Pradip Ganjhu @ Mandal @ Prem, aged of 29 years, Son of late Damodar v. The National Investigation Agency, New Delhi, NIA Building, Opposite Dyal Singh College Road, CGO
Case Details
Cr. Appeal (DB) No.781 of 2023 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (DB) No.781 of 2023 ----- Pradip Ganjhu @ Mandal @ Prem, aged of 29 years, Son of late Damodar Ganjhu, R/O- Village – Basiya, P.O. Balumath, P.S. Balumath, District Latehar. .… … Appellant Versus The National Investigation Agency, New Delhi, NIA Building, Opposite Dyal Singh College Road, CGO Complex, Pragati Vihar, New Delhi, PIN- 1100O3 .… … Respondent ------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI ----- For the Appellant : Mr. Birendra Burman, Advocate For the Respondent : Mr. Amit Kumar Das, Advocate Mr. Saurav Kumar, Advocate Order No.06: Dated 15th February, 2024 ------ Per Sujit Narayan Prasad, J. Prayer 1. The instant appeal preferred under Section 21(4) of the National Investigation Agency Act, 2008 is directed against the order dated 22.02.2023 passed by learned Additional Judicial Commissioner-XVI-cum-Special Judge, NIA, Ranchi whereby and whereunder the prayer for bail in connection with Special (NIA) no. RC-01/2021arising out of Balumath P.S. Case no.234 of 2020 registered under Sections 147, 148, 149, 353, 504, 307, 427, 435, 386, 387, 120B, 212 of the Indian Penal Code Section 25(1)(b), 26, 27 and 35 of the Arms Act, Section 3 & 4 of Explosive Substance Act, Section 10, 13, 16(1)(b), 20 and 23 of UA(P) Act and Section 17 of CLA Act, 1908, has been rejected. Cr. Appeal (DB) No.781 of 2023 2 Facts 2. The brief facts of the case, as per the prosecution version, which required to be enumerated read hereunder as:- The prosecution case is based on the information received by Balumath police station that at about 19 hours on 18.12.2020, some unknown persons were burning vehicles by firing indiscriminately near check post no.1 near Tetariakhand colliery. Assailants fired on the police party that had rushed to the spot. Accused persons had burnt four trucks one motorcycle and injured four civilians. The remnants of the burnt vehicles, fragments of a cane bomb with wire, a white colour empty gallon of approx. 02 liters, spent cartridges and three hand written pamphlets containing threats to the transporters and coal companies, involved in the mining area signed by one Pradip Ganjhu (A-3) were found from the spot. Upon further inquiry it was revealed that gangster Sujit Sinha(A-1) and Aman Sahu @Aman Sao(A-2) had conspired with accused Pradeep Ganjhu((appellant herein) and his associates namely Santosh Ganjhu, Bihari Ganjhu, Sakendra Ganjhu, Pramod Ganjhu and others to collect extortion from CCL transporters, contractors, DO holders and disruption of legitimate works. Accordingly, Balumath PS case no 234/2020 dated 19.12.2020 was registered u/s 147, 148, 149, 353, 504, 506, 307, 427, 435, 386, 387 and 120B of IPC section 27 of Arms Act, Section 3/4 of the Explosive Substance Act, against Sujit Sinha, Aman Cr. Appeal (DB) No.781 of 2023 3 Sahu @ Aman Sao, Pradeep Ganjhu, Santosh Ganjhu, Bihari Ganjhu, Pramod Ganjhu, and some other unknown accused persons. 3. 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. 4. On the direction of the Ministry of Home Affairs, NIA re-registered case no 01/2021/NIA-RNC dated 04.03.2021 under section 147, 148, 149, 353, 504, 506, 307, 427, 435, 386, 387, 120B, 121A, 216 of IPC Section 25(1)(b), 26, 27 and 35 of Arms Act section 3 & 4 of Explosive Substance Act section 17 CLA Act and section 10, 13, 16(1), (b), 20 and 23 UA(P) Act. 5. From record it appears that the appellant has been taken into custody on 07.02.2021, as such, prayer for bail was made before the Additional Judicial Commissioner-XVI- cum-Special Judge, NIA, Ranchi but the same has been rejected vide order dated 22.02. 2023 against which the present appeal has been filed. Submission of the learned counsel for the appellant 6. 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: Cr. Appeal (DB) No.781 of 2023 4 (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
Facts
FIR and nothing has come in course of investigation against the appellant in the charge-sheet also. (ii) In the FIR it is alleged that three hand written pamphlets issuing threat to the transporters and Coal companies involved in mining etc, were found at the spot was written by co-accused Ajay Turi and not by the appellant which itself evident from para 17.11 and 17.28 of the charge sheet. (iii) The recovery of AK47 Rifle was not made in the possession of the appellant which is evident from seizure list made for appellant vide D-37 and confessional statement of appellant vide D-149/115. (iv) It is alleged that appellant was arrested along with a country made pistol along with some live cartridges vide D-37, however houses of some other co-accused persons namely Wasim Ansari, Jasim Ansari, Majibul Ansari and Jahiruddin Ansari were raided by which recovery of country made pistol and cartridges were made but all the aforesaid persons are enjoying bail granted by this Hon’ble Court and more or less it can be said that allegations are similar or identical to the appellant. Cr. Appeal (DB) No.781 of 2023 5 (v) It has been submitted that that from perusal of charge-sheet, it would be evident that save and except the confessional statement of co-accused persons nothing has come so as to connect the complicity of the appellant in the alleged commission of crime or even involvement in conspiracy said to attract the offence under the Schedule offences. (vi) 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]. 7. The 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, the present appeal is fit to be allowed.
