Jharkhand High Court
Shiva Nayak vs The State Of Jharkhand on 15 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.1046 of 2023
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Shiva Nayak .... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant : Mr. Mohit Prakash, Advocate Mrs. Vani Kumari, Advocate For the State : Mrs. Nehala Sharmin, Spl. P.P.
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06/Dated: 15.02.2024
1. The instant appeal preferred under Section 21(4) of the National Investigation Agency Act, 2008 is directed against the order dated 06.05.2023 passed in Misc. Cr. Application No.374 of 2023 by the Addl. Sessions Judge-II, Latehar, in connection with Mahuadanr P.S. Case No.35 of 2015, registered for the offence under Sections 365, 367, 368, 370, 371 and 372 of the IPC and Section 26 of the Juvenile Justice Act, whereby and whereunder, the prayer for bail of the appellant has been rejected.
2. It has been submitted on behalf of the appellant that although, the prayer for bail of the appellant was rejected thrice, as such, the present bail application is not on merit, rather, it is based upon two grounds, i.e.,
(i) The statement of one of the victim girl as recorded under Section 164 of the Cr.P.C., wherein, the name of the present appellant has not been disclosed and;
(ii) The period of custody.
3. Learned counsel appearing for the appellant, based upon the 2 aforesaid ground, has submitted that taking into consideration the period of custody, the impugned order may be interfered with.
4. While, on the other hand, learned Spl. P.P. appearing for the respondent-State has vehemently opposed the prayer for regular bail by submitting that the impugned order suffers from no error.
5. Such submission has been made, based upon the ground that the prayer for bail of the appellant has already been rejected the day when these offences were not under the scheduled offence as per the schedule of the N.I.A., which would be evident from the nomenclature of the bail applications as referred in the impugned order being B.A. No.5393 of 2019, B.A. No.7951 of 2020 and B.A. No.10553 of 2021.
6. The submission has been made so far as the period of custody is concerned that taking into consideration the nature of allegation, since, one of the victims is still traceless, hence, there may not be consideration only on the ground of custody. Moreover, the trial is in progress and the case is at the stage of evidence. Therefore, one of the victims since has not been traced and the trial is in progress, therefore, it would not be proper to interfere with the impugned order so that the appellant may not be released from the judicial custody.
7. We have heard the learned counsel for the parties and gone across the finding recorded by the learned Court while considering the prayer for regular bail of the appellant as also the case diary.
8. Since, the leaned counsel for the appellant, at the outset, has submitted that on merit the prayer for bail application was already 3 rejected thrice. The reference of the bail application has already been referred in the impugned order.
9. It needs to refer herein that the day when the prayer for regular bail was rejected, the offences under Sections 365, 367, 368, 370, 371 and 372 of the IPC and Section 26 of the Juvenile Justice Act, were not under the scheduled offence of the schedule contained in the N.I.A. Act, 2008.
10. The reason to refer this fact is that the prayer for regular bail of the appellant was rejected the day when the said offence was not considered to be so grave and now we are dealing with the said offence particularly Section 370 IPC, when the Section 370 IPC has been inserted in the scheduled offence of the NIA Act, 2008. Therefore, the parameter to consider the prayer for bail is having more bearing considering the nature of allegation.
11. Herein, admittedly one of the victim girl is still traceless for the last 15 years.
12. The allegation against the appellant, although, no need to refer herein, since we are not dealing with the merit of the issue but since, we are considering the prayer on the ground of custody, the same is being referred herein.
13. The allegation is against the appellant that he is the person who has carried the two victims. One although has been recovered and another is still traceless.
14. The question of custody cannot be taken as a ground to enlarge the petitioner/appellant on bail by interfering with the 4 impugned order, rather, the reason to interfere with the impugned order, will be that if any error apparent on the face of the order will be pointed out.
15. No such error has been pointed out, save and except, the issue of custody in a case where the three witnesses have already been examined out of 14 charge-sheeted witnesses.
16. This Court, considering the aforesaid fact and taking into consideration the fact that thrice the bail application of the appellant was rejected, hence, is of the view that the impugned order requires no interference.
17. Accordingly, the instant appeal stands dismissed.
(Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) Rohit/-