1. Aftab Khan 2. Shoaib Khan 3. Mohammad Saud Khan @ Mohammad Saud Alam v. The State of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No.2024 of 2023 ------ 1. Aftab Khan 2. Shoaib Khan 3. Mohammad Saud Khan @ Mohammad Saud Alam 4. Abdul Mobin Mian @ Abdul Mobin Nizami 5. Zunaid Khan 6. Sakir Khan 7. Ashique Ali 8. Irfan Ali 9. Fahad Khan 10. Shadab Khan …. …. Appellants Versus The State of Jharkhand .... .... Respondent With Cr. Appeal (DB) No.1722 of 2023 ------ 1. Ajay Kumar @ Ajay Gupta 2. Subhash Chatterjee 3. Deepak Kumar Verma 4. Pradeep Singh …. …. Appellants Versus State of Jharkhand .... .... Respondent With Cr. Appeal (DB) No.1979 of 2023 ------ Nandjee Prasad …. …. Appellant Versus The State of Jharkhand .... .... Respondent
Legal Reasoning
CORAM : HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA ------ 2 For the Appellant For the State : Mr. Rohit, Advocate [In Cr. Appeal(DB) No.2024/23] : Mr. Rajendra Krishna, Advocate Mr. Jay Shankar Tiwary, Advocate Mr. Pratyush Shounikya, Advocate [In Cr. Appeal(DB) No.1722/23] : Mr. Akhouri Awinash Kumar, Adv. [In Cr. Appeal(DB) No.1979/23] : Mr. Anup Pawan Topno, APP [In Cr. Appeal(DB) No.2024/23] : Mrs. Priya Shrestha, Spl. P.P. [In Cr. Appeal(DB) No.1722/23] : Mr. Pankaj Kumar, P.P. [In Cr. Appeal(DB) No.1979/23] 06/Dated: 26.02.2024 ------ 1. All the appeals since have arisen out of common FIR in connection with Kadma P.S. Case No.54 of 2023, hence, directed to be heard together and accordingly, the appeals (three in numbers) are being heard together. 2. These appeals preferred under Section 21(4) of the National Investigation Agency Act, 2008 are directed against the order dated 26.09.2023 passed in A.B.P. No.1337 of 2023 & A.B.P. No.1526 of 2023 and order dated 25.08.2023 passed in A.B.P. No.1329 of 2023 by the Additional Sessions Judge-II, East Singhbhum, Jamshedpur in connection with Kadma P.S. Case No.54 of 2023, registered for the offence under Sections 147, 148, 149, 332, 333, 337, 338, 353, 427, 307, 153-A, 188, 295-A, 120-B, 116, 435, 436 of the IPC, 27 of the Arms Act, 3/4 of the Explosive Substances Act and Section 3 of the Prevention of Damage to Public Property Act, whereby and whereunder, the prayers’ for anticipatory bail of the appellants have been rejected. 3 3. The prosecution story in brief is that the informant Anay Raj, the City Manager (J.N.A.C.) lodged the written information with these allegations that on 9th April, 2023 he was deployed in the Shashtri Nagar to maintain law and order. Along with him, Sri Santosh Kumar Mahto, Executive Magistrate, Dhalbhum, Sri Jai Prakash Karmali, Executive Magistrate, Dhalbhum, Smt. Jyoti Kumari, Executive Magistrate, Dhalbhum, Sri Ravi Shankar Bharti, City Manager (J.N.A.C.) Sakchi and several police personnel along with QRT Force were deployed to maintain the law and order in Shastri Nagar under Kadma Police Station. It is further alleged that at 06:30 p.m. they saw that near Shashtrinagar Block Nos.2 and 3 in Jatadhari Shiv Hanuman Mandir about 200 Hindu and in Shashtrinagar Block Mosque about 1000 Muslims armed with lathi, danda and sword in order to provoke religious enmity were raising slogans and pelting stones to each other. The informant, all the Executive Magistrates and police personnel made effort to pacify them but they further began to pelt stones to each other. After sometime, the Deputy Superintendent of Police, Kamal Kishore came by his Sumo car along with his bodyguards and his car was damaged by pelting stones and bricks, whereby the glass of the car was broken. Dy. S.P. Kamal Kishore and his Bodyguards, namely, Ajay Kumar and Mukesh Kumar all got down from the car and made effort to control the mob and Dy. S.P., Kamal Kishore and his both bodyguards got injured. The A.K. 47 rifle of Bodyguard, Mukesh Kumar was also damaged. The miscreants from the side of Muslim community 4 wanted to enter in Jatadhari Shiv Hanuman Mandir, however, they have been restrained by the Dy. S.P., Kamal Kishore. After having received the information, the Superintendent of Police (City) East Singhbhum Jamshedpur, Sub-Divisional Magistrate, Dhalbhum, Officer-in-charge Bistupur, Officer-in-charge Sonari, Officer-in-charge Sidhgoda, Officer-incharge Parsudih, Officer-in-charge Jugsalai along with police force reached at the place of occurrence. 