Legal Reasoning
prima facie true. It has further been observed that it is only if the test for rejection of bail is not satisfied - that the Courts would proceed to decide the bail application in accordance with the ‘tripod test’ (flight risk, influencing witnesses, tampering with evidence). 34. For ready reference following paragraphs of the aforesaid Judgment are being quoted herein under: “27. A bare reading of Sub-section (5) of Section 43D shows that apart from the fact that Sub- section (5) bars a Special Court from releasing an accused on bail without affording the Public Prosecutor an opportunity of being heard on the application seeking release of an accused on bail, the proviso to Sub-section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail. It lays down that if the Court, ‘on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure’, is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the UAP Act is prima facie true, such accused person shall not be released on Cr. Appeal (DB) No.781 of 2023 19 bail or on his own bond. It is interesting to note that there is no analogous provision traceable in any other statute to the one found in Section 43D(5) of the UAP Act. In that sense, the language of bail limitation adopted therein remains unique to the UAP Act. 28. The conventional idea in bail jurisprudence vis- (cid:224)-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - ‘bail is the rule, jail is the exception’ - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act. The ‘exercise’ of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D (5)- ‘shall not be released’ in contrast with the form of the words as found in Section 437(1) CrPC - ‘may be released’ - suggests the intention of the Legislature to make bail, the exception and jail, the rule. 29. The courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail. The ‘justifications’ must be searched from the case diary and the final report submitted before the Special Court. The legislature has prescribed a low, ‘prima facie’ standard, as a measure of the degree of satisfaction, to be recorded by Court when scrutinising the justifications [materials on record]. This standard can be contrasted with the standard of ‘strong suspicion’, which is used by Courts while hearing applications for ‘discharge--” 35. In this background, the test for rejection of bail is quite plain. Bail must be rejected as a ‘rule’, if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are Cr. Appeal (DB) No.781 of 2023 20 reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied that the Courts would proceed to decide the bail application in accordance with the ‘tripod test’ (flight risk, influencing witnesses, tampering with evidence). This position is made clear by Sub-section (6) of Section 43D, which lays down that the restrictions, on granting of bail specified in Sub-section (5), are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail. 36. The Hon’ble Apex Court in the aforesaid judgment after textual reading of Section 43 D(5) UAP Act, has formulated the guideline which was summarized in the form of a twin-prong test. For ready reference the relevant paragraph is being quoted herein under: “31. On a textual reading of Section 43 D(5) UAP Act, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarised in the form of a twin-prong test: 1) Whether the test for rejection of the bail is satisfied? 1.1 Examine if, prima facie, the alleged ‘accusations’ make out an offence under Chapter IV or VI of the UAP Act 1.2 Such examination should be limited to case diary and final report submitted under Section 173 CrPC; 2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC (‘tripod test’)?” Cr. Appeal (DB) No.781 of 2023 21 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. From perusal of record, it is evident that the extract of the charge-sheet dated 05.08.2021 is part of the counter affidavit as appended as Annexure-A. It appears from paragraph 17.17 it has come on record that accused Pradip Ganjhu @ Premji @ Mandal Ji joined the Tritiya Prastuti Committee (TPC) in the year 2014-15 which has been declared unlawful Association under the Criminal Law Amendment Act 1908. In 2019 he joined people liberation Front of India (PLFI), another unlawful Association under CLA Act 1908 and operated under Krishna Yadav, Sub- Zonal Commander. At this time Dinesh Gope nominated him area Commander of Balumath area. During his working with Krishna Yadav, he was introduced with Aman Sahu (A-2). The group was engaged in collection of extortion by firing and terrorizing. Thereafter, Pradip Ganjhu (A-3) formed his own group with Santosh Ganjhu (A-4), Bihari Ganjhu (A-5), Sakendra Ganghu (A-6) and Pramod Ganjhu (A-7) in March, 2020. 