Jharkhand High Court
Suresh Yadav @ Sirish Yadav vs Union Of India Through National ... on 10 December, 2024
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 1693 of 2023
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Suresh Yadav @ Sirish Yadav, aged about 35 years, son of
Bilash Yadav, resident of village Chani, P.O. Lawalong, P.S.
Lawalong, District Chatra, Jharkhand.
... ... Appellant
Versus
Union of India through National Investigation Agency having its
office at N.I.A. Camp office, Quarter No.305, Sector-II, P.O.
Dhurwa, P.S. Dhurwa, District Ranchi, Jharkhand.
... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Indrajit Sinha, Advocate
: Mr. Akhouri Awinash Kumar, Advocate
: Ms. Ashwini Priya
For the State : Mr. Amit Kumar Das, Advocate
: Mr. Saurav Kumar, Advocate
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C.A.V. on 21/11/2024 Pronounced on 10/12/2024
Per Sujit Narayan Prasad, J.:
Prayer
1. The instant criminal appeal has been preferred on behalf of the appellant under Section 21(4) of the National Investigation Agency Act,2008 for setting aside the order dated 02.09.2023 passed in Misc. Criminal Application No. 2021 of 2023 by learned Additional Judicial Commissioner-XVI-cum Special Judge, NIA, Ranchi whereby and whereunder the prayer for bail, in connection with Special NIA Case No. 01/2019 (RC CaseNo.13/2019/NIA/DLI) arising out of Balumath P.S. Case No. 225 of 2018 registered under Sections 25(1-A) 26(2) and of 35 of Arms Act, under Section 17 (i) (ii) of CLA Act and under 1 Sections 10 and 13 of the Unlawful Activities (Prevention) Act, 1967, has been rejected.
Factual Matrix
2. The prosecution case, as per the First Information Report, in brief is that the case is pertaining to the incident in which people's liberation front of India PLFI members including the Area commander of PLFI for Balumath, District- Latehar assembled on 03.12.2018 to conduct an unlawful act for which a meeting amongst members of people's liberation front of India (PLFI) was being held in the Titir Mahua area of Balubhang under the jurisdiction of Police station Balumath. On the basis of information, a team was formed under the supervision of Mr. Nitin Khandelwal (then SDPO Balumath), which comprised of Quick Action Team of 11th Battalion, 133rd Battalion and 214th Battalion of Central Reserve police force and Shri Sanjay Oroan, officer in charge of Herhanj police station was deputed to conduct a search at the suspected place. The team comprising of above cited police personnel and CRPF personnel reached the spot at around 16.15 Hrs. On seeing the police party, People's Liberation Front of India (PLFI) commander/ personnel tried to escape from the site, but due to the agility of the police personnel, four perosns namely (1) Gulab Kumar Yadav (2) Ravi Yadav @ Amit Ji (3) Pawan Kumar Yadav and (4) Rakesh Kumar Paswan @ Aryan Ji were arrested from the spot. On conducting personal search of the above mentioned four 2 accused persons, arms and ammunitions were recovered from their possession.
3. Subsequently, Balumath P.S. Case No. 225/18 dated 03.12.2018 was instituted in the District Latehar (Jharkhand) under section 25(1A), 26(2) and 35 of Arms Act 1959, Sections 17 (i)(ii) of CLA Act and sections 10 and 13 of Unlawful Activities (Prevention) Act, 1967 against five named accused persons and after investigation Latehar Police has submitted charge sheet against five accused persons namely (i) Santosh Yadav @ Tiger (ii) Gulab Kumar Yadav (iii) Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav @ Rabi Yadav (iv) Rakesh Kumar Paswan @ Aryan Ji and (v) Pawan Kumar Yadav.
4. Thereafter, considering the gravity of offence in the instant crime due to seizure of foreign made arms and ammunitions, the Central Government in exercise of the powers conferred under sub section 5 of section 6 r/w section 8 of the National Investigation Agency Act, 2008, vide MHA, New Delhi CTCR division order no 11011/30/2019/IS-IV dated 24.06.2019, directed NIA to take up investigation of the case and accordingly PS Balumath case no 225/2018 dated 03.12.2018 was re-registered as NIA case no RC 13/2019/NIA/DLI dated 26.06.2019 u/s 25(1-A),26(2) and 35 of Arms Act, 1959, section 17(i)(ii) of the Criminal Law Amendment Act, 1908 and section 10 and 13 of the Unlawful Activities (prevention) Act, 1967.
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5. It has also surfaced during investigation by NIA, that in August 2018, Gulab Kumar Yadav (A-1), Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav @ Rabi Yadav (A-2), Rakesh Kumar Paswan @Aryan Ji (A-3) and Pawan Kumar Yadav (A-4) were joined PLFI through the then Sub Zonal Commander of Latehar and Chatra namely Santosh Yadav @ Tiger (A-5) for extortion. In August 2018, Gulab Kumar Yadav (A-1) received two foreign made (HK33 rifle and COLT AR15 rifle) weapons and ammunition from Pramjeet Mochi @Sonu Mochi @ Sonu (A-7) through the accused/appellant Suresh Yadav @Sirish Yadav (A-
6). These weapons were used by Gulab Kumar Yadav (A-1), Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav Rabi Yadav (A-2), Rakesh Kumar Paswan @ Aryan Ji (A-3) and Pawan Kumar Yadav (A-4) on joining PLFI in Balumath Area. In the course of further investigation, it was further brought out that as per the analysis of the CDR Reports of the mobile phones of the accused persons, that they were well connected with each other during the relevant period.