4. The situation at the place of occurrence became worse. The shops made out of grass and asbestos as well as two motorcycles were burnt. Further Section 144 Cr.P.C. proclamation was made and announced. The mob was declared unlawful assembly and all were asked to disperse but the mob became more rash and both sides were asked to desist off from committing riot and from both sides bricks and stones were pelted on the police personnel and Magistrates. From the side of mosque, four round fire were opened and bottle bombs were also hurled upon the police personnel and Magistrates. Two round tear gas were opened and lathi charge was also done. At 8 o’ clock, Rapid Action Force reached there and they opened nine round tear gas and the mob was raising slogan of Allah Ho Akbar and Jai Sri Ram. The Magistrates and police personnel also injured in this incident and the public and government property were also damaged. It is also alleged that in this occurrence, some political and social activists were also involved, who under a criminal conspiracy in order to abet the communal enmity have got this occurrence committed. First Information Report was lodged against 5 119 named accused from both Hindu and Muslim community and against unknown 200 Hindu and 1000 Muslims. In this occurrence, Arshad Gaddi, Ismile Ansari, Atif Khan, Sheikh Sahil, Afjal Hussain and Md. Salauddin had sustained injuries and all were pelting stones and bricks, however, all were apprehended at the spot in order to control them. 5. The video clip of the occurrence was also prepared by the police force, Magistrates and Press-Media persons as well on the basis of which the other accused could have been identified. The F.I.R. of this occurrence was lodged against 119 named accused including the appellants and 200 Hindu as well as 1000 Muslims unknown persons with the police station concerned. 6. Learned counsel for the appellants in all these appeals have submitted that the appellants had no concern in regard to forming unlawfully assembly and merely because, they belong to the same locality, they had been implicated in the present case. 7. It has been contended that the other co-accused persons, who have been apprehended from the spot, filed criminal appeals for seeking prayer for grant of regular bail. The same has been dealt with by this Court and vide order dated 21.07.2023 passed in Cr. Appeal (DB) No.842 of 2023 with analogous cases, the appellants of those appeals have been directed to be released on bail after quashing and setting aside the order refusing the prayer for regular bail, on merit. 8. Learned counsel for the appellants, therefore, submit that since 6 the same set of co-accused persons have been directed to be released on bail by taking into consideration the fact that there is omnibus and vague allegation and based upon the same, this Court, since, has considered the prayer for regular bail, hence, herein also, the allegation against the appellants are identical to the appellants of those appeals and only difference is that in these three appeals, the appellants are seeking prayer for pre-arrest bail. 9. Learned counsel for the appellants have submitted that since against the appellants, the vague and omnibus allegation are also there in clash in between the two different religions, which breaks all of a sudden and taking into consideration the aforesaid fact, this Court has directed the other appellants to release on bail vide order dated 21.07.2023 passed in Cr. Appeal (DB) No.842 of 2023 with analogous cases, hence, the instant appeals are also fit to be allowed. 10. While, on the other hand, Mr. Pankaj Kumar, learned Public Prosecutor, Mrs. Priya Shrestha, learned Spl. Public Prosecutor and Mr. Anup Pawan Topno, learned Addl. Public Prosecutor appearing for the respondent-State have vehemently opposed the prayer for pre-arrest bail in showing interference with the impugned orders on the ground that there is specific allegation against the appellants particularly, the appellant in Cr. Appeal (DB) No.1979 of 2023. 