39. It has further been revealed as has been referred Cr. Appeal (DB) No.781 of 2023 22 under paragraph 17.18 of chargesheet that during the period July to October 2020, Pradip Ganjhu met with accused Shahrukh Ansari (A-21), a cadre of FLFI of Ramgarh area and Shahrukh Ansari proposed him to work also for the terrorist gang of "Sujit Sinha (A-1) and Aman Sahu (A 2). Thereafter, he joined accused Shahrukh Ansari and contacted Aman Sahu (A-2) through Telegram app. Aman Sahu directed them to carry out terror incidents for the purpose of extortion in the name of “Sujit Sinha and Aman Sahu gang”. For this, Pradip Ganjiu (A-3) demanded arms and ammunition from Aman Sahu (A-2). On the directing of Aman Sahu (A-2), Pradip Gan A-3) directed Santosh Ganjiu (A-4) for collecting Arms and ammunition from accused Shahrukh Ansari (A-21) at Ranchi. 40. The investigation further revealed, as has been referred at paragraph 17.19, wherein it is mentioned that after collecting the AK 47 and other weapons, Pradip Ganjhu (A-3) with his group carried out firing in the siding of Purnadih and dropped threatening pamphlets and the group was going to carry out terrorist attack at Bukru siding, when they were intercepted by the Balumath Police. In this incident one AK-47 Rifle, other Arms and Ammunition and Rs. 107,000/- of extortion money were seized by Balumath Police and his Associates Manoj Turi and Jitender Tana Bhagat were arrested. Cr. Appeal (DB) No.781 of 2023 23 41. It is evident from paragraph 17.20 it is evident that after the said incident of seizure of AK-47 Rifle etc and arrest of two Gang members by Balumath Police, Sujit Sinha (A-1) and Aman Sabu (A-2) in collaborations with Shakrukh, Pradip Ganjhu and others planned to carry out terror incident at Tetariyakhad Colliery. They were directed to attack on Truck owners, D.O., Holders, transporters and lifters to spread the fear in their minds so that they could be extorted and on the direction of Pradip Ganjhu (A-3) and Babulal Turi (A-8), Ajay Turi (A-9) wrote threatening pamphlets. 42. It is further evident from paragraph 17.21 and 17.22 that while having the dinner on 17.12.2020, they were discussing a probable terrorist attack at Terariakhand colliery and about 6.30 PM, accused Pankaj Karmali @ Khetiya and Ajay Turi R/o Bundu carried out recce at Ttetariakhad. At about 7.PM Pradip Ganjhu (A-3) Santosh Ganjhu (A-4) BiharI Ganjhu (A-5), Sakendra Ganjhu(A-6), Pramod Ganjhu (A-7) Babulal Turi (A-8), Ssharukh Ansari (A-21), Saif Ansari @ Bablu, Ajay Turi S/o. Govind Turi, Pankaj Karmali @ Khetiya and Arjun Pahariya reached Tetariakhad and carried out indiscriminate firing, in which 04 civilians were injured. They also burned down 04 trucks, 01 motorcycle and they blasted cane bomb beneath a Weigh Bridge and beneath a truck. During the incident, they also dropped threatening pamphlets in the name of Cr. Appeal (DB) No.781 of 2023 24 Sujit Sinha (A-1) and Pradip Cunjhu (A-3). On getting information, Balumath Police also reached at Tetariyakhad Colliery and fired on them but they escaped from incident place firing at the police party. 43. It is evident from paragraph 17.28 that during the Tetariyakhad firing incident, accused dropped hand written pamphlets on behalf of accused Pradip Ganjhu in which threat was given to stakeholders for paying extortion to the Sujit Sinha and Aman Sahu to further continuing the work at Tetriyakhad. During custodial examinations accused Ajay Turi brother of Babulal Turi has disclosed that on the direction of Pradip Ganjhu and Babulal Turi he had written the seized pamphlets. 44. It is evident from the paragraph 17.29 of the charge-sheet that the protected witness’s 'A' & B' were present at Tetariyakhad colliery at the time of firing by accused Pradip Ganjhu (A-3) with other co-accused on 18 12.2020. Both witnessed the said incident. During Photo Identification proceedings in presence of independent witnesses, both identified the photograph of accused Pradip Ganjhu (A-3) by name and also identified him to be the resident of village-Pindarkom, PS-Balumath, District- Latehar. 