6. After the investigation, NIA has filed the Chargesheet, vide number 01/2020 dated 14th February, 2020 against 7 accused persons, including the present appellant Suresh Yadav keeping further investigation continued under section-173(8) Cr.P.C.
7. Consequently, the appellant filed an application for grant of regular bail before the learned Additional Judicial 4 Commissioner-XVI-cum-Special Judge, NIA, Ranchi by taking the ground that the appellant is innocent and has committed no offence.
8. Further, learned counsel for the petitioner (appellant herein) has taken ground that the appellant is in custody since 2019, as such it is a fit case where the appellant may be directed to be released on bail.
9. Per contra learned counsel for the NIA had submitted before the learned special court that prior to this Misc. Criminal Application, the petitioner's (appellant herein) prayer for bail vide Misc. Cr. Application No. 472/2020 has been rejected by the learned special Judge NIA and as such the present application is not fit to be allowed.
10. Learned Special Judge after considering the submissions advanced by the parties, had rejected the bail application vide order dated 02.09.2023 against which the present appeal has been filed.
Submission of the learned counsel for the appellant:
11. The learned counsel for the appellant has assailed the impugned order, by which the prayer for bail of the appellant has been rejected, on the following grounds:-
(i) That the appellant has remained in custody for more than four years but without taking into consideration the same, the prayer for bail has been rejected by the learned special Court.5
(ii) Appellant in no way concerned with the PLFI group.
He was not arrested on the spot and nothing has been recovered from his conscious possession to show his proximity with the PLFI.
(iii) The appellant has falsely been implicated in this case, only on the basis of the confessional statement of the co-accused persons. Petitioner is not named in the F.I.R. So far, the seizure of the alleged arms and ammunition is concerned, nothing incriminating articles have been recovered or seized from conscious possession of the petitioner.
(iv) Even the allegations made in the charge sheet, no offence in terms of Sections 10 and 13 of U.A. (P) Act and other provisions of Arms Act and CLA Act are made out against the appellant.
(v) The appellant was arrested on 27.12.2019 and since then he is lying in jail custody. The Ministry of Home Affairs, Government of India vide an order dated 13.02.2020 has granted sanctioned for prosecution but till date only 31 witnesses, out of 60 witnesses have been examined by the NIA. Needless to say, altogether 83 witnesses, 52 documents and 10 material exhibits were there which the respondent NIA intendeds to reply upon to prove the charge against the appellant, but after pruning of 6 the witnesses by NIA it has become total 60 witnesses. In this regard, reliance is placed upon the judgement of Union of India v. K.A. Najeeb, reported in (2021) 3 SCC 713,
(vi) The N.I.A. who has investigated the matter and has submitted charge sheet under the U.A. (P) Act, admittedly, failed to brought any material or colour of allegation which makes out a case that the appellant being the supplier of arms and ammunition to proscribed terrorist organization PLFI.
12. 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.
Submission of the learned counsel for the respondent:
13. 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:
(i) There is specific attributability against the appellant, as would be evident from various paragraphs of the charge-
sheet, particularly, paragraph no.17.7 and 17.15.
(ii) It has come during investigation that In August 2018, Gulab Kumar Yadav (A-1) received two foreign made 7 (HK33 rifle and COLT AR15 rifle) weapons and ammunition from Pramjeet Mochi @Sonu Mochi @ Sonu (A-7) through the appellant Suresh Yadav @Sirish Yadav (A-6). These weapons were used by Gulab Kumar Yadav (A-1), Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav (A-2), Rakesh Kumar Paswan @ Aryan Ji (A-3) and Pawan Kumar Yadav (A-4) on joining PLFI in Balumath Area in August 2018.
(iii) During investigation it has been revealed against the appellant Suresh Yadav (A-6) that he being over ground worker and informer of CPI (Maoist), was an associate of accused Paramjeet Mochi @ Sonu by providing him logistic support from time to time since 2014, when Paramjeet was Zonal Commander of CPI(Maoist).
(iv) So far the direction passed by Hon'ble Apex Court in the different cases upon which reliance has been placed by the learned counsel for the appellant, the trial of the instant case is in progress and the charge-sheet has already been submitted by the respondent-NIA against the present appellant and the further investigation, in terms of Section 173(8) of Cr.P.C is continued.
(v) Further, the instant case is in advance stage and till date out of 60 witnesses, NIA has already examined 31 witnesses. Case has been taken on priority basis for 8 recording of the evidence. Releasing accused on bail may hamper prosecution evidence.
(vi) In the case of "National Investigation Agency v. Zahoor Ahmad Shah Watali" (2019) 5 SCC 1, the Hon'ble Apex Court has held that bail proceedings under the Special enactment are distinct and the Courts are duty bound to refused bail where the suspect is prima facie believed to be guilty.
(vii) It has been submitted that the Hon'ble Apex Court in the judgment rendered in "Gurwinder Singh v. State of Punjab and Another [(2024) SCC OnLine SC 109] has held that "for the offences under UA(P) Act, bail will be an exception and jail will be the rule".
