Jharkhand High Court
Suli Kandir @ Suleman Kandir @ Suli @ ... vs The State Of Jharkhand on 11 January, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
Cr. Appeal (D.B.) No.990 of 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.990 of 2023
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Suli Kandir @ Suleman Kandir @ Suli @ Suleman aged
about 26 years, son of Martin Kandir, resident of village-
Dalbhanga, P.O. & P.S.- Kuchai,District - Seraikela-
Kharsawan. ... Appellant
Versus
The State of Jharkhand ... Respondent
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CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Rajesh Kumar, Advocate
For the NIA : Mr. Amit Kumar Das, Advocate
Mr. Saurav Kumar, Advocate
For the State : Ms. Shweta Singh, A.P.P.
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th
Order No. 05/Dated 11 January, 2024
Per Sujit Narayan Prasad, J.
1. The instant appeal preferred under Section 21(4) of the National Investigation Agency Act, 2008 is directed against the order dated 16.05.2023 passed by the AJC-XVI- cum-Spl. Judge, NIA, Ranchi in Misc. Cr. Application No.1149 of 2023, (Special (NIA) Case No.02/2021) corresponding to R.C. No.02/2021/NIA/RNC, arising out of Toklo P.S. Case No.09 of 2021 registered for the offence under Sections 147, 148, 149, 353, 120B, 121, 121A, 307, 302 and 333 of the Indian Penal Code (I.P.C.), Section 3/4 of Explosive Substances Act, Section 17 of the C.L.A. Act 1908 and under Sections 16, 20, 38 & 39 of the Unlawful Activities (Prevention) Act 1967, whereby and whereunder, Cr. Appeal (D.B.) No.990 of 2023 2 the prayer for regular bail of the appellant has been rejected.
Facts
2. The brief facts of the prosecution case leading to this Criminal Appeal is that the superintendent of Police Chaibasa, West Singhbhum, received information from various sources regarding the movement of Anal Da @ Toofan Da @ Patriram Manjhi and Maharaj Pramanik @ Raj Pramanik, both senior cadres of Central committee of CPI Maoist, along with other cadres of their groups were roaming in the hilly area of Lanji Mountain, under Toklo Police Station, District- West Singhbhum and planning to execute a big incident against security forces and disrupt the development and direction of Superintendent of Police, Chaibasa and senior officials, accordingly one special operation was launched from the Darkada (Jharjhara) base camp by the troops of Jharkhand Jaguar AG-II and C/197 CRPF BN.
3. It is further alleged that when informant along with search parties reached near slope of Lanji Hill, the troops of Jharkhand Jaguar AG II were on front and leading the operation and troops of CRPF/ 197 BN was moving behind the Jharkhand Jaguar AG-II. Suddenly, at about 8.30 hours a heavy blast took place from the left flank approx. 100-150 meters on the hill from the base of Lanji Hill. In Cr. Appeal (D.B.) No.990 of 2023 3 retaliation to the blast six rounds were fired by Constable Vijay Yadav of Jharkhand Jaguar towards the hill for his self-defence when the troops heard the sound of blast all the operation team took position for a while.
4. In the meantime, Section Commander of the Jharkhand Jaguar informed through wireless set that an IED blast has taken place and five jawans of his team and one Jawan of CRPF got injured and out of them three become martyred and rest injured were rescued to Medica hospital Ranchi. Later on, one head constable also attained martyrdom after reaching Medica hospital, Ranchi, Jharkhand.
5. Accordingly, a case was registered on the basis of written report made by Sub-inspector of police Ramdeo Yadav as Toklo P.S. Case No.09 of 2021 under Sections 147, 148, 149, 353, 120B, 121, 121A, 307, 302 and 333 of the Indian Penal Code (I.P.C.), Section 3/4 of Explosive Substances Act, Section 17 of the C.L.A. Act 1908 and under Sections 16, 20, 38 & 39 of the Unlawful Activities (Prevention) Act 1967 (UA(P) Act 1967) against the thirty three named accused persons along with 20-25 unknown members of banned terrorist Organisation i.e. CPI (Maoist).