45. Paragraph 17.17, 17.18, 17.19, 17.20, 17.21, 17.22,17.28, and 17.29 are quoted hereunder as :- Cr. Appeal (DB) No.781 of 2023 25 “17.17 During investigation it has come on record that accused Pradip Ganjhu @ Premji @ Mandal Ji and the Tritiya Prastuti Committee (TPC) in the year 2014-15 which has beer declared unlawful Association under the Criminal Law Amendment Act 1908. He operated with Rakesh Ganjhu, Sagar Ganjhu @ Dalalji sub-zonal commander and Dilkhanji Zonal Commander of TPC. In 2019 he joined people liberation Front of India (PLFI), another unlawful Association under CLA Act 1908 and operated under Krishna Yadav, Sub-Zonal Commander. He was given name as Mandalji in PLFI. He also met with Dinesh Gope, the self-styled Supreme Commander of PLFI. At this time Dinesh Gope nominated him area Commander of Balumath area. During his working with Krishna Yadav, he was introduced with Aman Sahu (A-2). The group was engaged in collection of extortion by firing and terrorizing Thereafter, Pradip Ganjhu (A-3) formed his own group with Santosh Ganjhu (A-4), Bihari Ganjhu (A-5), Sakendra Ganghu (A-6) and Pramod Ganjhu (A-7) in March, 2020. 17.18 Investigation has brought out that during the period July to October 2020, he met with accused Shahrukh Ansari (A-21), a cadre of FLFI of Ramgarh area. Shahrukh Ansari proposed him to work also for the terrorist gang of "Sujit Sinha (A-1) and Aman Sahu (A 2). Shahrukh (A-21) made him aware, in handling of Telegram app. Thereafter, he joined accused Shahrukh Ansari and contacted Aman Sahu (A-2) through Telegram app. Aman Sahu directed them to carry out terror incidents for the purpose of extortion in the name of “Sujit Sinha and Aman Sahu gang”. For this, Pradip Ganjiu (A-3) demanded arms and ammunition from Aman Sahu (A-2). On the directing of Aman Sahu (A-2), Pradip Gan A-3) directed Santosh Ganjiu (A-4) for collecting Arms and ammunition from accused Shahrukh Ansari (A-21) at Ranchi. Santosh Ganjhu (A-4) received one AK-47 and some country made pistols from Shahrukh Ansari at Ranchi and handed over to Pradip Ganjhu in Kuru Forest. After 03-04 days, Santosh Ganjliu (A-4) also received Cane Bombs from Shahrukh Ansari (A-21) at Ranchi and further handed over to Pradip Ganjhu. Cr. Appeal (DB) No.781 of 2023 26 17.19 Investigation brought out that after collecting the AK 47 and other weapons, Pradip Ganjhu (A-3) with his group carried out firing in the siding of Purnadih and dropped threatening pamphlets. After this incident, while the group was going to carry out terrorist attack at Bukru siding, when they were intercepted by the Balumath Police. In this incident one AK-47 Rifle, other Arms and Ammunition and Rs. 107,000/- of extortion money were seized by Balumath Police and his Associates Manoj Turi and Jitender Tana Bhagat were arrested. 17.20 Investigation brought out that after the said incident of seizure of AK-47 Rifle etc and arrest of two Gang members by Balumath Police, Sujit Sinha (A-1) and Aman Sabu (A-2) in collaborations with Shakrukh, Pradip Ganjhu and others planned to carry out terror incident at Tetariyakhad Colliery. They were directed to attack on Truck owners, D.O., Holders, transporters and lifters to spread the fear in their minds so that they could be extorted. To execute the plan, Pradip Gunjiku (A-3). Santosh Ganjhu (4-4) Bihari Ganghu(A-5) Sakendra Ganjhu (A-7), Pramod Ganjhu Babulal Turi (A-8) and his brother Ajay Turi, Sharukh Ansari(A-21) and others met at village-Dhoti. Here, on the direction of Pradip Ganjhu (A-3) and Babulal Turi (A-8), Ajay Turi (A-9) wrote threatening pamphlets. On 17.12.2020, they reached near Tetariyakhad Colliery and remained in Ponderkom forest. On the direction of Babulal Turi, his brother Ajay Turi along with Bihari Ganjhu (A-5) went to Mecluskigunj, District Ranchi and purchased electric wire and a battery of motorcycle. They also purchased Petrol with Galions frum Bhangia, PS Balumath, District Latehar, Jharkhand for using in the Tetariyakhad attack. 17.21 Investigation brought out that on 17.12.2020, accused Pradip Ganjhu (A-3) Babulal Turi (A-5), Ajay Tari (A-9), Santosh Ganjhu (A-4), Bihari Ganjhu (A-5) Sakendra Ganjhu (A 6), Pramod Gunjhu (A-7), Shahrukh Ansari @ Tiwari Khan and others took dinner at the house of one Laso Yadav so Bhagwat Yadav resident of Pindarkom, PS- Balumath District- Latehar. While having the dinner, they were discussing a probable terrorist attack at Terariakhand colliery. On 18.12.2020 (evening), the above Cr. Appeal (DB) No.781 of 2023 27 said members of the terrorist gang directed Ganga Yadav s/o Harinath Yadav and Sampati Yadav s/o Karamjit yadav both resident of Pinderkom PS-Balumath District- Latehar to bring snacks i.e "Samosas” Both were threatened by them not to inform about their presence, otherwise their family will be killed by the gang. They purchased snaks i.e. samosas from a shop at Pindarkom village and provided them. 17.22 Investigation brought out that on 18 12 2020 at about 6.30 PM, accused Pankaj Karmali @ Khetiya and Ajay Turi R/o Bundu carried out recce at Ttetariakhad.At about 7.PM Pradip Ganjhu (A-3) Santosh Ganjhu (A-4) BiharI Ganjhu (A-5), Sakendra Ganjhu(A-6), Pramod Ganjhu (A-7) Babulal Turi (A-8), Ssharukh Ansari (A-21), Saif Ansari @ Bablu, Ajay Turi S/o. Govind Turi, Pankaj Karmali @ Khetiya and Arjun Pahariya reached Tetariakhad and carried out indiscriminate firing, in which 04 civilians were injured. They also burned down 04 trucks, 01 motorcycle and they blasted cane bomb beneath a Weigh Bridge and beneath a truck. During the incident, they also dropped threatening pamphlets in the name of Sujit Sinha (A-1) and Pradip Cunjhu (A-3). On getting information, Balumath Police also reached at Tetariyakhad Colliery and fired on them but they escaped from incident place firing at the police party. 