Jharkhand High Court
Jai Prakash Singh Bhuiyan vs Union Of India Through National ... on 5 January, 2024
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Ambuj Nath
Cr. Appeal (D.B.) No. 14 of 2021
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Against the order dated 13.10.2020 passed in Misc. Cr. Application No. 497 of 2020 corresponding to Special (NIA) Case No. 02/2018 (RC02/2018/NIA/DLI) by the learned Judicial Commissioner cum Special Judge, NIA at Ranchi.
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Jai Prakash Singh Bhuiyan, S/o late Guru Charan Singh, R/o Hill Chowk Torpa, P.O. Torpa, P.S. Torpa, District-Khunti. ....Appellant Versus Union of India through National Investigation Agency having its office at NIA Camp office, Quarter No. 305, Sector-II, P.O. & P.S. Dhurwa, District-Ranchi, Jharkhand. .....Respondent Coram: THE HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY THE HON'BLE MR. JUSTICE AMBUJ NATH
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For the Appellant : Mr. Rajeev Kumar, Advocate
: Mr. Amlan Palit, Advocate
For the NIA : Mr. Amit Kumar Das, Special P.P.
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C.A.V. Order
Heard Mr. Rajeev Kumar, learned counsel for the appellant and Mr. Amit Kumar Das, learned Special P.P. NIA.
2. This appeal is directed against the order dated 13.10.2020 passed in Misc. Cr. Application No. 497 of 2020 corresponding to Special (NIA) Case No. 02/2018 (RC02/2018/NIA/DLI) by the learned Judicial Commissioner cum Special Judge, NIA at Ranchi whereby and whereunder the prayer for bail of the appellant has been rejected.
3. The prosecution case arises out of a written report of Bindeshwari Das, Officer-in-Charge of Bero P.S. to the effect that a secret information was received on 10.11.2016 that the supremo of PLFI for the purpose of depositing his ill- gotten money of proceeds of crime realized as extortion had sent it through his associates for depositing in the Bank account for converting into white through a Safari vehicle bearing registration no. JH01Y-2898 to SBI, Bero Branch. After making a station diary entry and on the basis of the directives of the superior authorities the informant along with other Police personnel went to SBI, Bero Branch for verification of the said information. It is alleged that at about 3:15 P.M. the informant and his associates waited in ambush and in the meantime having seen the Police party 3-4 persons attempted to flee away and while one of the persons was apprehended from the campus of the Bank three other persons were apprehended while boarding on the Safari vehicle bearing registration no. JH01Y2898. On query the apprehended accused persons disclosed their name as Binod Kumar, Chandra Shekhar Kumar, Nand Kishore Mahto and Mohan Kumar. A search was conducted in presence of independent witnesses and one bag having 16 bundles of currency note of Rs. 1,000/- total amounting to Rs.
2 Cr. Appeal ( D.B.). No. 14 of 2021 16,00,000/- was recovered from the possession of Binod Kumar and a mobile phone was also recovered from him. It has been alleged that an amount of Rs. 38,000/- was recovered from the possession of co-accused Chandra Shekhar Kumar along with deposit slips of various dates and one deposit slip of Rs. 16,00,000/- along with two mobile phones. It has also been alleged that total currency of Rs. 9,00,000/- was recovered from the possession of co-accused Nand Kishore Mahto and two mobile phones were recovered from Mohan Kumar @ Rajesh Kumar. None of the apprehended accused persons could show any documents with respect to the recovered currency notes and co-accused Binod Kumar had confessed that PLFI Supremo Dinesh Gope had instructed him over mobile to deposit the extorted amount of Rs. 25,38,000/- in the name of the Petrol Pump of co-accused Chandra Shekhar Kumar. All the articles were seized in presence of independent witnesses and a seizure list was also prepared.
Based on the aforesaid allegations Bero P.S. Case No. 67/2016 was instituted for the offences punishable u/s 212, 213, 414, 34 of the I.P.C., Section 13, 17, 40 of the UA(P) Act, 1967 and Section 17(ii) of the CLA Act. On completion of investigation charge-sheet was submitted against Vinod Kumar @ Binod Kumar, Chandra Shekhar Kumar, Nand Kishore Mahto and Mohan Kumar @ Rajesh Kumar for the offences punishable u/s 212, 213, 414 and 34 of the I.P.C., Section 13, 17 and 40 of the UA(P) Act, 1967 and Section 17(ii) of the CLA Act.