6. Later on, considering the gravity of the offence, Ministry of Home Affairs, Government of India vide order dated 20.03.2021 directed National Investigation Agency Cr. Appeal (D.B.) No.990 of 2023 4 (NIA), Ranchi to take over the investigation of the Toklo P.S.Case No.09 of 2021.
7. In compliance to the directions of the Ministry of Home Affairs, Government of India, (Order No. F.No.11011/25 dated 20.3.3021), NIA, Ranchi re-registered the aforesaid case as RC-02/2021/ NIA/RNC dated 24.03.2021 under Sections 147, 148, 149, 353, 120B, 121, 121A, 307, 302 and 333 of the Indian Penal Code (I.P.C.), Section 3/4 of Explosive Substances Act, Section 17 of the C.L.A. Act 1908 and under Sections 16, 20, 38 & 39 of the Unlawful Activities (Prevention) Act 1967 (UA(P) Act 1967) against the accused persons.
8. After obtaining the administrative approval of the competent authority the case docket and case exhibits were transferred to the NIA by the Investigating agency and accordingly investigation was taken up by the NIA.
9. On 07.09.2021 charge-sheet was submitted against 19 accused persons including the present appellant. However, at the time of submission of charge-sheet the present appellant was absconding, consequently non- bailable warrant (NBW) of arrest was issued against him and further in due process, the order under section 82 Cr.P.C. was also issued against him.
10. Later on, it is surfaced that the present appellant was arrested in connection with another case being Toklo Cr. Appeal (D.B.) No.990 of 2023 5 P.S. Case no. 01/2022 and he was lodged in Mandal Karagar at West Singhbhum. Accordingly, the present appellant was produced and further remanded in the instant case on 21.03.2022.
11. Consequently, the above-named appellant had preferred regular bail application vide Misc. Cr. Application No.1149 of 2023 before the NIA Special Court, Ranchi but the same has been rejected vide order dated 16.05.2023 against which the present appeal has been filed. Submission of the Learned Counsel for the Appellant
12. Learned counsel for the appellant has assailed the impugned order on the following grounds:-
(i) The NIA has not established through its investigation as to what terrorist act was committed by the appellant and thus no offence under Unlawful Activities (Prevention) Act can be said to be made out.
(ii) The learned court below failed to appreciate and consider that the appellant has no any nexus with extremist organization, thus the appellant cannot be brought within the ambit and scope of Act, 1967.
(iii) Appellant is quite unknown about the alleged offence and he has got no connection with said crime and he was not arrested from the place of occurrence.
Further No incriminating articles have been recovered from the possession of the appellant.
Cr. Appeal (D.B.) No.990 of 2023 6
(iv) The appellant has been arrayed as an accused in the instant case only on the basis of suspicion and police obtained his signature on blank white paper forcibly and the same has been converted into confessional statement of petitioner which has got no evidentiary value in the eye of law.
(v) The appellant has got no criminal antecedent. He is in custody since 13.3.2021 i.e. almost three years and the instant case is running at the stage of evidence and as per impugned order prosecution has examined 05 witnesses out of 148 witnesses as such there is no chance to conclude the trial in near future.
(vi) As per the judgment passed by the Hon'ble Apex Court in the case of Union of India Vs. K.A. Najeeb reported in (2021) 3 SCC 713 the personal liberty of the individual has paramount importance, hence, taking into consideration the period of custody, it is a fit case where the appellant deserves to be released from judicial custody.
13. Learned counsel for the appellant, on the aforesaid premise, has submitted that the learned court ought to have considered that aspect of the matter, while considering the prayer for regular bail, but having not been Cr. Appeal (D.B.) No.990 of 2023 7 considered, therefore, the impugned orders need to be interfered with.