14. Mr. Amit Kumar Das, learned counsel for the respondent-NIA, based upon the aforesaid grounds, has submitted that since the nature of allegation levelled against the appellant is very grave, therefore, the present appeal is fit to be dismissed.
Analysis
15. We have heard the learned counsel for the parties, perused the material available on record, the pleading made on behalf of the appellant as available in Memo of Appeal and the counter affidavit filed on behalf of the National Investigation Agency.
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16. It is evident from factual aspects that the instant case is pertaining to the incident in which people's liberation front of India PLFI members including the Area commander of PLFI for Balumath, District- Latehar assembled on 03.12.2018 to conduct an unlawful act for which a meeting amongst members of people's liberation front of India (PLFI) was being held in the Titir Mahua area of Balubhang under the jurisdiction of Police station Balumath.
17. On seeing the police party, People's Liberation Front of India (PLFI) commander/ personnel tried to escape from the site, but due to the agility of the police personnel, four perosns namely (1) Gulab Kumar Yadav (2) Ravi Yadav @ Amit Ji (3) Pawan Kumar Yadav and (4) Rakesh Kumar Paswan @ Aryan Ji were arrested from the spot. On, conducting personal search of the above mentioned four accused persons, arms and ammunitions were recovered from their possession.
18. Subsequently, Balumath P.S. Case No. 225/18 dated 03.12.2018 was instituted in the District Latehar (Jharkhand) under section 25(1A), 26(2) and 35 of Arms Act 1959, Sections 17 (i)(ii) of CLA Act and sections 10 and 13 of Unlawful Activities (Prevention) Act, 1967 against five named accused persons.
19. Thereafter, considering the gravity of offence in the instant crime due to seizure of foreign made arms and ammunitions, the Central Government in exercise of the powers 10 conferred under sub section 5 of section 6 r/w section 8 of the National Investigation Agency Act, 2008, vide MHA, New Delhi CTCR division order no 11011/30/2019/IS-IV dated 24.06.2019, directed NIA to take up investigation of the case and accordingly PS Balumath case no 225/2018 dated 03.12.2018 was re-registered as NIA case no RC 13/2019/NIA/DLI dated 26.06.2019 u/s 25(1-A),26(2) and 35 of Arms Act, 1959, section 17(i)(ii) of the Criminal Law Amendment Act, 1908 and section 10 and 13 of the Unlawful Activities (prevention) Act, 1967.
20. It has come during investigation that in August 2018, Gulab Kumar Yadav (A-1) received two foreign made (HK33 rifle and COLT AR15 rifle) weapons and ammunition from Pramjeet Mochi @Sonu Mochi @ Sonu (A-7) through the appellant Suresh Yadav @Sirish Yadav (A-6). In the course of further investigation, it was further brought out that as per the analysis of the CDR Reports of the mobile phones of the accused persons, that they were well connected with each other during the relevant period.
21. After the investigation, NIA has filed the Chargesheet, vide number 01/2020 dated 14th February, 2020 against 7 accused persons, including the present petitioner Suresh Yadav keeping further investigation continued under section-173(8) Cr.P.C.
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22. Consequently, the appellant filed an application for grant of regular bail before the learned Additional Judicial Commissioner-XVI-cum-Special Judge, NIA, Ranchi by taking the ground that the appellant is innocent and has committed no offence.
23. Learned Special Judge after considering the submissions advanced by the parties, had rejected the bail application vide order dated 02.09.2023 against which the present appeal has been filed.
24. This Court, before proceeding to examine as to whether the appellant has been able to make out a prima facie case for enlarging him on bail, deems it fit and proper to discuss some settled proposition of law and the relevant provisions of Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as Act, 1967).
25. 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 object of enactment of U.A.(P) Act is also to provide for more effective prevention of certain unlawful activities. 12
26. 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.
27. Clause (m) of Section 2 of the 1967 Act defines "terrorist organization". It is defined as an organization listed in the First Schedule. CPI (Maoist) has been listed at Item no. 34 in the First Schedule. Chapters III onwards of the 1967 Act incorporate various offences. Chapter IV has the title "punishment for terrorist act". Clause (k) of Section 2 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.
28. 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 13 is or continues to be a member of such association shall be liable to be punished.
29. Further, it would be relevant to mention the offences punishable under Sections 13 of the 1967 Act, which read thus:
13. Punishment for unlawful activities.--(1) Whoever-- (a) takes part in or commits, or
(b) 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. (2) Whoever, in any way, assists any unlawful activity of any association, declared unlawful under section 3, after the notification by which it has been so declared has become effective under sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. (3) Nothing in this section shall apply to any treaty, agreement or convention entered into between the Government of India and the Government of any other country or to any negotiations therefor carried on by any person authorised in this behalf by the Government of India.
30. Thus, it is evident that Section13 prescribes Punishment for unlawful activities. It is further evident that as per section 13 (1) Whoever 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.
31. The Hon'ble Apex Court in the case of National Investigation Agency Vrs. Zahoor Ahmad Shah Watali, reported in [(2019) 5 SCC 1] wherein at paragraph 23 it has been held by interpreting the expression "prima facie true" 14
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 23, 24, 25 and 26 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 15 satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is "not guilty" of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable 11 grounds for believing that the accusation against such person is "prima facie" true. By its very nature, the expression "prima facie true" would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of the accused "not guilty" of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act....
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 16 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.