17.28 investigation revealed that on 18.12.2020 during the Tetarakhad firing incident, accused dropped hand written pamphlets on behalf of accused Pradip Ganjhu in which threat was given to stakeholders for paying extortion to the Sujit Sinha and Aman Sahu to further continuing the work at Tetriyakhad. During custodial examinations accused Ajay Turi brother of Babulal Turi has disclosed that on the direction of Pradip Ganjhu and Babulal Turi he had written the seized pamphlets. His hand writing specimen was obtained in presence of independent witnesses after obtaining his consent. The hand writing specimen of accused Ajay Turi and seized questioned pamphlets were forwarded to Director CFSL, Kolkata for comparison and expert opinion. The report is awaited. 17.29 During the investigation, the statements of protected witness’s 'A' & B' were recorded u/ 161 Cr.P.C in the Cr. Appeal (DB) No.781 of 2023 28 instant case. Both witnesses were present at Tetariyakhad colliery at the time of firing by accused Pradip Ganjhu (A- 3) with other co-accused on 18 12.2020. Both witnessed the said incident. During Photo Identification proceedings in presence of independent witnesses, both identified the photograph of accused Pradip Ganjhu (A-3) by name and also identified him to be the resident of village-Pindarkom, PS-Balumath, District-Latehar. They also identified the photographs of Babulal Turi (A-8), Santosh Ganjhu (A-4), Bihari Ganjhu (A-5), Sakendra Ganjhu (A-6), Pramod Ganjhu (A-7), and accused Shahrukh Ansari stating that these persons were among the group of 10 to 12 attackers who carried out firing and arson near Check Post No. 1 at Tetariyakhad colliery.” 46. It is thus evident from the imputation against the appellant, as referred in the paragraphs as quoted herein above, that it has come in the course of investigation that accused/appellant Pradip Ganjhu @ Premji @ Mandal Ji joined the Tritiya Prastuti Committee (TPC) and later on in 2019 he joined people liberation Front of India (PLFI). During his working with Krishna Yadav, he was introduced with Aman Sahu (A-2) whose group was engaged in collection of extortion by firing and terrorizing and thereafter, this appellant formed his own group with Santosh Ganjhu (A-4), Bihari Ganjhu (A-5), Sakendra Ganghu (A-6) and Pramod Ganjhu (A-7) in March, 2020. 47. It has further come that Aman Sahu directed them to carry out terror incidents for the purpose of extortion in the name of “Sujit Sinha and Aman Sahu gang”. The investigation further revealed, that after collecting the AK 47 and other weapons, Pradip Ganjhu (A-3) with his group Cr. Appeal (DB) No.781 of 2023 29 carried out firing in the siding of Purnadih and dropped threatening pamphlets and the group was going to carry out terrorist attack at Bukru siding, when they were intercepted by the Balumath Police. In this incident one AK-47 Rifle, other Arms and Ammunition and Rs. 107,000/- of extortion money were seized by Balumath Police and his Associates Manoj Turi and Jitender Tana Bhagat were arrested. 48. After the said incident of seizure of AK-47 Rifle etc and arrest of two Gang members by Balumath Police, Sujit Sinha (A-1) and Aman Sabu (A-2) in collaborations with Shakrukh, Pradip Ganjhu and others planned to carry out terror incident at Tetariyakhad Colliery. They were directed to attack on Truck owners, D.O., Holders, transporters and lifters to spread the fear in their minds so that they could be extorted and on the direction of Pradip Ganjhu (A-3) and Babulal Turi (A-8), Ajay Turi (A-9) wrote threatening pamphlets. 49. Later on, this appellant planned attack at Terariakhand colliery and about 6.30 PM, and for that purpose accused Pankaj Karmali @ Khetiya and Ajay Turi carried out recce at Tetariakhad. At about 7.PM Pradip Ganjhu (A-3) along with other accused persons carried out indiscriminate firing, in which 04 civilians were injured. They also burned down 04 trucks, 01 motorcycle and they blasted cane bomb beneath a Weigh Bridge and beneath a Cr. Appeal (DB) No.781 of 2023 30 truck. During the incident, they also dropped threatening pamphlets in the name of Sujit Sinha (A-1) and Pradip Cunjhu (A-3). 