Submission of the Learned Counsel for the Respondent NIA
14. While, on the other hand, learned counsel appearing for the respondent NIA has defended the impugned orders on the following grounds:-
(i) It is evident from the charge-sheer that the present appellant and Sawan Tuti are the active over ground worker of CPI Maoist banned organisation and as such provisions of UA(P) Act 1967 will be applicable in the present case.
(ii) On the basis of available disclosure statement and statement under section 161 and 164 Cr. P.C of the prosecution witnesses, it is established that absconding accused persons including the present appellant were part of the larger conspiracy hatched with association and direction of armed cadres of CPI Maoist and under the leadership of top cadres of the CPI Maoist carried out IED blast at Lanji forest resulting killing of the three police personnel and causing serious injuries to the few other Police personnel.
(iii) The appellant and others provided illegitimate source of fund through extortion from local contractors by Cr. Appeal (D.B.) No.990 of 2023 8 way of criminal intimidation knowing that such fund is to be used by various organisation.
(iv) In this case there is prima facie case made out against the appellant and chargesheet has been submitted in which cognizance has been taken and now after framing of charge case record is running for prosecution evidence. Hence, seeing the seriousness of the crime which is against sovereignty, unity, Integrity of the country, it is not fit case to enlarge the appellant on bail.
(v) The ratio of judgment relied upon by the learned counsel for the appellant as rendered by the Hon'ble Apex Court in the case of Union of India Vs. K.A. Najeeb (Supra), is not applicable in the instant case, reason being that in the aforesaid case, nature and background of the offence was different.
15. Learned counsel appearing for the respondent, on the aforesaid premise, has submitted that the impugned order requires no interference by this Court. Analysis
16. We have heard learned counsel for the parties and considered the finding recorded by learned Court in the impugned order as also the charge-sheet.
17. This Court, before proceeding to examine as to whether the appellant has been able to make out a prima Cr. Appeal (D.B.) No.990 of 2023 9 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).
18. The main objective of the Act, 1967 is to make powers available for dealing with activities directed against the integrity and sovereignty of India. As per Preamble, 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.
19. To achieve the said object and purpose of effective prevention of certain unlawful activities the Parliament in its wisdom has provided that where an association is declared unlawful by a notification issued under Section 3, a person, who is and continues to be a member of such association shall be punishable with imprisonment for a term which may extend to 2 years, and shall also be liable to fine.
20. Clause (m) of Section 2 of the 1967 Act defines "terrorist organization". It is defined as an organization listed in the First Schedule. CPI (Maoist) has been listed at Cr. Appeal (D.B.) No.990 of 2023 10 Item no. 34 in the First Schedule. Chapters III onwards of the 1967 Act incorporate various offences. Chapter IV has the title "punishment for terrorist act". Clause (k) of Section 2 provides that "terrorist act" has the meaning assigned to it under Section 15 and the terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule.
21. Further section 10(a)(i) of Act, 1967 provides that where an association is declared unlawful by a notification issued under Section 3 which has become effective under sub-section (3) of that Section, a person, who is continues to be a member of such association shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine therefore, so long as Section 10(a)(i) stands a person who is or continues to be a member of such association shall be liable to be punished.
22. At this juncture, it will be purposeful to discuss the core of Section 43D(5) of the Act, 1967 which mandates that the person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true apart from the other offences the appellant is accused of committing offences as stipulated under chapter IV and VI of UA(P) Act, 1967.
Cr. Appeal (D.B.) No.990 of 2023 11
23. The reason of making reference of the provision of Section 43D(5) of the Act that in course of investigation, the investigating agency has discovered the material against the appellant attracting the offence under various Sections of UA(P) Act. Since, this Court is considering the issue of bail based upon now also under the various sections of UA(P) Act and hence, the parameter which has been put under the provision of Section 43D(5) of the Act is also required to be considered.