26. Be it noted that the special provision, Section 43-D of the 1967 Act, applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof. To wit, soon after the arrest of the accused on the basis of the FIR registered against him, but before filing of the charge- sheet by the investigating agency; after filing of the first charge-sheet and before the filing of the supplementary or final charge-sheet consequent to further investigation under Section 173(8) CrPC, until framing of the charges or after framing of the charges by the Court and recording of evidence of key witnesses, etc. However, once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials 17 before the Court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge- sheet (report under Section 173 CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case.
32. It is, thus, evident from the proposition laid down by the Hon'ble Apex Court in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali (Supra) that it is the bounden duty of the Court to apply its mind to examine the entire materials on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not.
33. Further, it is settled proposition of law that at the stage of granting or non-granting of the bail, the Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise and the elaborate examination or dissection of the evidence is not required to be done at this stage. 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 Vrs. State of 18 Maharashtra, reported in (2005) 5 SCC 294. For ready reference the following paragraph of the aforesaid Judgment is being quoted herein under:-
"46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby."
34. 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 charge-sheet and other material gathered by the investigating agency during investigation.
35. Further the Hon'ble Apex Court in the case of Gurwinder Singh v. State of Punjab (2024) 5 SCC 403 has extensively considered its earlier decision in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali (supra) 19 and K.A. Najeeb (supra). Paragraph 32 of the said decision reads thus:
"32. In this regard, we need to look no further than Watali case [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 : (2019) 2 SCC (Cri) 383] which has laid down elaborate guidelines on the approach that courts must partake in, in their application of the bail limitations under the UAP Act. On a perusal of paras 23 to 24 and 26 to 27, the following 8-point propositions emerge and they are summarised as follows:
32.1. Meaning of "prima facie true":
On the face of it, the materials must show the complicity of the accused in commission of the offence. The materials/evidence must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence.
32.2. Degree of satisfaction at pre charge-sheet, post charge-sheet and post-charges -- compared:
"26. ... once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge- sheet (report under Section 173 of CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case."
32.3. Reasoning, necessary but no detailed evaluation of evidence:
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"24. ... 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."
32.4. Record a finding on broad probabilities, not based on proof beyond doubt:
"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."
32.5. Duration of the limitation under Section 43- D(5):
"26. ... the special provision, Section 43-D of the 1967 Act, applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof."
32.6. Material on record must be analysed as a "whole"; no piecemeal analysis "27. ... the totality of the material gathered by the investigating agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance."
32.7. Contents of documents to be presumed as true:
"27. ... The Court must look at the contents of the document and take such document into account as it is."
32.8. Admissibility of documents relied upon by prosecution cannot be questioned:
The materials/evidence collected by the investigation agency in support of the accusation against the accused in the first information report must prevail until contradicted and overcome or disproved by other evidence.... In any case, the question of discarding the 21 document at this stage, on the ground of being inadmissible in evidence, is not permissible."
36. This Court, on the basis of the abovementioned 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 appellant is prima facie true as compared to the opinion of accused not guilty by taking into consideration the material collected in course of investigation.
37. Counter affidavit has been filed by the respondent wherein the various accusation based upon the investigation has been stated against the present appellant.
38. It is evident that after taking over the investigation, the respondent NIA, submitted first Supplementary Charge Sheet being Charge Sheet No. 01 of 2020 dated 14.02.2020 against the accused persons including the present appellant, arraigned as accused No. A-6 under Sections 120B r/w 384, 385, 386 and 387 of the Indian Penal Code, under Sections 25(1- A), 26 & 29 Arms Act, Section 17, 18, 18B, 20 and 23 of Unlawful Activities (Prevention) Act, 1967 and Section 17 of the Criminal Law (Amendment) Act, 1908.
39. Accordingly, cognizance was taken by court of Spl.
Judge, NIA vide order dt. 14.2.2020 and after supplying police paper charge was framed against the present appellant and other six accused persons on 11.01. 2021.Presently trial of the 22 case is continuing and as per record, out of 60 witnesses 31 witnesses have been examined.
40. This Court, on appreciation of the rival submissions and in order to assess that any evidence prima facie establishing the accusation against the appellant was there or not, has thought it proper to consider the chargesheet filed against him copy of which has been appended with the petition. For ready reference the relevant paragraphs are being quoted as under:
17.7 Deposition of confessional statement by witnesses u/s 164 CrPC:
Statements of Protected witnesses (PW) P-1 and P-2 were recorded u/s 164 of CrPC. In the statement of Protected Witness 1, it is established that accused Santosh Yadav @ Tiger (A-5) had joined the CPI (Maoist) militant organization in 2003 at the cadre level but in 2007 he left the CPI (Maoist) and joined the PLFI, a terrorist organization. In December 2013, Gulab Kumar Yadav (A-1), son of Jugesh Yadav, resident of village Chani, PS Lawalong, Chatra and his other associates of PLFI were arrested by Balumath Police from the Titir Mahua forest area of Balubhang under the jurisdiction of Police Station Balumath and 02 foreign made weapons were seized from their possession. Once, Rajesh Yadav @ Kailu Yadav had told him that these weapons were given to Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav Rabi Yadav (A-2) and Gulab Kumar Yadav (A-1) by Pramjeet Mochi @ Sonu Mochi Sonu (A-7) through Suresh Yadav Sirish Yadav (A-6) Rajesh Yadav @ Kailu Yadav further informed him that Suresh Yadav @ Sirish Yadav (A-6) had given these foreign made weapons to Gulab Kumar Yadav (A-1) in his presence and he had seen the weapons from his own eyes. Suresh Yadav @ Sirish Yadav (A- 6) and 23 Pramjeet Mochi @ Sonu Mochi @ Sonu (A-7) have a very close friendship and Suresh Yadav @ Sirish Yadav (A-6) used to work as informer for Pramjeet Mochi @ Sonu Mochi @ Sonu (A-7).