50. 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. 51. The argument has emphatically been made on behalf of appellant that there is no specific attributability of the appellant in commission of offence said to be committed under the Scheduled offence and the appellant has been implicated in the present case merely on the basis of the suspicion. 52. In the aforesaid context It requires to revisit the Statutory provision especially Section 43D (5) of Act 1967, which requires consideration before looking to the legality and propriety of the order refusing to grant of regular bail. 53. Section 43D (5) 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 apart from the other offences the appellant is accused of committing offences under Sections 17, 18 and 21 of the UA(P) Act, 1967. Cr. Appeal (DB) No.781 of 2023 31 54. The requirement as stipulated under Section 43D(5) of the UA(P) Act, 1967 in the matter of grant of regular bail that while considering the ground of delay under Section 43D(5) 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. 55. Further, since the learned counsel for the appellant has relied upon the judgment of K.A. Najeeb 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. 56. The Appellant’s counsel has relied upon the case of KA Najeeb (supra) to back its contention that the appellant has been in jail in the instant case since 07.02.2021 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. 57. In KA 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 Cr. Appeal (DB) No.781 of 2023 32 imprisonment i.e., more than five years, hence not interfered in order granting bail. 58. 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 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. 59. 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 Cr. Appeal (DB) No.781 of 2023 33 decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.” 60. 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. 61. 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. 62. Hence, applying the statutory provision as contained under Section 43-D(5) of the Act, 1967 along with its interpretation by the Hon’ble Apex Court in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali (Supra) and Gurwinder Singh Vs State of Punjab and Another (supra) is of the view that the argument which has been placed that the allegation which is leveled against the appellant cannot be said to be prima facie true is having no substance. 63. Further the bail application of co-accused copies of the order is appended with counter affidavit. 64. It has been informed by learned counsel for the NIA that one of the co-accused persons namely, Ajay Turi who has also filed application for prayer for bail and having Cr. Appeal (DB) No.781 of 2023 34 been rejected by the court of first instance and against which appeal has been filed in Cr. Appeal (DB) No. 133 of 2023. 65. This Court has rejected the said appeal by upholding the order passed by learned Special Judge. It has further been informed that the said Ajay Turi moved to Hon’ble Apex Court against the order passed by this Court by filing Special Leave to Appeal (Crl) No. 16471/2023, which was rejected vide order dated 22.01.2024, a copy of which has been placed before us for its perusal. 66. It is pertinent to mention herein that the other accused persons, namely, Babulal Turi, Kundan Kumar, Akash Kumar Roy @ Akash Roy @ Monu and Prabhat Kumar Yadav with whom the appellant was involved in commission of crime, their bail applications have been rejected vide order dated 08.09.2023, 30.06.2023, 13.02.2023 and 18.01.2023 in Cr. Appeal (DB) No. 549 of 2023, Cr. Appeal (DB) No. 298 of 2023, Cr. Appeal (DB) No. 11238 of 2022 and Cr. Appeal (DB) No. 191 of 2023 respectively. 67. Hence, on the basis of discussion made hereinabove, we are of the considered view that the material on record prima facie indicates the complicity of the accused as a part of the conspiracy since he was knowingly facilitating the commission of terrorist act under sections of the UAP Act. Cr. Appeal (DB) No.781 of 2023 35 68. 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. 69. Accordingly, the instant appeal fails and is dismissed. 70. It is made clear that the observation made by this Court in the instant appeal is for the purpose of consideration of grant of bail of the present appellant and it will not prejudice the trial of the appellant before the learned trial court. (Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) Birendra/A.F.R.
