Jharkhand High Court
Shailendra Bahanda vs The Union Of India Through National ... on 28 November, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 1163 of 2024
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Shailendra Bahanda, aged about 35 years, S/o Saluka
Bahanda, Resident of Village-Billa, P.O. & P.S. - Goilkera, Dist.-
West Singhbhum, Jharkhand. ... ... Appellant
Versus
The Union of India through National Investigation Agency
... ... 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. Anjani Kumar, Advocate
For the State : Mr. Amit Kumar Das, Advocate
: Mr. Saurav Kumar, Advocate
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Order No.04/Dated: 28th November, 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 04.07.2024 passed in Misc. Criminal Application No.1840 of 2024 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. 04/2022 (RC CaseNo.03/2022/NIA/RNC) arising out of Goilkera P.S. Case No. 01 of 2022 registered under Sections 147, 148, 149, 120B, 121, 121A, 302, 307, 353, 333, 395, 396 and 397 of the Indian Penal Code; under Section 27 of Arms Act, under Section 17 of CLA Act and under Sections 16, 18, 20, 38 and 39 of the Unlawful Activities (Prevention) Act,1967, has been rejected. 1 Factual Matrix
2. The prosecution case, as per the First Information Report, in brief is that the present case is lodged on the written statement of informant Sri Gurucharan Nayak former MLA BJP from Manohar constituency from 2009 to 2014. Gist of the FIR is like that an attack was carried out on former Jharkhand MLA Gurucharan Nayak by cadres of CPI (Maoist) during a sports event organized by the Gram Vikas Samiti in West Singhbhum on the occasion of project +2 school at village Jhilarua. During the incident one bodyguard was seriously injured and two body guards namely Shankar Nayak and Thakur Hembram succumbed to their injuries while fighting with the Maoist and their personal weapons were also looted by the Maoist. Their weapons which included 02 INSAS rifles along with pouch ammunitions (200+100 Rds) and one AK 47 rifle with two magazines and 50 rounds were also looted by the CPI.
3. Subsequently, FIR No. 01/2022 dated 5.1.2022 was registered at PS Goilkera, District- West Singhbhum u/s 147, 148, 149, 120B, 121, 121A, 302, 307, 333, 353, 395, 396, 397 of IPC, Section 27 of Arms Act, section 17 of CLA Act and section 16, 18, 20, 38, 39 of the UA(P) Act against nine members of the CPI Maoist, a proscribed terrorist organisation namely Misir Besra A-14, Raghu A-34, Ashwin A-24, Chandan A-22, Mochhu A-22, Sushant A-15, Sagen A-32, Kande Honhaga A-31, Sonaram Honhaga A-13 and 10-12 other unknown persons.
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4. During investigation by the State police 06 non-FIR named accused persons namely Pradhan Korah A-1, Sunia Surin A5, Rangia Lugan A-7 were remanded in the instant crime on 28.4.2022 from case no 07/22 of P.S. Goilkera District West Singhbhum and Pusa Lugun A-4, Sriram Tubid A-2 and Mangal Singh Lugun A-9 were remanded in the instant case on 28.4.2022, from case no 08/2022 of PS Goilkera, District- West Singhbhum.
5. Whereas, four non-FIR named accused persons namely Shailendra Bahanda A-3 (present appellant) and Kujari kerai A-8 were arrested on 12.2.2022 and Kismat Korah A-10 was arrested on 07.07.2022.
6. Further, chargesheet was submitted by State police against the present appellant vide chargesheet no 15/2022 dated 12.5.2022 under Section 147, 148, 149, 120B, 121, 121A, 302, 307, 353, 395, 396, 397 of IPC, Section 27 of the Arms Act, Section 17 of the CLA Act and Section 16, 18, 20, 38, 39 of the UA(P) Act before the court of SDJM, Porahat Chaibasa and further investigation was continued under Section 173(8) of the Cr P.C against FIR named and other accused persons.
7. Taking seriousness of the alleged offence, the government of India in exercise of power conferred under sub Section 5 of Section 6 r/w Section 8 of the NIA Act, 2008 vide order no. F 11011/54/2022 CTCR division Ministry of Home Affairs Government of India, directed the NIA to take up the investigation of this case.