24. The requirement as stipulated under Section 43D(5) of the UA(P) Act, 1967 in the matter of grant of regular bail fell for consideration before the Hon'ble Apex Court in the case of National Investigation Agency 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" as stipulated under Section 43D(5) of the Act, 1967 which would mean that the materials/evidence collated by the investigation agency in reference to the accusation against the accused concerned in the First Information Report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It has further been observed that it must be good and sufficient on its face to establish a given fact or the chain of facts constituting the Cr. Appeal (D.B.) No.990 of 2023 12 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 of the aforesaid judgment is required to be quoted herein which reads hereunder as :-
"23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is "not guilty" of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is "not guilty" of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable 11 grounds for believing that the accusation against such person is "prima facie" true. By its very nature, the expression "prima facie true" would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or Cr. Appeal (D.B.) No.990 of 2023 13 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...."
25. It is, thus, evident from the proposition laid down by the Hon'ble Apex Court in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali (Supra) that it is the bounden duty of the Court to apply its mind to examine the entire materials on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not.
26. Further, it is settled proposition of law that at the stage of granting or non-granting of the bail, the Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise and the elaborate examination or dissection of the evidence is not required to be done at this stage. Reference in this regard Cr. Appeal (D.B.) No.990 of 2023 14 may be taken from the Judgment as rendered by the Hon'ble Apex Court in the case of Ranjitsing Brahmajeetsing Sharma Vrs. State of 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."
27. 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.
28. This Court, on the basis of the abovementioned position of law and the factual aspect, as has been gathered Cr. Appeal (D.B.) No.990 of 2023 15 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.
29. Counter affidavit has been filed by the respondent is kept on record wherein the charge-sheet dated 07.09.2021 has been appended as Annexure-A.
30. It is evident from the counter affidavit based upon the material collected in course of investigation as in the chargesheet that the appellant is charge-sheeted accused (A-33) of the instant case and he is the named accused in the FIR which is mentioned at serial no.24 of the accused list of FIR named accused.
31. After investigation NIA submitted chargesheet against the appellant under section 120B, 121, 121A, 302, 307, 333 and 353 of IPC, section 3 and 4 of the Explosive Substance Act, section 16, 17, 18, 20, 38, 39 and 40 of the UA(P) Act, 1967 by keeping investigation continued against other accused persons u/s 173(8) Cr P.C.
32. Charge-sheet has been submitted after obtaining sanction for prosecution from competent authority of vide MHA order no F No.11011/25/2021/NIA dated 3.9.2021 and Deputy Commissioner vide order memo no. 360(B/ Vidhi dated 31.08.2021.
Cr. Appeal (D.B.) No.990 of 2023 16
33. Accordingly, court of Spl Judge, NIA took cognizance in charge-sheeted sections and after supply of police paper charge has been framed against the appellant and other co-accused persons. Presently case record is running for prosecution evidence.
34. It is evident from the perusal of charge-sheet that NIA in his investigation found that cadre of the CPI (Maoist) hatched conspiracy with the help of the appellant and other accused persons which is mentioned in para 17.14.05 of the chargesheet. For ready reference the aforesaid para is being quoted herein under:-
"17.14.05: Role, Activities and offences established against the absconding accused persons namely, Suleman Kandir (A-33) & Sawan Tuti (A-42):
It is established that absconding accused A-33 & A-42 at the active OGW (Over Ground Workers of CPI(Maoist), a banned terrorist organization declared by the Government of India. On the basis of available disclosure statements and statements u/s 161& 164 of Cr.P.C., it is established that absconding accused persons A-33, & A-42, were part of larger conspiracy hatched with the association and direction of armed cadres of CPT (Maoist). That, on 04.03.2021, under the leadership of A-13, A-14 & A-43, top cadres of CPI(Maoist) had conspired and carried out an IED blast at Lanji Forest Hill area and resulting in the killing of 03 police personnel and causing serious injuries to three other police personnel. Further, A-33 & A-42 has assisted the top armed cadre of CPI(Maoist) i.e.. A-13, A- 14 & A-43 and participated in the criminal conspiracy with other Cr. Appeal (D.B.) No.990 of 2023 17 members of banned terrorist organization CPI (Maoist), with intent to aid the said organization for collecting funds from illegitimate sources through extortion from the local contractors by way of criminal intimidation knowing that such funds are to be for used by terrorist organization for committing terrorist act, preparatory to the commission of terrorist act and were knowingly concealing / dishonestly retaining such extorted amount cash / proceeds of terrorism. Thereby, absconding accused persons A-33 & A-42 have committed offences u/s 120B, 121, 121 (A), 302, 307, 333 & 353 of IPC, Sections 3 & 4 of Explosive Substance Act and Section 16, 17, 18, 20, 38, 39 & 40 of UA (P) Act, 1967".