Consequent to the order of the Government of India, Ministry of Home Affairs vide Order No. 11011/51/2017-IS, IV dated 16.01.2018, the National Investigation Agency had taken over the investigation of the case and consequently the First Information Report was re-registered as RC- 02/2018/NIA/DLI. In course of investigation a supplementary charge-sheet was submitted by the NIA against several accused persons including the appellant.
4. It has been submitted by Mr. Rajeev Kumar, learned counsel appearing for the appellant, that after the NIA had taken over investigation of Bero P.S. Case No. 67/2016, the FIR was re-registered against Binod Kumar, Chandrashekhar Kumar, Nand Kishore Mahto, Mohan Kumar @ Rajesh Kumar, Yamuna Prasad @ Yamuna Prasad and Dinesh Gope. The first supplementary chargesheet was submitted against 11 accused persons but the name of the appellant did not figure in the said chargesheet. It has been submitted that the appellant has figured as an accused subsequently on the theory of he being involved in channelizing the levy amount illegally obtained by Dinesh Gope ( A-
6) into the account of one of the wives of Dinesh Gope and her associates though not a single incriminating material was recovered from the appellant. Mr. Rajeev Kumar has further submitted that no prima facie case is made out against the 3 Cr. Appeal ( D.B.). No. 14 of 2021 appellant as such the embargo put under section 43(D-5) of UAP Act is not attracted. He has also stated that the appellant has spent a considerable time in custody.
5. Mr. Amit Kumar Das, learned Special P.P., NIA, has submitted that the appellant has essayed an important role in the channelizing of the levy amount at the instance of Dinesh Gope (A-6). It has been submitted that after the corroboration of the CDR analysis, disclosure of co-accused persons and statements of several witnesses, it has come to light that on the direction of Dinesh Gope ( A-6), the appellant along with co-accused Amit Kumar @ Amit Kumar Jaiswal ( A-16) used to transfer/deposit the levy amount recovered from Dinesh Gope ( A-6) in the account of Hira Devi @ Anita Devi ( A-14) and her associates through various banking channels using Pragya Kendra Operators. The evidence of the protected witnesses, X-5, X-7, X-8, X-11, X-12 and X-13 establishes the complicity of the appellant in the act of channelizing ill-gotten money to different accounts.
6. Mr. Rajeev Kumar, learned counsel appearing for the appellant, by way of reply has submitted that though the CDR record claims that the appellant had visited Saranda and Kolkata but the same has been contradicted by the certificate issued under section 65B Evidence Act. It has been submitted that the allegation of the appellant of taking care of the school of Dinesh Gope (A-6) is also falsified by the fact that the concerned school is a middle school affiliated to the Government of Jharkhand. It has been stated that the appellant does not have any criminal antecedent as though several cases were lodged against him but all have ended in acquittal.
7. After having heard the learned counsel for the respective sides we have also gone through the various affidavits filed and the documents appended thereto.
8. The name of the appellant figures in the second supplementary chargesheet wherein he has been arrayed as A-15. The role of the appellant has been depicted in para 17.18 of the second supplementary chargesheet, which reads as follows:-
17.18: Offences established agaisnst accused Jaiprakash Singh Bhuiyan ( A-15): It is established that A-15 being an associate of PLFI , is well acquainted with the facts that A-6 is a terrorist and chief of PLFI and collects/raises levy through extortion. A-15 has criminally conspired with the members/associates of PLFI, an Unlawful Association and terrorist gang proscribed by the State of Jharkhand, namely A-6, A-13, A- 14 & A-16. Although A-15 had surrendered earlier before the Jharkhand State Government as a PLFI cadre, but he continued to be an active member of PLFI, a terrorist gang. A-15, on the direction of A-6 used to take care of the school i.e. Vidhya Vihar Public School, Garai, Rania, Distt-
Khunti, alleged to belonging to A-6. On direction of A-6, A-15 along with A-16, used to transfer/deposit levy amount received from A-6, in the 4 Cr. Appeal ( D.B.). No. 14 of 2021 accounts of A-14 (Allahabad Bank A/c No. 50484783145), Dipak Majumdar ( UBI A/c No. 1401010068217), Sandhya Majumdar ( Bandhan Bank A/c No. 50170016481037) and Nasir Ahmad Khan ( Federal Bank A/c No. 11570200066404) through various banking channels by using Pragya Kendra operatives. Investigation revealed that within a span of 11 months, A-15, along with A-16, had transferred/deposited approx. Rs.15,75,000/- which was derived or obtained from A-6. Therefore, A-15 was instrumental in channelizing the levy amount into legitimate means by depositing/transferring the same in the bank accounts of A-14 and her associates. A-15, with the association of A-6, A-13, A-14 and A-16, was deeply involved in the larger conspiracy and in the commission of the instant crime and was channelizing the extorted amount as per the larger conspiracy of A-6. Thereby, Jaiprakash Bhuiyan (A-15) committed offences under sections 120B of the IPC, Sections 18, 20 & 21 of the UA(P) Act and section 17(i), (ii) of the CLA Act, 1908".