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8. Accordingly, in compliance with the aforesaid order NIA re-registered the FIR No. RC03/2022/NIA/RNC dated 30.6.2022 arising out of PS -Goilkera case no 01/2022 dated 05.01.2022 under Section 147, 148, 149, 120B, 121, 121A, 302, 307, 333, 353, 395, 396, 397 of the IPC, Section 27 of the Arms Act, Section 17 of the CLA Act and Section 16, 18, 20, 38, 39 of the UA(P) Act.
9. After taken up of investigation by the NIA, Pradhan Korah @ Mantri A-1, Sriram Tubid @ Shreeram Tubid A-2, Shailendra Bahanda @ Deven A-3 (appellant herein) Pusa Lugun A-4, Sunia Surin @ Amil Surin A-5 were taken into judicial custody.
10. 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.
11. Further, learned counsel for the appellant has taken ground that the appellant is in custody since 12.02.2022, as such it is a fit case where the appellant may be directed to be released on bail.
12. 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) regular bail application vide BP NO 185/2022 has been rejected by the learned sessions judge, West Singhbhum at Chaibasa, Jharkhand and thereafter Petitioner further preferred bail 4 application before the Jharkhand High court vide B.A No.8321/2022, but in the meantime National Investigating agency taken up investigation of the Goilkera PS case no 01/2022 and the case is transferred to the court of special Judge NIA consequently regular bail application being BA No 8121/2022 has been withdrawn by the petitioner, and as such the present application is not fit to be allowed.
13. Learned Special Judge after considering the submissions advanced by the parties, had rejected the bail application vide order dated 04.07.2024 against which the present appeal has been filed.
Submission of the learned counsel for the appellant:
14. 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 two years but without taking into consideration the same, the prayer for bail has been rejected by the learned special Court.
(ii) Appellant in no way concerned with the CPI maoist group. He was not arrested on the spot and nothing has been recovered from his conscious possession to show his proximity with the CPI Maoist.
(iii) Even the allegations made in the charge sheet, no offence in terms of Sections 16, 18, 20, 38 & 39 of U.A. (P) Act 5 and Sections 120B and other provisions of IPC are not made out against the appellant.
(iv) Further, the restriction imposed by Sub-Section 5 of Section 43D of the Act, 1967, per se, do not prevent constitutional quote from granting bail on the ground of violation of Part-III of the constitution of India.
(v) Further, the Hon'ble Apex Court in case of "Union of India V KA Najeeb" [(2021) 3 SCC 713] distinguished from "NIA V Zahoor Ahmad Shah Watali" [(2019) 5 SCC 1]. The Hon'ble Apex Court, in para 17 held that Section 43-D(5) of the Act, 1967 does not oust the power of constitutional Court to grant Bail when grounds of violation of Part- III of the Constitution of India. The restriction under statutes is to be harmonized with the Constitution.
(vi) The Hon'ble Apex Court in case of Union of India V KA Najeeb [(2021) 3 SCC 713] has observed in para 11 that deprivation of the personal liberty without speedy trial is not consistent with Article 21 of the Constitution of India.
Therefore, the impugned order is also in teeth of the said judgment.
(vii) 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 6 being the alleged member of the extremist organization actively taken part in alleged commission of crime.
15. 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:
16. 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. 17.2.6 and 17.7.3.
(ii) As per 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 as per charge sheet filed by the respondent-NIA against the present appellant and the further investigation, in terms of Section 173(8) of Cr.P.C is continued.
(iii) During investigation it is revealed that A-11 disclosed that Sriram Tubid (A-2), Shailendra Bahanda (A-3) (present appellant) also frequently met with the Maoists and provided information about the activities of the police. Sriram Tubid (A-2) and Shailendra Bahanda (A-3) also used 7 to make video of Martyr's Day and cultural program of Maoist.
(iv) After taking up of investigation by the Respondent-NIA, Pradhan Korah @ Mantri (A-1), Sriram Tubid @ Shreeram Tubid (A-2), the present appellant Shailendra Bahanda Deven (A-3), Pusa Lugun (A-4), Sunia Surin @ Amil Surin (A-5) were taken into custody. In their disclosure memo they fully supported case of the prosecution and narrated entire criminal conspiracy.