P-1 further disclosed that Ravi Yadav @Amit Ji @ Ravi Kumar Yadav Rabi Yadav (A-2) and Gulab Kumar Yadav (A-1) had worked for Maoist Pramjeet Mochi @Sonu Mochi @ Sonu (A-71 in CPI (Maoist), a terrorist organization, from 2014 to 2016 before joining PLFI through Santosh Yadav @Tiger (A-5) and after sometime, they also inducted Pawan Kumar Yadav (A-4), son of Govind Yadav, resident of Heranhopa, Balumath, Latehar and Rakesh Kumar Paswan @Aryan Ji (A-3), sor. of Prakash Paswan, village Dhada, PS-Lawalong, District-Chatra in PLFI through Santosh Yadav @Tiger (A-5). Santosh Yadav @ Tiger (A-5), Gulab Kumar Yadav (A- 1), Ravi Yadav @Amit Ji @ Ravi Kumar Yadav @Rabi Yadav (A-2), Pawan Kumar Yadav (A-4) and Rakesh Kumar Paswan @ Aryan Ji (A-3) used to carry these weapons with them for extortion of levy from the contractors of the area who were engaged in construction works.
In the statement of Protected Witness-2, it is established that accused Santosh Yadav Tiger (A-5) is his cousin and he had joined militant organization CPI (Maoist) in 2003 at a cadre level. But in 2007, he left the CPI (Maoist). Further, he revealed that in 2014, he and Suresh Yadav @ Sirish Yadav (A-6) were taken by Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav (A-2) to Hariharganj Bihar, where they met Pramjeet Mochi @ Sonu Mochi @ Sonu. In August 2018, he and Gulab Kumar Yadav (A-1) went at Parsahi Talab village Chani, on the call of Suresh Yadav @ Sirish Yadav, where Pramjeet Mochi @ Sonu Mochi @ Sonu had sent weapons and bullets in a sack for Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav (A-2) and Gulab Kumar Yadav (A-1). On opening the sack, he saw that the sack had 02 black 24 colored black arms and a pouch of bullets. After checking those weapons, Gulab Kumar Yadav (A-1) took the same. On that day, Gulab Kumar Yadav (A-
1) took those weapons to his house. In his statement, he also disclosed that Santosh Yadav Tiger (A-5) was a Sub Zonal Commander of Balumath Area of PLFI, a militant organization in 2018. Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav @ Rabi Yadav (A-2) and Gulab Kumar Yadav (A-1) were also recruited in the PLFI in the year 2018 by Santosh Yadav (A-5). In December 2018, Gulab Kumar Yadav (A-1). son of Jugesh Yadav, resident village Chani, PS Lawalong, Chatra and his associates were arrested by Balumath Police in forest area of Balumath and 02 foreign made weapons were recovered from their possession. In his statement, P-2 also disclosed that these 02 foreign made weapons were brought by Suresh Yadav Sirish Yadav (A-6), son of Bilas Yadav, resident of village Chani, Post-Lawalong, Lawalong District-Chatra Jharkhand from the Commander of CPI (Magist). Errorst organization, namely Pramjeet Mochi e Sonu Mochi Sonu, son of Basudev Mochi, resident of Village Kadeh, Police Station Lawalone.
District Chatra Gulab Kumar Yadav (A-1) had received these weapons in front of him from Suresh Yadav @Sirish Yadav (A-6).
17.15 Role and activities of offences established against Suresh Yadav @ Sirish Yadav S/o Bilash Yadav A-6):
Therefore, as per the averment made hereinabove/ in the pre-paragraphs, it is established that Suresh Yadav Sirish Yadav A-6 being over ground worker && informer of CPI (Maoist), was an associate of accused Pramjeet Mochi @ Sonu Mochi Sanu (A-7). He used to facilitate Pramjeet Mochi @ Sonu Mochi @ Sonu by providing him logistic support from time to time since 2014, when Pramjeet Mochi was Zonal Commander of CPI (Maoist) Later on, Pramjeet 25 Mochi @ Sonu Mochi Sonu left CPI (Maoist) and constituted his own organisation i.e "Maowadi-2" In August 2018, A-6 took delivery of two foreign made rifles and ammunition from accused Pramjeet Mochi Sonu Mochi Sonu (A-7) and delivered those weapons to accused Gulab Kumar Yadav (A-1) for using them to carry out militant/naxalite activities by Gulab Kumar Yadav (A-1) and Rami Yadav @Amit Ji @ Ravi Kumar Yadav (A-2). Those weapons were being used by accused Gulab Kumar Yadav (A-1), Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav @ Rabi Yadav (A-2), Rakesh Kumar Paswan Aryan Ji (A-3) and Pawan Kumar Yadav (A- 4) for carrying out PLFI activities in Balumath area. Therefore, it is established that Suresh Yadav Sirish Yadav (A-6), by becoming over ground worker/informer/member of terrorist organization of CPI (Maoist), proscribed by Government of India/Jharkhand, assisted in strengthening of CPI (Maoist) and indulged in criminal conspiracy along with others namely A-1, A-2 & A-7. Thereby accused Suresh Yadav Sirish Yadav (4-6) committed offences under sections (i) 1208 r/w 384, 385, 386 & 387 of the IPC, 1860, sections 17, 188 & 20 of the UA(P) Act, 1967, Section 25 (1A), 26 & 29 of Arms Act, 1959 and sections 17 of CLA Act, 1908 (ii) Sections 18 & 23 of the UA(P) Act, 1967 (iii) Section 29 of the Arms Act, 1959 (iv) Sections 17 (i) & (ii) of CLA Act, 1908.