Arguments
Argument of the learned counsel for the opposite party 8. While on the other hand, Mr. Amit Kumar Das, learned counsel appearing for the National Investigating Agency (NIA) has defended the impugned order by taking following grounds: Cr. Appeal (DB) No.781 of 2023 6 (i) There is specific attributability against the appellant, as would be evident from various paragraphs of the charge-sheet i.e., paragraph nos. 17.17, 17.18, 17.19, 17.20, 17.21, 17.22, 17.23, 17.28, 17.29 and 17.36. (ii) It is submitted that the other accused persons, namely, Ajay Turi, Babulal Turi, Kundan Kumar , Akash Kumar Roy @ Akash Roy @ Monu and Prabhat Kumar Yadav with whom the appellant was involved commission of crime, their bail applications have been rejected vide order dated 17.05.2023, 08.09.2023, 30.06.2023, 13.02.2023 and 18.01.2023 in Cr. Appeal (DB) No. 133 of 2023,Cr. Appeal (DB) No. 549 of 2023, Cr. Appeal (DB) No. 298 of 2023, Cr. Appeal (DB) No. 11238 of 2022 and Cr. Appeal (DB) No. 191 of 2023 respectively. (iii) Further, one of the co-accused persons against whom the allegation of giving shelter was there, namely, Ajay Turi, whose bail application was also rejected vide order dated 17.05.2023 in Cr. Appeal (DB) No. 133 of 2023 against which the appellant preferred Special Leave to Appeal (Crl) No. 16471/2023 before the Hon’ble Apex Court, which was also dismissed vide order dated 22.01.2024. (iv) So far as applicability of the judgment referred by learned counsel for the appellant is concerned, Cr. Appeal (DB) No.781 of 2023 7 submission has been made none of the judgments are applicable in the facts of the present case. 09. Mr. Das, learned counsel for the respondent-NIA based upon the aforesaid ground has submitted that since the nature of allegation leveled against the appellant is very grave and bail of identically placed accused persons have already been rejected, therefore, the present appeal is also fit to be dismissed. Analysis 10. 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. 11. It would be evident from the prosecution version that on 18.12.2020 a case being Balumath P.S. Case No. 234/2020 was instituted on information received at the Balumath Police Station against the unknown persons leveling therein the charge of burning vehicles and firing indiscriminately near Check Post No.1 near Tetariakhand Colliery. The miscreants fired on the police party that had rushed to the spot. Accused persons had burnt four trucks one motorcycle and also injured 04 civilians. From the place of occurrence, remnants of the burnt vehicles, fragments of a cane bomb with wire, a white colour empty Cr. Appeal (DB) No.781 of 2023 8 gallon of approx 02 liters, spent cartridges and three hand written pamphlets containing threats to the transporters and coal companies, involved in the mining area signed by one Pradip Ganjhu were found from the spot. The Police, on enquiry found that Sujit Sinha and Aman Sahu @Aman Sao had conspired with accused Pradeep Ganjhu and his associates namely Santosh Ganjhu, Bihari Ganjhu, Sakendra Ganjhu, Pramod Ganjhu and others to collect extortion from CCL transporters, contractors, DO holders and disruption of legitimate works. 12. Based on the aforesaid allegation, Balumath P.S. case no 234/2020 dated 19.12.2020 was instituted for the offence under Sections 147, 148, 149, 353, 504, 506, 307, 427, 435, 386, 387 and 120B of IPC section 27 of Arms Act, Section 3/4 of the Explosive Substance Act, against accused persons. 13. The Ministry of Home Affairs, Government of India, in exercise of power conferred under Section 6(5) read with section 8 of the NIA Act 2008, directed the NIA to take up the investigation of the Balumath P.S. case no 234/2020 dated 19.12.2020 which was re-registered case no 01/2021/NIA-RNC. Chargesheet was consequently submitted against the appellant and other accused persons. 14. The argument which has been advanced on behalf of the appellant that there is no specific attributability of Cr. Appeal (DB) No.781 of 2023 9 the appellant in commission of offence said to be committed under the Schedule offence and the appellant has been implicated in the present case only on the basis of suspicion 15. Further submission has been made that save and except the confessional statement of co-accused persons nothing has been come so as to connect the complicity of the appellant in the alleged commission of crime or even involvement in conspiracy said to attract the offence under the Schedule offences. Ground has also been taken since there is no likelihood of trial to be concluded at an early date and hence by taking into consideration the said fact the appellant may be released on bail. 16. While on the other hand, Mr. Amit Kumar Das, learned counsel appearing for the National Investigating Agency (NIA) has submitted that there is specific attributability against the appellant, as would be evident from various paragraphs of the charge-sheet Further the bail applications of the co-accused persons, have also been rejected by this Court and even one of the co-accused persons namely, Ajay Turi, whose bail application was also rejected vide order dated 17.05.2023 in Cr. Appeal (DB) No. 133 of 2023 against which the appellant preferred SLP, which was also dismissed vide order dated 22.01.2024 in Special Leave to Appeal (Crl) No. 16471/2023. Cr. Appeal (DB) No.781 of 2023 10 17. 