9. It has also been stated in the second supplementary chargesheet that the appellant was an active member of PLFI and in spite of his surrender under the surrender policy of the Government of Jharkhand he continued to remain an active member of PLFI. Some of the protected witnesses, X-5, X-6, X-7, X-8, X- 9, X-10, X-11, X-12 and X-13 have in their statements recorded under section 164 Cr.P.C. disclosed that the appellant and Amit Kumar @ Amit Jaiswal used to deposit the extorted money through the operators of Pragya Kendra in the bank account of Hira Devi @ Anita Devi ( A-14), Dipak Majumdar, Sandhya Majumdar and Nasir Ahmad Khan for channelizing the extorted money into legitimate means.
10. The major charge, which has been levelled against the appellant, is that of being involved in a larger conspiracy along with several other co-accused persons in channelizing the extorted money of Dinesh Gope (A-6) into the account of Hira Devi @ Anita Devi (A-14) and other persons. Admittedly, there is no recovery of any incriminating articles from the possession of the appellant. The name of the appellant did not figure either in the reregistered FIR of the NIA or in the first supplementary chargesheet.
11. Mr. Amit Kumar Das, learned Special P.P., NIA, has referred to the case of NIA Vs. Zahoor Ahmad Shah Watali Vs. reported in (2019) 5 SCC 1 and the relevant is quoted hereinunder:-
"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 5 Cr. Appeal ( D.B.). No. 14 of 2021 offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable 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. Nevertheless, we may take guidance from the exposition in Ranjitsing Brahmajeetsing Sharma, wherein a three-Judge Bench of this Court was called upon to consider the scope of power of the Court to grant bail. In paras 36 to 38, the Court observed thus : (SCC pp. 316-17) "36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the court to record such a finding? Would there be any machinery available to the court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?
37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on record only for grant of bail and for no other purpose.
38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. ... What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea."
And again in paras 44 to 48, the Court observed : (SCC pp. 318-20) "44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.
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45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.
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.
47. In Kalyan Chandra Sarkar v. Rajesh Ranjan this Court observed : (SCC pp. 537-38, para 18) '18. We agree that a conclusive finding in regard to the points urged by both the sides is not expected of the court considering a bail application. Still one should not forget, as observed by this Court in Puran v. Rambilas : (SCC p. 344, para 8) "8. ... Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. ... That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated." We respectfully agree with the above dictum of this Court. We also feel that such expression of prima facie reasons for granting bail is a requirement of law in cases where such orders on bail application are appealable, more so because of the fact that the appellate court has every right to know the basis for granting the bail. Therefore, we are not in agreement with the argument addressed by the learned counsel for the accused that the High Court was not expected even to indicate a prima facie finding on all points urged before it while granting bail, more so in the background of the facts of this case where on facts it is established that a large number of witnesses who were examined after the respondent was enlarged on bail had turned hostile and there are complaints made to the court as to the threats administered by the respondent or his supporters to witnesses in the case. In such circumstances, the court was duty-bound to apply its mind to the allegations put forth by the investigating agency and ought to have given at least a prima facie finding in regard to these allegations because they go to the very root of the right of the accused to seek bail. The non-consideration of these vital facts as to the allegations of threat or inducement made to the witnesses by the respondent during the period he was on bail has vitiated the conclusions arrived at by the High Court while granting bail to the respondent. The other ground apart from the ground of incarceration which appealed to the High Court to grant bail was the fact that a large number of witnesses are yet to be examined and there is no likelihood of the trial coming to an end in the near future. As stated hereinabove, this ground on the facts of this case is also not sufficient either individually or coupled with the period of incarceration to release the respondent on bail because of the serious allegations of tampering with the witnesses made against the respondent.'
