Ramesh Mandal @ Uday @ Sakinda aged about 28 Yrs., S/O Late Hiraman Mandal v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No. 1342 of 2024 ------ Ramesh Mandal @ Uday @ Sakinda aged about 28 Yrs., S/O Late Hiraman Mandal R/O Bigha Parwatraidih, P.O. & P.S. Deori, Dist. Giridih (Jharkhand) State of Jharkhand .... Respondent Versus …. Appellant CORAM : HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE NAVNEET KUMAR ------ For the Appellant For the CBI : Mr. Tarun Kumar No.1, Advocate : Mr. Anil Kumar, A.S.G.I. : Ms. Chandana Kumari, AC to A.S.G.I. ------ 03/Dated: 28th November, 2024 I.A. No. 11448 of 2024 1. Learned counsel for the appellant seeks leave of this Court to make necessary correction in the cause title of the instant interlocutory application to the effect that in place of Section 21(5) of the NIA Act, 2008, it has been filed under Section 5 of the Limitation Act. 2. Considering his prayer, let necessary correction be made in the in course of the day. 3. The instant interlocutory application has been preferred under Section 21(5) of the NIA Act for condoning the delay of 10 days in preferring the instant appeal.
Facts
4. Heard learned counsel for the parties. 5. Considering the reason assigned in the interlocutory application and taking into consideration the purport of Section 21(5) of the NIA Act, 2008, the delay of 10 days in preferring the appeal is hereby condoned. 6. Accordingly, the IA No. 11448 of 2024 stands allowed. Page 1 of 8 Cr. Appeal (D.B.) No. 1342 of 2024: 1. The matter has been heard by the consent of both the parties. 2. The instant appeal has been preferred under Section 21(4) of the National Investigation Agency Act, 2008, is directed against the order dated 05.08.2024 passed by the learned Additional Sessions Judge-III cum Special Judge, CBI, Dhanbad in ST Case No. 346(A) of 2011 arising out of RC Case No. 07(S)/2005, by which the prayer for regular bail of the appellant registered under Sections 147/148/149/302/427/435 of the Indian Penal Code and under Sections 17/18 of Criminal Law Amendment Act, under Section 13 of Unlawful Activities (Prevention) Act, 1967 and under Section 27 of Arms Act, has been rejected. 3. It has been contended by the learned counsel appearing for the appellant that the appellant is languishing in judicial custody since 20th November, 2017 and the trial has not been concluded. On the aforesaid ground, the present appeal is filed. 4. It has been submitted that although, earlier the prayer for regular bail has been rejected vide order dated 19.09.2023 by the Co-ordinate Bench of this Court in Cr. Appal (DB) No. 1545 of 2022. 5. The argument has been advanced mainly on the ground that the appellant is languishing in custody since 20th November, 2017 but as yet the trial has not been concluded as such it is a fit case for suspension of sentence taking into consideration the implication of Article 21 of the Constitution of India.
Legal Reasoning
been able to make out a prima facie case for enlarging him on bail, deems it fit and proper to discuss main objective and purpose of Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as Act, 1967). 13. 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, the Unlawful Activities (Prevention) Act, 1967 has been enacted to provide for 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 Page 3 of 8 object of enactment of U.A.(P) Act is also to provide for more effective prevention of certain unlawful activities. 14. 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. 15. Now adverting to fact of the instant case it is admitted position that earlier prayer for regular bail of the appellant has been rejected vide order dated 19.09.2023 by the Co-ordinate Bench of this Court in Cr. Appal (DB) No. 1545 of 2022.The Co-ordinate Bench while passing the said order has taken into consideration the culpability of the present appellant in alleged commission of crime and also has taken into consideration the complicity of the appellant transpired during investigation and on 9th November 2012 when the appellant was on way to the Court at Giridih he absconded and finally nabbed and remanded in this case on 20th November 2017. 16. For ready reference, Paragraph 3 and 4 is being quoted herein which reads as under: “3. Mahendra Prasad Singh who was a former Member of the Legislative Assembly, Jharkhand was assassinated on 16th January 2005 by a group of 25-30 extremists who according to the prosecution belong to MCC(I). A First Information Report was lodged for commission of the offence under sections 147, 148, 149, 302, 427 and 435 of the Indian Penal Code, sections 17/18 of the Criminal Law Amendment Act, section 13 of the UAP Act and section 27 of the Arms Act against unknown. In course of the investigation, complicity of the appellant transpired and he was taken into custody and remanded to judicial custody on 15th May 2011. On 9th November 2012 when the appellant was on way to the Court at Giridih he absconded and finally nabbed and remanded in this case on 20th November 2017.” Page 4 of 8 4. In the occurrence of 16th January 2005 the investigating officer collected empty cartridges, Suzuki Victor motorcycle and other incriminating articles. In the order dated 5th March 2022 by which the bail petition dated 20th November 2021 filed by the appellant was dismissed, the Special Judge has made a reference to statement made by PW6, PW17 and PW27.” 17. The learned counsel for the appellant in his submission mainly emphasised that if the period of custody of the appellant will be taken into consideration, same is in the teeth of Article 21 of the Constitution of India, hence appellant may enlarge to privilege of bail. In this regard he has put case of K.A. Najeeb (supra). his reliance upon the judgment rendered by the Hon’ble Apex Court in the 18. In the context of aforesaid this Court is of view that there is no quarrel about the settled position of law that Article 21 of the Constitution of India provides for protecting the fundamental right of liberty but that is to be assessed by carving out the balance in enforcing the law and order. 19. 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. 20. 