41. It is evident from the perusal of charge-sheet that NIA filed first supplementary charge sheet no. 01/2020 dated 14.02.2020 against Suresh Yadav (A6) and other seven accused persons u/s 120B r/w 384, 385, 386 and 387 IPC, 1860, section 25(1-A), 26 and 29 of Arms Act, 1959 and u/s 17 of CLA Act, 1908, section 17, 18, 18B, 20 and 23 of the UA(P) Act.
After obtaining Sanction for prosecution in respect of accused 26 persons A1, A2, A3, A-4. A-5, A-6 and A-7 for commission of offences under UA(P) Act, 1967 (Under sections 17, 18, 18B, 20 & 23 of the UA(P) Act, 1967) from the Competent Authority vide MHA, New Delhi Order dated 13.02.2020. Further, Sanction for prosecution in respect of accused persons A-1, A2, A 3, A-4, A- 5 and A-6 for commission of offences under Arms Act, 1959 (Under sections 25(1A), 25(1AA), 26 & 29 of Arms Act, 1959 has been obtained from the Deputy Commissioner-cum District Magistrate, Latehar, Jharkhand.
42. There is allegation against the petitioner Suresh Yadav @ Sirish Yadav A 6 that being over ground worker & informer of CPI (Maoist), he was an associate of accused Pramjeet Mochi @ Sonu Mochi Sonu (A-7) He used to facilitate Pramjeet Mochi @ Sonu Mochi @ Sonu by providing him logistic support from time to time since 2014, when Pramjeet Mochi was Zonal Commander of CPI (Maoist). Later on, Pramjeet Mochi @ Sonu Mochi @Sonu left CPI (Maoist) and constituted his own organisation i.e "Maowadi 2". In August 2018, A-6 Suresh Yadav @ Sirish Yadav took delivery of two foreign made rifles and ammunition from accused Pramjeet Mochi @ Sonu Mochi @ Sonu (A-7) and delivered those weapons to accused Gulab Kumar Yadav (A-1) for using them to carry out militant/naxalite activities by Gulab Kumar Yadav (A-1) and Ravi Yadav Amit Ji @ Ravi Kumar Yadav (A 2). Those weapons were being used by accused Gulab Kumar Yadav (A-1), Ravi Yadav @Amit Ji @ Ravi 27 Kumar Yadav @ Rabi Yadav (A-2). Rakesh Kumar Paswan @ Aryan Ji (A-3) and Pawan Kumar Yadav (A 4) for carrying out PLFI activities in Balumath area Therefore, it is established that Suresh Yadav @ Sirish Yadav (A-6). by becoming over ground worker/informer/member of terrorist organization of CPI (Maoist), proscribed by Government of India/Jharkhand, assisted in strengthening of CPI (Maoist)and indulged in criminal conspiracy along with others namely A-1, A-2 & A-7.
43. It is further evident that during investigation, statements of Protected witnesses P1 and P-2 were recorded u/s 164 of Cr.P.C. In the statement of Protected Witness 1, it is stated that accused Santosh Yadav @ Tiger (A 5) had joined the CPI (Maoist) militant organization in 2003 at the cadre level but in 2007 he left the CPI (Maoist) and joined the PLFI, a terrorist organization In December 2018, Gulab Kumar Yadav (A-1), and his other associates of PLFI were arrested by Balumath Police from the Titir Mahua forest area of Balubhang and 02 foreign made weapons were seized from their possession. Rajesh Yadav @ Kailu Yadav had told him that these weapons were given to Ravi Yadav @ Amit Ji Ravi Kumar Yadav @Rabi Yadav (A-2) and Gulab Kumar Yadav (A-1) by Pramjeet Mochi @ Sonu Mochi @ Sonu (A-7) through Suresh Yadav @ Sirish Yadav (A6). Rajesh Yadav @Kailu Yadav further informed him that Suresh Yadav @ Sinish Yadav (A-6) had given these foreign made weapons to Gulab Kumar Yadav (A 1) in his presence and he had seen the 28 weapons from his own eyes Suresh Yadav @ Sirish Yadav (A 6) and Pramjeet Mochi @ Sonu Mochi @ Sonu (A-7) have a very close friendship and Suresh Yadav @ Sirish Yadav (A-6) used to work as informer for Pramjeet Mochi @Sonu Mochi @ Sonu (A-
7).