48. In Jayendra Saraswathi Swamigal v. State of T.N. this Court observed :
(SCC pp. 21-22, para 16) '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 and Gurcharan Singh v. State (UT of Delhi) and 7 Cr. Appeal ( D.B.). No. 14 of 2021 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.'"
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.
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 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."
12. In Union of India Vs. K.A. Najeeb, reported in (2021) 3 SCC 713, it has been held as follows:-
"18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected.
19. Yet another reason which persuades us to enlarge the respondent on bail is that Section 43-D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS Act. Unlike the NDPS Act -10- Cr. Appeal (D.B.) No. 514 of 2020 where the competent court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under UAPA. Instead, Section 43-D(5) of the UAPA merely provides another possible ground for the competent court to refuse bail, in addition to the well-settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion, 8 Cr. Appeal ( D.B.). No. 14 of 2021 etc. Conclusion
20. In light of the above discussion, we are not inclined to interfere with the impugned order. However, we feel that besides the conditions to be imposed by the trial court while releasing the respondent, it would serve the best interest of justice and the society at large to impose some additional conditions that the respondent shall mark his presence every week on Monday at 10 a.m. at the local police station and inform in writing that he is not involved in any other new crime. The respondent shall also refrain from participating in any activity which might enrage communal sentiments. In case the respondent is found to have violated any of his bail conditions or attempted to have tampered the evidence, influence witnesses, or hamper the trial in any other way, then the Special Court shall be at liberty to cancel his bail forthwith. The appeal is accordingly dismissed subject to the above stated directions."
13. The judgment of "Union of India versus K.A. Najeeb", (supra) has been followed in the case of "Ashim @ Asim Kumar Haranath Bhattacharya @ Asim Harinath Bhattacharya @ Aseem Kumar Bhattacharya versus National Investigation Agency", reported in (2022) 1 SCC 695, wherein it has been held as follows:
"9. We have to balance the nature of crime in reference to which the appellant is facing a trial. At the same time, the period of incarceration which has been suffered and the likely period within which the trial can be expected to be completed, as is informed to this Court that the statement of PW 1/de facto complainant has still not been completed and there are 298 prosecution witnesses in the calendar of witness although the respondent has stated in its counter-affidavit that it may examine only 100 to 105 witnesses but indeed may take its own time to conclude the trial. This fact certainly cannot be ignored that the appellant is in custody since 6-7- 2012 and has completed nine-and- half years of incarceration as an undertrial prisoner.
10. This Court has consistently observed in its numerous judgments that the liberty guaranteed in Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial is imperative and the undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge him on bail.
11. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice."
14. One of the co-accused-Jitendra Kumar has been granted bail by this Court in Cr. Appeal (DB) No. 514 of 2020.
15. We are conscious of the fact that the appeal of one of the co-accused namely Naveen Bhai Jayanti Bhai Patel has been dismissed in Cr. Appeal (DB) No. 556 of 2020 but the case of the present appellant stands on a much better footing than that of the said accused. Moreover the appellant has suffered 9 Cr. Appeal ( D.B.). No. 14 of 2021 incarceration since 2.3.2020 and is on the verge of completing four years in custody.
16. So far as the antecedents of the appellant are concerned, it appears that he has been acquitted in all the cases.
17. Based on what has been stated above, we are inclined to admit the appellant on bail.
18. Accordingly, the impugned order dated 13.10.2020 passed in Misc. Cr. Application No. 497 of 2020 corresponding to Special (NIA) Case No. 02/2018 (RC02/2018/NIA/DLI) passed by the learned Judicial Commissioner cum Special Judge, NIA at Ranchi is hereby quashed and set aside and the appellant is directed to be released on bail on furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand) only with two sureties of the like amount each to the satisfaction of learned Judicial Commissioner cum Special Judge, NIA at Ranchi in Special (NIA) Case No. 02/2018 (RC02/2018/NIA/DLI) arising out of Bero P.S. Case No. 67/16 with a further condition that the appellant shall remain physically present before the learned trial court on each and every date till the conclusion of the trial.
19. This appeal stands allowed.
( Rongon Mukhopadhyay, J) ( Ambuj Nath,J) High Court of Jharkhand at Ranchi Dated, the 5th January, 2024 Rakesh/NAFR