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 20.11.2017 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. 21. 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 Page 5 of 8 the maximum imprisonment i.e., more than five years, hence not interfered in order granting bail. 22. 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. 23. T witnesses i.e. 276, put a pin-pointed question therein for reducing the he Hon’ble Apex Court taking in to consideration the huge number of number of witnesses by the investigating agency and when the same has consideration the period of custody and there is no likelihood of conclusion been shown to be not possible then the Hon’ble Apex Court, by taking into of the trial in near future, has not interfered in the order granting bail to the respondent-accused. 24. But here in the instant case, as per the submission made by the learned counsel for the appellant out of 75 witnesses, 26 witnesses have already been examined. Thus, this Court is of the view that in the facts and circumstan Union of India Vs. K.A. Najeeb(supra) will not be applicable in fact and ces the judgment rendered by the Hon’ble Apex court in circumstances of instant case. 25. Further, in the case of Gurwinder Singh v. State of Punjab and Another [(2024) SCC OnLine SC 109 in the matter of UAPA, has formulated the concept that bail is rule and jail is exception. Such the Hon’ble Apex Court observation has been made based upon the principle that a balance is to be maintained in between the personal liberty and the societal impact. The jurisprudence vis-(cid:224)-vis ordinary penal offences that the discretion of Courts Hon‟ble Apex Court further observed that the conventional idea in bail must tilt in favour of the oft-quoted phrase - unless circumstances justify otherwise - does not find any “bail is the rule, jail is the – exception‟ place while dealing with bail applications under UAP Act and the ‘exercise‟ Page 6 of 8 of the general power to grant bail under the UAP Act is severely restrictive in scope. 26. Even in the case of Shoma Kanti Sen v. State of Maharashtra, (2024) 6 SCC 591 liberty results in breach of Article 21 of the Constitution of India and must the Hon’ble Apex Court has observed that any form of deprival of be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in the facts of a given case, for ready reference the relevant paragraph of the aforesaid judgment is being quoted as under: “46. Pre-conviction detention is necessary to collect evidence (at the investigation stage), to maintain purity in the course of trial and also to prevent an accused from being fugitive from justice. Such detention is also necessary to prevent further commission of offence by the same accused. Depending on gravity and seriousness of the offence alleged to have been committed by an accused, detention before conclusion of trial at the investigation and post charge-sheet stage has the sanction of law broadly on these reasonings. But any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in the facts of a given case. These would be the overarching principles which the law courts would have to apply while testing prosecution’s plea of pre-trial detention, both at investigation and post charge-sheet stage” 27. Now Adverting to the factual aspect of the present case, it is clear from the submission made by the learned A.S.G.I. that out of 75 witnesses 26 witnesses have already been examined and as such it is not a case where the trial is not at progress. Page 7 of 8 28. This Court is of the view that since the Co-ordinate Bench has already taken a view while rejecting the prayer for bail on merit and as such taking into consideration the nature of allegation and nature of gravity and also the involvement of the present appellant as has been taken note by the Co- ordinate Bench at Paragraph 3 and 4 thereof, no interference is required in the impugned order. 29. Therefore, this Court is of the view that no interference is required in the impugned order. 30. The trial is at progress and as such the learned ASGI has undertaken before this Court that considering the period of incarceration of the present appellant that the efforts shall be taken to conclude the trial expeditiously by producing the witnesses. 31. Accordingly, the instant appeal being Cr. Appeal (DB) No. 1342 of 2024 stands dismissed. (Sujit Narayan Prasad, J.) (Navneet Kumar, J.) Samarth/ Page 8 of 8
Arguments
To buttress this limb of argument the learned counsel for the appellant has in the case of Union of India V KA Najeeb [(2021) 3 SCC 713]. placed his reliance upon the judgment rendered by the Hon’ble Apex Court 6. The learned counsel for the appellant, based upon the aforesaid grounds, has submitted that the learned court has not taken note of the aforesaid facts, therefore, the present appeal is fit to be allowed and it is a fit case where the appellant may be directed to be released on bail. Page 2 of 8 7. While on the other hand, the learned Additional Solicitor General of India has vehemently opposed the prayer for bail. 8. It has been submitted that the prayer for bail of the appellant has been rejected on merit by the Co-ordinate Bench of this Court. The said rejection is based upon the nature of the allegation said to be serious wherein a former Member of the Legislative Assembly, namely, Late Mahendra Prasad Singh was assassinated on 16th January, 2005 by a group of 25-30 extremists, who according to the prosecution, belong to MCC(I). 9. It has been contended, on instruction, that it incorrect on the part of the appellant to take the ground that there is no progress in the trial, rather, out of 75 witnesses, 26 witnesses have already been examined. 10. learned counsel for the respondent-NIA, based upon the aforesaid grounds, has submitted that since the nature of allegation leveled against the appellant is very grave, therefore, the present appeal is fit to be dismissed. 11. We have considered the case of the appellant on the basis of the judgment rendered by Hon’ble Apex Court in the case of Union of India V KA Najeeb (supra) as also by taking into consideration the imputation of Article 21 of the Constitution of India based on the period of incarceration. 12. This Court, before proceeding to examine as to whether the appellant has