11. It has further been submitted that against the other appellants also, the allegation since is there for causing loss to the public property and disturbance in the society leading to aggravate the 7 tranquility in the area. 12. It has been contended that the appellants, who have been directed to be released on bail, were apprehended from the spot and remained in custody for some period, they have been directed to be released on bail and since in these cases, i.e., the appellants in present appeals are seeking prayer for pre-arrest bail and as such, the ground which has been taken at the time of consideration of prayer for regular bail with respect to the appellants of Cr. Appeal (DB) No.842 of 2023 with analogous cases, is not applicable in the facts of the case. 13. It has been submitted by the learned counsel for the respondent-State that against some of the appellants in Cr. Appeal (DB) No.2024 of 2023, namely, Aftab Khan, Shoaib Khan, Mohammad Saud Khan @ Mohammad Saud Alam, Abdul Mobin Mian @ Abdul Mobin Nizami & Zunaid Khan, there are criminal antecedents. 14. In response to the submission made on behalf of the respondent-State, it has been submitted that there cannot be any two different parameters so far as the issue on merit is concerned and different parameters are to be followed in the matter of grant of regular bail and at the time of consideration of pre-arrest bail, there will be a different parameter. Rather, the submission has been made that the regular bail or the pre-arrest bail is to be considered based upon the merit of the issue and if set of the co-accused persons, who have been said to be apprehended from the spot, directed to be 8 released on regular bail, there cannot be a situation that the privilege of pre-arrest bail, is not to be granted to such persons who have not been apprehended from the spot. 15. This Court has heard the learned counsel for the parties and gone across the finding recorded by the learned court in the impugned order in the respective appeals as also the case diary and the affidavit in objection. 16. This Court, at the outset, needs to refer herein that as per prosecution story, several accused persons were apprehended from the spot. These persons had preferred appeals after the prayer for regular bail having been denied, i.e., Cr. Appeal (DB) No.842 of 2023 with analogous cases, which have been filed under Section 21(4) of the N.I.A. Act, 2008. 17. This Court has considered the rival submission made on behalf of the parties as also the order dated 21.07.2023 passed in Cr. Appeal (DB) No.842 of 2023 with analogous cases, wherein, the statement of the Informant-Anay Raj recorded under Section 161 of the Cr.P.C., has been taken note at paragraph-8 of the aforesaid order. The statement of the victim Bharat Kumar has been taken note at paragraph-9. Likewise, the statement of the victim Rajkapoor and Santosh Prasad have been taken note at paragraphs-10 and 11. One another victim, namely, Md. Saud Alam has also given his statement, as referred at paragraph-13. The statement of the police personnel has been taken note by this court at paragraph-14 and the statement of the independent witnesses has been referred at paragraph-15 of 9 the order dated 21.07.2023. The reference of video clip which was seized by the Investigating Officer has also been taken note at paragraph-16 and further, the evidence collected by the Investigating Officer has been taken note at paragraph-17, for ready reference, these paragraphs are being referred as under:- “8. The restatement of the informant—Anay Raj was recorded under Section 161 Cr.P.C., who supported the prosecution version as stated in the F.I.R. In view of paragraph 142 of the case-diary, the I.O. inspected the place of occurrence and clicked the photograph of the place of occurrence in which it is also indicated that miscreants have damaged the Hyundai Creta car bearing registration no. JH 05 CE 4517 of which glass and body was damaged. The 23 tool glass of the house were damaged. In front of Jatadhari Mandir, outer circle road, the Vision Healthcare shop was also damaged and three Mahindra cars were also damaged. The hotels and shops of the locality were also burnt and damaged. The statements of victims Bharat Kumar, Rajkapoor, Santosh Prasad, Manoj Sao, Rani Sao, Smt. Sangita Devi and Md. Saud Alam were also recorded under Section 161 of the Cr.P.C. by the I.O. during investigation. 9. The victim Bharat Kumar has stated that Arshad Mardana, Ahad Khan, Soheb Khan, Aftab Khan, Gora Bhaiya, Sadab Khan, Md. Taukir, Junaid Khan, Abdul Mobin, Nijamin, Atif and others who had covered their face intruded in his shop to whom he had identified. At the road 1100 to 1200 extremists who were armed with sword, gandasa, bhala, chapad and bottles were raising anti-religion slogans and were also pelting bricks and stones. 