugned order. This Court is also of the view while coming to the aforesaid conclusion that as per the chargesheet the specific attributability has been casted upon the petitioner regarding the commission of offence said to attract the criminal offence under UA(P) Act. 55. The Co-ordinate Division Bench has already taken into consideration the stipulation so made under Section 43-D (5) of the NIA Act wherein it has been stipulated that while considering the bail, if case has been found to be prima facie untrue then only the consideration the bail is to be given otherwise not. The co-ordinate Division Bench since have taken into consideration the aforesaid aspect of the matter and only consideration which has been sought by the appellant in this appeal is the period of custody and the slow progress in the trial, upon which the learned counsel for the NIA has submitted that they are trying to expedite the trial, hence, this Court is of the view that impugned order need not to be interfered with. 56. This Court taking into consideration the aforesaid facts is of the view that in the circumstances as referred hereinabove and taking into consideration the allegation leveled against the appellant, the impugned order needs no interference by this Court. 57. Accordingly, the instant appeal stands dismissed. 58. Pending I.A, if any stands closed. (Sujit Narayan Prasad, A.C.J.) (Arun Kumar Rai, J.) Pramanik/AFR 13
Arguments
Submission of learned counsel for the appellant 11. The learned counsel for the appellant has assailed the impugned order, by which the prayer for bail of the appellant has been rejected, on the following grounds: (i) There is no specific attributability of the appellant in commission of offence said to be committed under the Schedule offence as per the allegation leveled in the FIR and nothing has come in course of investigation against the appellant in the charge-sheet also. (ii) The appellant is in custody since 30th June 2022 and as yet only 7 witnesses have been examined out of 138 witnesses, as such there is slow progress of the investigation, therefore 3 ground has been taken about the period of custody, as also there is no likelihood of trial to be concluded at an early date and hence by taking into consideration the said fact, submission has been made that the impugned order may be interfered with. To buttress this limb of argument the learned counsel for the appellant put his reliance upon the judgment as rendered by the Hon’ble Apex Court in the case of Union of India Vs. K.A Nazeeb ((2021) 3 SCC 713). 12. Learned counsel for the appellant based upon the aforesaid grounds has submitted that the learned court has not taken the note of the aforesaid facts, therefore, it is a fit case where the impugned order may be interfered with. Submission of learned counsel for the respondent 13. Per contra, learned counsel for the NIA has submitted by referring to the counter affidavit wherein it has been submitted by showing the attributability of the appellant said to be the direct involvement in the terror act. 14. It has been contended that the complicity of the appellant has been taken into consideration by this Court while considering the prayer for regular bail in Cr. Appeal (DB) No.1226 of 2022 but the same was rejected by coming to the conclusion of not fulfilling the statutory parameters as provided under Section 43-D (5) of the UAPA Act. 15. It has further been contended that prayer for regular bail of the other accused person namely Avinash Kumar @ Chunnu Sharma (Cr. Appeal (DB) No.1096/2023) has also been rejected. 16. Further submission has been made that so far as argument advanced on behalf of the appellant that there is slow progress in the trial and out of 138 witnesses only 7 witnesses have been examined, as of now 10 witnesses have already been examined and trial to be expedited for the purpose of concluding the trial as early as possible. 17. Learned counsel for the NIA has further submitted that since the trial is at progress and so many protected witnesses are there, hence, 4 there is likelihood of tampering with the evidence or even committing in the way of the examination of the witnesses, since, not only the appellant rather other accused persons are there who have been found deeply involved in the terrorist activity. 18. Learned counsel on the basis of aforesaid ground has submitted that if the learned Special Judge has rejected the prayer for regular bail on consideration of the aforesaid fact hence the same may not be interfered with. Analysis 19. We have heard learned counsel for the parties, perused the documents available on record and the finding recorded by learned trial Court as recorded in the impugned order as also contents of counter affidavit wherein copy of charge-sheet has also been appended. 20. Before entering into the propriety of the impugned order it requires to refer herein the admitted fact that earlier to the present appeal, an appeal had been preferred for consideration of prayer for regular bail before this Hon’ble Court being Cr. Appeal (DB) No. 1226 of 2022, the appeal was rejected by coming to the conclusion that the parameters of Section 43-D (5) of the UAPA Act have not been fulfilled. 21. The appellant has renewed prayer for regular bail on the ground of custody since he is in custody since 30th June 2022 and out of 138 witnesses, as per the appellant, 7 witnesses have been examined. 22. It is evident that the appellant is not questioning the propriety of the order passed by learned Special Judge on his alleged complicity for the criteria of Section 43-D (5) of the UAPA Act rather the emphasis of argument is the period of custody and the issue of slow progress in the trial. 23. This Court, before proceeding to consider the legality and propriety of the impugned order, and rival submission of learned counsel for the parties, deems it fit and proper to first refer the some settled proposition of law and the relevant provisions of Unlawful 5 Activities (Prevention) Act, 1967(herein referred as Act 1967) which is required to be considered herein. 24. The main objective of the Act 1967 is to make powers available for dealing with activities directed against the integrity and sovereignty of India. As per Preamble, Act 1967 has been enacted to provide for the more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected therewith. Therefore, the aim and object of enactment of UAPA is also to provide for more effective prevention of certain unlawful activities. 25. To achieve the said object and purpose of effective prevention of certain unlawful activities, the Parliament in its wisdom has provided that where an association is declared unlawful by a notification issued under Section 3, a person, who is and continues to be a member of such association shall be punishable with imprisonment for a term which may extend to 2 years, and shall also be liable to fine. 26. Clause (m) of Section 2 of the Act, 1967 defines “terrorist organization”. It is defined as an organization listed in the First Schedule. CPI (Maoist) has been listed at Item no. 34 in the First Schedule. Chapters III onwards of the 1967 Act incorporate various offences. Chapter IV has the title “punishment for terrorist act”. Clause (k) of Section 2 of the Act, 1967 provides that “terrorist act” has the meaning assigned to it under Section 15 and the terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule. 27. Further section 10(a)(i) of Act 1967 provides that where an association is declared unlawful by a notification issued under Section 3 which has become effective under sub-section (3) of that Section, a person, who is continues to be a member of such association shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine therefore, so long as Section 10(a)(i) of the Act, 1967 stands a person who is or continues to be a member of such association shall be liable to be punished. 6 28. As per mandate of section 13 of the Act 1967 who takes part in or commits, or advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine. 29. At this juncture, it will be purposeful to discuss the core of Section 43(d)(5) of the Act 1967 which mandates that the person shall not be released on bail, if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true . 30. The requirement as stipulated under Section 43D(5) of the UA(P) Act, 1967 in the matter of grant of regular bail fell for consideration before the Hon'ble Apex Court in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1] wherein at paragraph 23 it has been held by interpreting the expression “prima facie true” as stipulated under Section 43D(5) of the Act, 1967 which would mean that the materials/evidence collated by the investigation 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. 31. It has further been observed that 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. 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. For ready reference, paragraph 23 of the aforesaid judgment is required to be quoted herein which reads hereunder as: