Sr. No. 21 v. National Investigation Agency New Delhi

was dismissed in case FIR No.36/2018/NIA/DLI under sections 13/19/39 of Unlawful Activities Prevention Act, 1967.

02. The impugned order has been assailed on the grounds that the same has been passed without any application of mind against the record and deserves to be set aside; that the trial Court while framing charge has ruled out the aspect of any conspiracy and the appellant has been charged to have provided food and shelter to the terrorists and that only two witnesses have been cited to prove this charge against the appellant, out of more than 100 cited witnesses; that since 05.07.2021, when the charge was framed against the appellant, the prosecution has succeeded to examine only two witnesses within a period of more than one year and the prosecution has been very slow 2 in bringing witnesses to the Court and denying the right of speedy trial to the appellant who had been incarcerated for more than three years having been arrested on 22.02.2019. It has been further pleaded that given to the long list of prosecution witnesses and the slow speed of prosecution to examine them during the trial, shall be detrimental to the liberty of the appellant, who is an innocent person, against his right as enshrined in the constitution.

03. Learned counsel for the appellant has assailed the impugned order primarily, on the ground that the prosecution has been adopting delaying tactics to examine the prosecution witnesses so as to ensure that all the accused including the appellant are incarcerated for years together without providing speedy trial to which they are entitled to. He has drawn our attention to another case of similar nature wherein PW-40 while appearing as a witness to depose with regard to involvement of the appellant herein had not supported the prosecution case and turned hostile. The appellant has the apprehension that the PW-40 and PW-45 are being withheld from being examined by the prosecution, with intention to prolong the trial so that the appellant continues to be incarcerated for a petty long time.

04. Learned counsel for the appellant has further argued that the appellant had admitted the statements of as many as, 20 prosecution witnesses and also requested the trial Court to examine PWs - 40 and 45 who have been cited to depose to prove the charge against the appellant for having harboured the other accused for having committed the offences for which they have been charged. He has further argued that the appellant is entitled to the grant of bail for delay in trial as his right of speedy trial is being violated. He has finally prayed that the impugned order be set aside and the appellant be granted bail in the case in which he had been charged in the year 2021. 3

05. Learned counsel for the respondent, ex adverso, argued that the appellant has abetted the commission of murder of two brothers namely Anil Kumar Parihar and Ajeet Kumar Parihar, residents of Main Bazar of Kishtwar, on 01.11.2018 at Tupple Gali when they were shot at with illegal weapons; that the appellant has been chargesheeted for the commission of offences punishable under Unlawful Activities (Prevention) Act. The prosecution has been examining the witnesses and it is not for the appellant to decide as to which witnesses are required to be examined at this stage. Since it is always the prerogative of the prosecution to examine the witnesses as per the convenience of the prosecution and a witness cannot be called to be examined, just on the asking of an accused. He undertakes to examine the witnesses without any delay so as to expedite the trial and opposed the grant of bail in favour of the appellant at this stage.

06. Heard, perused the record and considered.

07. As per prosecution case, two brothers, Anil Parihar and Ajeet Parihar had been killed by the use of sophisticated weapons by the terrorists of proscribed terrorist organization Hizub-ul-Mujahidin (HM) at Kishtwar on

01.11.2018 and a case was registered at Police Station Kishtwar vide FIR No.290/2018 for the commission of offences punishable under sections 302/120-B/109/34 RPC, 16/17/18/19/20/38/39/40 of UA(P) Act and 25(1A) and 27 of the Arms Act. The investigation of this case was handed over to National Investigating Agency (NIA) which re-registered the case as RC- 36/2018/NIA/DLI. After investigation of the case, the charge sheet was laid before the Designated NIA Court at Jammu. The appellant was charge sheeted vide order dated 05.07.2021 by the trial Court for the commission of offences punishable under sections 19/39 of UA(P) Act, with the accusations, 4 that he had extended logistic support like shelter and food to the militants, who committed the gruesome murder of Parihar brothers.

08. The killings in the instant case was the result of hatching of a conspiracy by all the accused to accomplish the goal to mark their presence felt in the area, thereby reviving militancy in the region and that these persons were involved in a series of other attacks in the area as well including snatching of riffles and killings. Some of the militants were reported to have been neutralized later in the encounter with the security forces. The charge sheet has been laid on 16.05.2020 and the charges were framed by the trial Court on 30.06.2021 against the appellant herein for the commission of offences punishable under sections 13/19/39 of UA(P) Act and the co- accused under other offences. It was alleged that the appellant along with accused Nos. 5 and 7 had provided logistic support to HM terrorists, accused Nos.1 and 2 during the process of carrying out the terrorist activities as well as while hiding themselves, in order to avoid their arrest, after carrying out the murder of Parihar brothers.

09. The appellant had been charge sheeted for the commission of offences punishable under sections 13/19/39 of UA(P) Act on 30.06.2021 and since then, admittedly, only two witnesses have been examined by the prosecution. The appellant has raised the plea of grant of bail mainly on the ground that he has only been charged to have harboured the militants under the Unlawful Activities (Prevention) Act, 1967 and under no other offences in the case, as such, there were only two witnesses PW Nos.40 and 45 who are supposed to depose his involvement in the case, who are not being examined by the prosecution. 5

10. The trial Court holding that the embargo contained under section 43- D(5) of UA(P) A, is attracted in the present case, as such, it cannot be held, having regard to the material on record, that the appellant/accused is not ‘prima facie’ involved in the commission of offences punishable under UA(P) Act. Prima facie, there are reasonable beliefs that the allegations against the accused are true. The prosecution before the trial Court took plea that the prosecution could examine only two witnesses due to COVID-19 pandemic. It has been recorded that the statements of 20 witnesses recorded during the investigation have been admitted by accused Nos.4 to 7 including the appellant herein.

11. Learned counsel for the appellant has raised only two issues to be considered by this Court, firstly, that PW-40 who has been cited to prove the same facts to which he had turned hostile in another case against the accused including the appellant and secondly, that there was inordinate delay in the trial of the case.

12. It is always the prerogative of the prosecution, obviously, subject to the control of proceedings by the trial Court, to examine the witnesses during the trial. The prosecution cannot be supposed to examine a particular witness, as wished by one of the accused, out of turn, unless ordered so by the Presiding officer of the trial Court..

13. On finding that over a period of one year, just two prosecution witnesses were examined by the prosecution in an important case of double murder, we are of the opinion that the speed as required for the trial of a criminal case is not found and the prosecution has certainly been sluggish in not examining the witnesses at a prompt speed. Had even, two witnesses used to be examined in a month, the prosecution would have succeeded to examine 6 at least 24 prosecution witnesses, over a period of one year. The trial Court should take note of the provisions of sections 167, 209, 225 to 235, 309, 317 of the Code of Criminal Procedure, collectively or independently of each other, which spell out expressly about the speedy trial, to avoid undue delay, within a reasonable time. It should be borne in mind that crucial provision of Article 21 of the Constitution of India, is a sacred concept of protection, to the life and liberty of the persons.

14. The trial Court has rightly rejected the application moved by the appellant for the reason that the trial Court had no evidence before it to make an opinion, particularly, in the face of the embargo with regard to bail, as it could not come to the conclusion that the appellant was not involved in the commission of the offence. The impugned order passed by the trial Court is reasoned and we are of the opinion that intervention into the impugned order is not required by this Court invoking appellate jurisdiction. The appeal is, thus, found to be misconceived and is liable to be rejected. As a sequel to the aforesaid reasons, the appeal is dismissed. Before parting with this order, the respondent-agency is impressed upon, to examine the prosecuting witnesses in the case at a prompt speed so as to conclude the trial expeditiously, which is otherwise, in the interest of not only the accused but also in the interest of victims of the crime.

15. Disposed of. Jammu 25.11.2022 Eva (MA Chowdhary) (Sanjeev Kumar) Judge Judge Whether the order is reportable? Yes/No. Whether the order is speaking? Yes/No.