10. The victim Rajkapoor also stated that Aftab Khan, Arshad @ Mardana, Shadab Khan, Fahad Khan, Soheb Khan, Md. Taukir, Gora Bhaiya, Meraj, Afridi etc. were identified by him while they were vandalizing the household articles of the persons of the locality. 11. The victim Santosh Prasad also stated that Aftab Khan, Abdul Mobin Nijamin, Arshad @ Mardana, Shadab Khan, Sakir Khan, Junaid Khan, Fahad Khan, Md. Shahid Khan, Soheb Khan, Md. Tokir, Md. Bekal, Gora Bhaiya, Md. Rahim, Md. Meraj, Md. Afridi, Md. 10 Taushik, Md. Atif Khan, Md. Irfan Matka Wala, Md. Jahid, Md. Sarik, Md. Dasgir, Langda Temp Driver, Md. Raja, Aftab, Baikari Raju, Bhatri, Asif, Motu, Chand, Dara, Kana Faiyaz, Afjal, Baccha Khan, Alia ka Bhagina, Imran Khan, Pogar Raju, Wasim Matka Wala all were present at the place of occurrence and persons from the side of Muslim community opened 3 to 4 round fire and a sound was heard like explosion of the bomb from their side. Along with these persons there were around 1500 other persons of the Muslim community. While Sudhanshu Ojha, Nandji Prasad, Umesh Singh, Dwipal Biswas, Roshan Kumar, Sandeep Pandey all were also present there and some local leaders of Vishwa Hindu Parishad (in short “VHP”) were also delivering speech there. The mob had also attacked on the police personnel. 13. The victim Md. Saud Alam in his statement stated that the local leader of Bhartiya Janta Party (in short “BHAJPA”) and VHP were addressing to the mob and they were raising slogan against Muslim community. He had identified Dwipal Biswas, Sudhanshu Ojha, Umesh Singh, Sandeep Pandey and other from the Hindu community while from Muslim community he had also identified Arshad Mardana, Md. Taukir, Md. Asif, Afridi, Meraj, Langda Tempo Driver, Amir Khan, Imran, Firoz, Rafique Mandal at the place of occurrence. In this occurrence several police personnel sustained injury. The vehicles and the shops in the locality where the occurrence took place were burnt and damaged by the mob. 14. The injured police personnel Shashi Kapoor, Executive Magistrate Jai Prakash Karmali, Santosh Kumar Mahto, Executive Magistrate whose statements were also recorded in paragraphs 154, 155 and 156 respectively of the case diary under Section 161 Cr.P.C. have also supported the allegations made in the F.I.R. 15. The independent witnesses, namely, Chandrashekhar Singh, Vishwanath Poddar, Uday Ram and Laxman Ram in their statements have stated that BHAJPA leaders, namely, Abhay Singh, Sudhanshu Ojha, Nandji Prasad, Umesh Singh and VHP leaders, namely, Janardan Pandey, Kanhaiya Pandey, Ajay Gupta, Shankar Rao, Bhola Lohar, Rajesh Chaubey, Chandan Chaubey, Bhim Yadav, Chandan Das etc. were present at the place of occurrence with whom they were familiar. The BHAJPA and VHP leaders were provoking communal enmity pertaining to religion. It is 11 further stated by the independent witnesses that from the Muslim side, Aftab Khan, Nijamin, Abdul Mobin, Laddan, Arshad Gaddi, Atif Khan, Md. Raja, Arshad @ Mardana, Kana Faiyad, Md. Rahim and others were also raising anti-religion slogans and pelting stones. They had also intruded in the Jatadhari Mandir and pelted stones upon the mob and also damaged the glass of the window of the nearby houses. 16. The video clip was also seized by the I.O. and same was stored in a pendrive in which it is seen that the accused Sudhanshu Ojha, Dwipal Biswas, Roshan Kumar were delivering speech in order to provoke the enmity between the two sects. In paragraph 369 of the case diary, the call detail report of some of the accused in regard to their location at the place of occurrence is mentioned. In paragraph 403 of the case diary, the CCTV footage of the place of occurrence is mentioned but none was identified on the basis of the CCTV footage. 