35. Thus, it appears from the aforementioned paragraph of the charge-sheet that the appellant was overground worker of the CPI Maoist a banned terrorist organisation declared by the Govt. of India and on the basis of available disclosure statement under Section 161 and 164 Cr P.C it is brought on record that the appellant was part of the criminal conspiracy hatched with association and direction of armed cadres of CPI Maoist.
36. Further, on 04.03.2021 under the leadership of top cadres of CPI Maoist had conspired and carried out an IED blast at Lanji forest hill area and resulting in the killing of the three police personnel and causing serious injuries to the three other police personnel.
37. It has also come that A-33 and A-42 has assisted the top armed cadres of CPI Maoist i.e A13, A-14 and A-43 Cr. Appeal (D.B.) No.990 of 2023 18 and participated in the criminal conspiracy with other members of the banned organisation CPI Maoist with intent to aid the said organisation for collecting funds from illegitimate sources through extortion from local contractors by way of criminal intimidation knowing that such funds are to be used by terrorist organization for committing terrorist act, preparatory to the commission of terrorist act and were knowingly concealing retaining such extorted amount cash/proceeds of terrorism.
38. Thus, it appears from the content of the charge- sheet that there is prosecutable evidence against the appellant Suli Kandir @ Suleman Kandir @ Suli @ Suleman which is supported by documentary as well as oral evidence of the witnesses of chargesheet.
39. It appears that during investigation it has come on record that the appellant is an over-Ground worker/courier of CPI (Maoist), a proscribed terrorist organisation and he is actively involved in collection of levies extortion of different amounts from the contractors.
40. Thus, it appears from record that the appellant/ accused had a clear knowledge that, CPI (Maoist) is a proscribed terrorist organization and involved in many terrorist acts across the State. Despite having such knowledge, he continued to help the said terrorist Cr. Appeal (D.B.) No.990 of 2023 19 organization and he acted in blatant contravention of laws and impair the safety and security of citizens and the State.
41. The facts disclosed by the appellant were duly corroborated during course of investigation by way of statement of witnesses and thereby prima facie the allegation as made against the accused/ petitioner appears to be true.
42. Thus, from perusal of the various annexures and paragraphs of the charge sheet, prima facie appears that the appellant has associated himself with terrorist organisation CPI (Moist) knowingly and aided the said organisation voluntarily to further its terrorist activities and collected or received funds for terrorist organisation CPI (Maoist) knowing that such funds would be used for terrorism.
43. Thus, it is evident that the appellant has link with CPI and that he was actively participating and aiding to the banned organisation. Recently, the Hon'ble Apex Court has also held in the case of Arup Bhuyan Vrs. State of Assam & Anr., reported in (2023) 8 SCC 745 that being a member of the banned organization is also an offence under the UA(P) Act.
44. Learned counsel for the appellant has taken the ground of custody and has also taken the aid of the Cr. Appeal (D.B.) No.990 of 2023 20 judgment passed by the Hon'ble Apex Court in the case of Union of India Vs. K.A. Najeeb (supra).
45. It has been contended by taking aid of the aforesaid judgment that in the instant case 148 witnesses are there and there is no probability in near future that trial will be concluded, hence, taking into consideration the period of custody, and probable delay in trial, it is a fit case where the appellant deserves to be released from judicial custody.
46. While, on the other hand, learned counsel appearing for the Respondent has seriously disputed the aforesaid fact apart from the merit that the present appellant has direct nexus in commission of offence and having a close association with the CPI (Maoist) a banned organisation.