44. P1 further disclosed that Ravi Yadav Amit Ravi Kumar Yadav Raha Yadav (A 2) and Gulab kumar Yadav (A1) had worked for Maoist Pramjeet Mochi Sonu Mochi Sanu (A 7) in CPI (Maoist), a terrorist organization. from 2014 to 2016 before joining FLFI through Santosh Yadav Tiger (A 5) and after sometime they also inducted Pawan Kumar Yadav (A4), and Rakesh Kumar Paswan Aryan Ji in PLFI through Santosh Vadas Tiger (A-5) Santosh Yadav Tiger (A 5), Gulab Kumar Yadav (A-1). Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav @ Rabi Yadav (A 2) Pawan Kumar Yadav (A 4) and Rakesh Kumar Paswan @ Aryan Ji (A-3) used to carry these weapons with them for extortion of levy from the contractors of the area who were engaged in construction works.
45. In the statement of Protected Witness 2, it has come that accused Santosh Yadav @Tiger (A-5) is his cousin and he had joined militant organization CPI (Maoist) in 2003 at a cadre level. But in 2007, he left the CPI (Maoist). Further, he revealed that in 2014, he and Suresh Yadav Sirish Yadav (A 6) were taken by Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav (A 21) to Hariharganj Bihar where they met Pramjeet Mochi @ Sonu 29 Mochi @ Sonu In August 2018, he and Gulab kumar Yadav (A-
1) went at Parsahi Talab village Chan, on the call of Suresh Yadav Sirish Yadav, where Pramjeet Mochi @ Sonu Mochi @ Sonu had sent weapons and bullets in a sack for Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav (A 2) and Gulab Kumar Yadav (A-
1). On opening the sack, he saw that the sack had 02 black colored black arms and a pouch of bullets After checking those weapons. Gulabi Kumar Yadav (A-1) took the same. On that day Gulab Kumar Yadav (A-1) took those weapons to his house.
46. In his statement, he also disclosed that Santosh Yadav Tiger (A-5) was a Sub Zonal Commander of Balumath Area of PLFI a militant organization in 2018. Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav Rabi Yadav (A-2) and Gulab Kumar Yadav (A-1) were also recruited in the PLFI in the year 2018 by Santosh Yadav (A-5) In December 2018, Gulab Kumar Yadav (A
11) and his associates were arrested by Balumath Police in forest area of Balumath and 02 foreign made weapons were recovered from their possession In his statement, P-2 also disclosed that these 02 foreign made weapons were brought by the appellant Suresh Yadav @Sinish Yadav (A-6), from the Commander of CPI (Maoist), terrorist organization, namely Pramjeet Mochi @ Sonu Mochi @ Sonu. Gulab Kumar Yadav (A-
1) had received these weapons in front of him from Suresh Yadav @Sirish Yadav (A-6).
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47. Further, the CDR Analysis of the mobile phone of the appellant/accused also revealed that the appellant/accused was well connected with other co-accused persons .The dates, time of the calls and tower location of the petitioner and aforesaid accused persons corroborated the aforesaid facts of the investigation.
48. The case has also been supported by the deposition of independent witnesses cited as protected witnesses whose statements were recorded under section 161 and 164 of Cr P.C.
49. Therefore, prima facie it appears that the appellant Suresh Yadav Sirish Yadav (A-6), by becoming worker/informer/member over ground terrorist of organization of CPI (Maoist), proscribed by Government of India/Jharkhand, assisted in strengthening of CPI (Maoist) and indulged in criminal conspiracy along with others namely A- 1, A-2 and A-
7.
50. Thus, prima-facie appears from the content of the charge- sheet that there is prosecutable evidence against the appellant which is supported by documentary as well as oral evidence of the witnesses of chargesheet.
51. The learned counsel for the appellant has emphatically contended 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.
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52. 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 and merely because the custody is there, the availability of other cogent evidence which prima facie indicates the involvement of accused/appellant in supply of Arms to the proscribed organization cannot be ignored.
53. Therefore, mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Gurwinder Singh v. State of Punjab, (supra). For ready reference the relevant paragraph is being quoted as under:
46. As already discussed, the material available on record indicates the involvement of the appellant in furtherance of terrorist activities backed by members of banned terrorist organisation involving exchange of large quantum of money through different channels which needs to be deciphered and therefore in such a scenario if the appellant is released on bail there is every likelihood that he will influence the key witnesses of the case which might hamper the process of justice. Therefore, mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail. Hence, the aforesaid argument on behalf of the appellant cannot be accepted.32
54. Further, in the case of Shoma Kanti Sen v. State of Maharashtra, (2024) 6 SCC 591 the Hon'ble Apex Court has observed that 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, 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."
55. Thus, it is settled proposition of law that any form of deprival of liberty must be justified on the ground of being reasonable, following a just and fair procedure. In the instant case as we discussed herein above that prima facie the 33 culpability of the appellant/ accused has been established on the basis investigation culminated in to charge-sheet and further the protected witnesses particularly P-1 and P-2 has corroborated the prosecution case and further the trial of the instant case is continuing wherein about 31 charge-sheeted witnesses have already been examined, therefore in the instant case, it appears that all the due procedure has been followed and taking in to consideration the reasonable ground, arrest has been made.
56. 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.
57. 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 2019 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.