17. From the evidence collected by the I.O., it is found that none of the appellants were apprehended at the spot, though the name of the appellants have figured in the F.I.R. among 119 named accused persons along with 200 unknown persons of Hindu Community and 1000 unknown persons of Muslim community. The role assigned to all the named accused and also the unknown persons is general and omnibus. No specific role has been attributed to any of the appellants, though the victims whose statements were recorded under Section 161 Cr.P.C. as referred hereinabove have identified some of the accused of both community i.e., Hindu and Muslim but all these victims have stated that these accused persons, who were identified by them along with other unknown miscreants of both the community had committed riot at the place of occurrence. Only the presence of these appellants has been identified at the place of occurrence but the role of these appellants along with other unknown accused who were more than 1500 of both community have been assigned general and omnibus role. Some leaders of BHAJPA and VHP whose names also came in the statements of the witnesses under Section 161 Cr.P.C. have been alleged to address the mob in order to provoke the communal enmity and even the police personnel have also in their statements have given the same kind of the statement. Despite the heavy police force, none of the so called leaders of BHAJPA and VHP 12 were apprehended at the spot by the police; while addressing at the place of occurrence.” 18. This Court, has taken into consideration the statement of the witnesses and the victim as also the concession made by the learned AAG-II to the effect that all the named appellants along with other whose name does not figure in the FIR have been assigned general and omnibus role which has been taken note at paragraph- 18 of the aforesaid order, for ready reference, the same is being referred as under:- “18. The learned Additional Advocate General-II also conceded this fact that all the named appellants along with other unknown accused whose names do not figure in the F.I.R. have been assigned general and omnibus role. The co-accused Chandan Das @ Chandan Ruhidas, Bhola Lohar, Shankar Rao @ S. Shankar Rao, Kanhaiya Pandey @ Praful Kumar, Bhim Yadav, Aniruddha Kumar Giri and Rajesh Choubey whose names do not figure in the F.I.R., rather their names transpired during investigation have also been granted bail by the learned trial court in B.P. No.500 of 2023 vide order dated 17th May, 2023 passed by the learned Additional Sessions Judge-II, East Singhbhum, Jamshedpur. It is evident from the evidence collected by the I.O. that the accused persons of both Hindu and Muslim community were pelting stones to each other, whereby police personnel sustained injury and their vehicles were also damaged. From the F.I.R. allegation, it is also evident that it were the persons of the Muslim community, who were armed with deadly weapons, had intruded in Jatadhari Shiv Hanuman Mandir. In this case, the charge-sheet has been filed and at this stage it cannot be ascertained that who was the aggressor between both the communities. This fact is also admitted that though the police personnel sustained injury, yet the nature of injury 13 was not grievous. There is no injury report on record or statement of the doctor in regard to conducting the medical examination of the injured.” 19. This Court, after taking into consideration the aforesaid material has allowed the appeals by interfering with the impugned orders rejecting the prayer for bail. 20. Herein, against the appellants, it has come that these appellants were present amongst the crowd. 21. The learned State Counsels have submitted that although the benefit of regular bail has been granted in favour of the several accused persons in batch cases, i.e., Cr. Appeal (DB) No.842 of 2023 with analogous cases but the said parameter cannot be said to be followed since these appeals have been filed seeking therein the privilege of pre-arrest bail. 22. This Court is not in agreement with such submission, reason being that the pre-arrest bail or the regular bail is to be considered by the Court based upon the prima-facie involvement of the concerned person. 