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 Activities (Prevention) Act, 1967(herein referred as Act 1967) which is required to be considered herein. 18. 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. 19. 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. 20. Clause (m) of Section 2 of the 1967 Act defines “terrorist organization”. It is defined as an organization Cr. Appeal (DB) No.781 of 2023 11 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 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. 21. 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) stands a person who is or continues to be a member of such association shall be liable to be punished. 22. 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. 23. 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 Cr. Appeal (DB) No.781 of 2023 12 of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true apart from the other offences the appellant is accused of committing offences under Sections 17, 18 and 21 of the UA(P) Act, 1967. 24. 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. 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 Cr. Appeal (DB) No.781 of 2023 13 23 of the aforesaid judgment is required to be quoted herein which reads hereunder as :- “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 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 Cr. Appeal (DB) No.781 of 2023 14 framing of charges in relation to offences under the 1967 Act….” 25. 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. 26. 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. 27. 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 the commission of the stated offence or otherwise. For ready reference paragraph 24 and 25 of the aforesaid judgment is being quoted herein under:- Cr. Appeal (DB) No.781 of 2023 15 “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 from 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.” Cr. Appeal (DB) No.781 of 2023 16 28. 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. 29. 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 Section 173 CrPC) and other material gathered by the investigating agency during investigation. Reference in this regard may be taken from the Judgment as rendered by the Hon’ble Apex Court in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra reported in (2005) 5 SCC 294. 30. The hon’ble Apex Court in a very recent judgment rendered in Gurwinder Singh Vs State of Punjab and Another reported in 2024 SCC OnLine SC 109 while taking in to consideration of the judgment as rendered in Cr. Appeal (DB) No.781 of 2023 17 the National Investigation Agency v. Zahoor Ahmad Shah Watali (supra) has observed that, the proviso to Sub-section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail and lays down that if the Court, ‘on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure’, is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the UAP Act is prima facie true, such accused person shall not be released on bail or on his own bond. 31. The Hon’ble Apex Court further observed that the conventional idea in bail jurisprudence vis-(cid:224)-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - ‘bail is the rule, jail is the exception’ - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act and the ‘exercise’ of the general power to grant bail under the UAP Act is severely restrictive in scope. 32. In the aforesaid context it has further been observed by the Hon’ble Supreme Court that the courts are, therefore, burdened with a sensitive task on hand and in dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail and Cr. Appeal (DB) No.781 of 2023 18 the ‘justifications’ must be searched from the case diary and the final report submitted before the Special Court. 33. In the aforesaid background the Hon’ble Apex Court has held that the test for rejection of bail is quite plain and Bail must be rejected as a ‘rule’, if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are