58. In K.A. Najeeb's (supra), the Hon'ble Apex Court was confronted with a circumstance wherein except the respondent- accused, other co- accused had already undergone trial and were sentenced to imprisonment of not exceeding eight years therefore the Hon'ble Apex Court while considering the fact that since the respondent-accused had already served portion of the 34 maximum imprisonment i.e., more than five years, hence not interfered in order granting bail.
59. 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.
60. The Hon'ble Apex Court taking in to consideration the huge number of witnesses i.e. 276, put a pin-pointed question therein for reducing the number of witnesses by the investigating agency and when the same has been shown to be not possible then the Hon'ble Apex Court, by taking into consideration the period of custody and there is no likelihood of conclusion of the trial in near future, has not interfered in the order granting bail to the respondent-accused.
61. But here in the instant case, as per the counter affidavit 60 witnesses are there and out of 60 witnesses,31 witnesses have already been examined. Further in the instant case direct nexus has been shown by the charge-sheet and from the relevant part of charge-sheet as quoted hereinabove prima facie appears that the present appellant was involved in the alleged crime of supply of Arms to the proscribed organisation which were used by the member of the extremist organisation in the various crimes.
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62. Thus, this Court is of the view that in the facts and circumstances the judgment rendered by the Hon'ble Apex court in Union of India Vs. K.A. Najeeb(supra) will not be applicable in fact and circumstances of instant case.
63. Further it is settled proposition of law that the applicability of the judgment depends upon the facts and circumstances of each and every case and there cannot be any universal application of the judgment rather each judgment is to be decided on the basis of fact of each case. Reference in this regard may be taken from the judgment as rendered by the Hon'ble Supreme Court in Dr. Subramanian Swamy vs. State of Tamil Nadu & Ors. reported in (2014) 5 SCC 75 for ready reference the relevant paragraph is being quoted herein under :
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."
64. Further, it needs to refer herein that Hon'ble Apex Court in the case of Jayendra Saraswathi Swamigal v. State of T.N. (2005) 2 SCC 13 has observed that the considerations which normally weigh with the court in granting bail in non- bailable offences, basically they are -- the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable 36 possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under:
"16. ... The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in State v. Jagjit Singh [State v. Jagjit Singh, 1960 SCC OnLine SC 2 : (1962) 3 SCR 622 : AIR 1962 SC 253] and Gurcharan Singh v. State (UT of Delhi) [Gurcharan Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] and basically they are -- the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case." '"
Conclusion
65. Thus, on the basis of the aforesaid discussion as made hereinabove, it appears that during investigation it has come that there is direct and specific allegation against petitioner, he appears to have provided logistic support to top brass of PLFI.
66. Further, the charge sheet reveals that the appellant/accused being the over ground worker & Informer of CPI (Maoist), was an associate of accused Pramjeet Mochi (A-7) and used to facilitate him by providing him logistic support from time to time since 2014, when Pramjeet Mochi was Zonal Commander of CPI (Maoist). It has also revealed that in August 37 2018, A-6 took delivery of two foreign made rifles and ammunition from accused Pramjeet Mochi @ Sonu Mochi @ Sonu (A-7) and delivered those weapons to accused Gulab Kumar Yadav (A-1) for using them to carry out militant/Naxalite activities by Gulab Komar Yadav (A-1) and Ravi Yadav Amit Ji @ Ravi Kumar Yadav (A-2). Hence considering the allegation against this appellant which is of a very serious nature and there are evidences collected during investigation to prove the said charge as has been indicated herein above.
67. This Court, on the basis of the facts and coming to the settled position of law as referred hereinabove and the judgment rendered by the Hon'ble Apex Court in the case of Zahoor Ahmad Shah Watali (supra), is of the view that it cannot be said that the allegation levelled against the appellants is prima facie untrue.
68. 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. 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.
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69. The factual aspect of the present case which has been emphasised by the learned counsel for the appellant that so far as the status of trial is concerned 31 witnesses out of 60 witnesses have been examined.
70. It has been submitted by learned counsel appearing for the NIA that the trial is to be expedited now since the learned Special Judge is only looking after the special cases including NIA.
71. Further, the protected witnesses are to be examined and as has been submitted on behalf of the learned counsel for the NIA that the witnesses are examined and efforts will be taken for the examination of the witnesses on day-to-day basis.
72. Therefore, this Court is of the view that it will not to be just and proper to interfere with the impugned order. This Court is also of the view while coming to the aforesaid conclusion that as per the chargesheet the specific attributability has been casted upon the petitioner regarding the commission of offence said to attract the criminal offence under UA(P) Act.
73. In view of the foregoing discussions, we find no illegality in the impugned order dated 02.09.2023 passed in Misc. Criminal Application No. 2021 of 2023 by learned Additional Judicial Commissioner-XVI-cum Special Judge, NIA, Ranchi in connection with Special NIA Case No. 01/2019 (RC CaseNo.13/2019/NIA/DLI) arising out of Balumath P.S. Case 39 No. 225 of 2018, as such, we are of the view that the instant appeal lacks merit, hence, the same is hereby dismissed.
74. We make it clear that the prima facie findings recorded in this judgment are only for considering the prayer for bail of the appellant. The reasons are confined to the prayer for bail of the appellant. The same will have no bearing on the trial of the case of the appellant and co-accused.
I agree (Sujit Narayan Prasad, J.)
(Navneet Kumar, J.) (Navneet Kumar, J.)
Birendra/ A.F.R.
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