23. The only difference in between the pre-arrest bail or the regular bail is that the regular bail is to be filed in the same set of allegation if the person concerned, who has been made accused, has been taken into custody but if in the meanwhile, the other co-accused persons who have not been apprehended, has approached to the Court and in a position to make out a case that there is no prima- facie evidence for showing his involvement then it is not fit for the court to negate the privilege of pre-arrest bail merely because, the 14 some set of persons have been directed to be released on bail who have been apprehended from the spot, rather, it is the bounden duty of the court to assess the principle which is to be applicable for the purpose of pre-arrest bail, i.e., the accused person is to make out a prima-facie case for grant of pre-arrest bail. Meaning thereby, the parameter in both the applications seeking for regular bail or the pre- arrest bail, will be similar and mainly the allegation on the face of the FIR or the material collected in course of investigation is to be seen. 24. Herein, we have already considered the issue on merit while granting the regular bail in connection with other co-accused persons who are appellants before this Court in Cr. Appeal (DB) No.842 of 2023 with analogous cases and further the appellants were alleged to be present in the crowd. 25. Since, we have taken note of the consideration made by this Court with respect to the attributability said to be committed by the accused persons who have been apprehended from the spot and the allegations against these appellants are that they were found to be present in the crowd, while the persons, who were apprehended had been found to be giving instigating speeches, as per the case diary. 26. Therefore, this Court is of the view that so far as the issue on merit is concerned, based upon the statement of the witnesses recorded under Section 161 of the Cr.P.C. or the statement of the Investigating Officer or the material collected in course of investigation, are also to be applied with respect to cases of the present appellants. 15 27. Moreover, we are considering the pre-arrest bail and hence, we have to consider the prima-facie case for the purpose of grant of privilege of pre-arrest bail. 28. Considering the fact, this Court is of the view that it will not be just and proper even though this Court has come to the conclusion that the attributability of commission of allegation, as alleged against the appellants of Cr. Appeal (DB) No.842 of 2023 with analogous cases are exactly similar to that of the appellants of present appeals, merely because, they have been apprehended from the spot and thereafter, they, after remaining in custody for certain period, have been directed to be released on bail, then the same parameter is to be adopted by this court herein. 29. Accordingly, the impugned order dated 26.09.2023 passed in A.B.P. No.1337 of 2023 & A.B.P. No.1526 of 2023 and order dated 25.08.2023 passed in A.B.P. No.1329 of 2023 by the Additional Sessions Judge-II, East Singhbhum, Jamshedpur, require interference. 30. In view therefore, the impugned order dated 26.09.2023 passed in A.B.P. No.1337 of 2023 & A.B.P. No.1526 of 2023 and order dated 25.08.2023 passed in A.B.P. No.1329 of 2023 by the Additional Sessions Judge-II, East Singhbhum, Jamshedpur, is hereby quashed and set aside. 31.
Decision
In the result, the instant appeals stand allowed. 32. On consideration of the aforesaid facts, this Court is inclined to extend the privilege of pre-arrest bail to the appellants. The 16 appellants, above named, accordingly, are directed to surrender before the learned court below within 15 days and on their surrender, they shall be released on bail on furnishing bail bond of Rs.25,000/- (Rupees Twenty Five Thousand only) each with two sureties of the like amount each, to the satisfaction of the learned Addl. District Judge-I, Jamshedpur [appellants of Cr. Appeal (DB) No.2024 of 2023], Sub Divisional Judicial Magistrate, Jamshedpur [appellants of Cr. Appeal (DB) No.1722 of 2023 & appellant of Cr. Appeal (DB) No.1979 of 2023], in connection with Kadma P.S. Case No.54 of 2023, subject to the conditions as laid down under Section 438 (2) of the Code of Criminal Procedure with further condition that the appellants shall co-operate in the trial and shall not absent on the date fixed without any cogent cause. In failure, the learned trial court shall have liberty to pass appropriate order in accordance with law so that trial, be not hindered and further that one of the bailors should be close relative of the appellants, which is to be accompanied by affidavit justifying that such bailor is close relative of the appellants. 33. Accordingly, the instant appeals stand disposed of. (Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) Rohit/-