47. The contention has been made that the judgment relied upon by the learned counsel for the appellant i.e. the judgment rendered by the Hon'ble Apex Court in the case of Union of India Vs. K.A. Najeeb (Supra), is not fit to be accepted, reason being that, in the said case, the Hon'ble Apex Court 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 the trial in near Cr. Appeal (D.B.) No.990 of 2023 21 future has not interfere in the order granting bail to the respondent-accused.
48. But here in the instant case, the appellant is closed associate by giving direct aid to the Naxal outfit. Further, on instruction, it has been submitted by the learned counsel appearing for the Respondent-state that the prosecuting authority depending upon the situation will also reduce the number of witnesses and try to conclude the trial without any unnecessary delay.
49. Further it has come on record that the appellant having nexus with the banned extremist organisation and as such, submission has been made that the release of appellants on bail would adversely affect the trial. He may influence the independent witnesses, might tamper evidence of this case and as such, his detention in judicial custody is required for the fair trial of this case and for the ends of Justice.
50. This Court, after considering the above facts and circumstance and after going through the chargesheet the appellant wherefrom it is evident that there is direct, specific and serious allegation against the appellant as he has played very prominent role in conspiracy hatched by top CPI Maoist leaders and further appellant with the help of A-1, A-3, A-14, A-43 and others have conspired, made recce of police party and provided logistic support to the top Cr. Appeal (D.B.) No.990 of 2023 22 brass of CPI Maoist which necessitated IED blast in which three police personnel were lost their lives is of the view that on merit, the case of the appellant is not fit to be considered for his release from judicial custody.
51. So far as the argument regarding reliance having been placed upon the judgment of Union of India vs. K.A. Najeeb (Supra) is concerned, this Court is of the view that in the facts and circumstances the aforesaid judgment will not be applicable herein since in the said case altogether 276 charge-sheeted witnesses were to be examined and on the pin-pointed question by the Hon'ble Apex Court, the investigating agency has submitted that there is no question of reducing the number of charge-sheeted witnesses and in view thereof and considering the period of custody, i.e., more than 5 and half years and also taking into consideration the spirit of Article 21 of the Constitution of India the hon'ble Apex Court has not interfered in the order by which the bail was granted to respondent-accused.
52. While, the fact of the instant case is that there are only 148 witnesses which is very much less in compare to the 276 witnesses of aforesaid case and further in the instant case it has been submitted by the learned counsel appearing for the state on instruction that in course of trial, the number of charge-sheeted witnesses may also be Cr. Appeal (D.B.) No.990 of 2023 23 reduced depending upon the situation and trial may be concluded in shortest time period.
53. Further, the appellant is the active member of the banned organization and he has got direct involvement in the activities of the banned organization as per the discussion made hereinabove.
54. This Court considering the aforesaid distinguishing fact in the present case by taking into consideration the active involvement of the appellant in the extremist activities being direct associate of the banned organization and further taking in to gravity of the offence, is of the view that the judgment rendered by the Hon'ble Apex Court in the case of Union of India vs. K.A. Najeeb (Supra) is not fit to be applied herein.
55. Accordingly, This Court, on the basis of the facts as referred hereinabove and coming to the provision of Section 43D(5) of the Act, 1967 as also 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.
56. In view of the foregoing discussions, we find no illegality in the impugned order dated 16.05.2023 passed in Misc. Cr. Application No.183 of 2023 by AJC-XVI-cum-Spl. Judge, NIA, Ranchi rejecting the application of the Cr. Appeal (D.B.) No.990 of 2023 24 appellant, as such order impugned requires no interference by this Court.
57. In the result, we find no merit in instant appeal, hence, the same is accordingly, dismissed.
58. Pending Interlocutory Application(s), if any, also stands dismissed.
59. It is made clear that any observation made herein will not prejudice the case of the appellant in course of trial and view as expressed by this Court is only limited to the instant appeal.
(Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) Birendra/A.F.R.