(v) 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. Thus, the instant appeal being devoid of merit is liable to be dismissed.
(vi) 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".
(vii) Further, the bail of co- accused Kujri Kerai (A-8) was dismissed on merits by this Hon'ble Court in Criminal Appeal (DB) 1750 of 2023, vide order dated 02.05.2024 and the bail applications of two other co-accused were dismissed as withdrawn in Criminal Appeal (DB) 991 of 8 2022, filed by Pusa Lugun (A-4) on 17.01.2023, and in Criminal Appeal (DB) 884 of 2022, filed by Pradhan Korah (A-1) on 11.01.2023, respectively.
17. Mr. Amit Kumar Das, learned counsel for the respondent-NIA, based upon the aforesaid grounds, has submitted that since the nature of allegation leveled against the appellant is very grave, therefore, the present appeal is fit to be dismissed.
Analysis
18. 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.
19. It is evident from factual aspects that the present case relates to attack on former Jharkhand BJP MLA Gurucharan Nayak by cadres of CPI Maoist during a sports event organised by the Gram Vikas Samiti in West Singhbhum on the occasion of project +2 school at village Jhilarua. During the alleged incident one bodyguard was seriously injured and two body guards Shankar Nayak and Thakur Hembram succumbed to their injuries while fighting with the Maoist and their personal weapons were also looted by the Maoist.
20. Accordingly, FIR No. 01/2022 dated 5.1.2022 was registered at P.S. Goikera, District-West Singhbhum u/s 147, 148, 149, 120B, 121, 121A, 302, 307, 333, 353, 395, 396 and 9 397 of IPC, Section 27 of Arms Act, Section 17 of CLA Act and Section 16, 18, 20, 38, 39 of the UA(P) Act against nine members of the CPI Maoist, a proscribed terrorist organisation.
21. Apart from that ten accused persons other than FIR named were arrested during investigation of the instant case. The present appellant was arrested on 12.2.2022 in the instant case along with nine co-accused persons. Consequently, Appellant has been charge-sheeted vide chargesheet no 15/2022 dated 12.5.2022 under Section 147, 148, 149, 120B, 121, 121A, 302, 307, 333, 353, 395, 396 and 397 of IPC, Section 27 of Arms Act, Section 17 of CLA Act and Section 16, 18, 20, 38, 39 of the UA(P) Act .
22. As per order F. No. 11011/54/2022 CTCR Division Ministry of Home Affairs Government of India, NIA re-registered the RC 03/2022/NIA/RNC dated 30.6.2022 arising out of PS
-Goilkera case no 01/2022 dated 05.01.2022.
23. Accordingly, the appellant filed an application for grant of regular bail before the learned Additional Judicial Commissioner-XVI-cum-Special Judge, NIA, Ranchi.
24. Learned Special Judge called upon the NIA, who vehemently opposed the prayer for bail, and after considering the submissions advanced by the parties, the learned Special Judge rejected the bail application vide order dated 04.07.2024 against which the present appeal has been filed. 10
25. 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).
26. 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.
27. 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.
28. 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 11 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.
29. 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.
30. Further, it would be relevant to mention the offences punishable under Sections 20, 38 and 39 of the 1967 Act, which read thus:
"20. Punishment for being member of terrorist gang or organisation. --Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.
38. Offence relating to membership of a terrorist organisation. -- (1) A person, who associates himself, or professes to be associated, with a terrorist organisation with intention to further its activities, commits an offence relating to membership of a terrorist organisation:12
Provided that this sub-section shall not apply where the person charged is able to prove--
(a) that the organisation was not declared as a terrorist organisation at the time when he became a member or began to profess to be a member; and
(b) that he has not taken part in the activities of the organisation at any time during its inclusion in the First Schedule as a terrorist organisation.
(2) A person, who commits the offence relating to membership of a terrorist organisation under sub-section (1), shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both.
39. Offence relating to support given to a terrorist organisation.--(1) A person commits the offence relating to support given to a terrorist organisation,--
(a) who, with intention to further the activity of a terrorist organisation,--
(i) invites support for the terrorist organisation; and
(ii) the support is not or is not restricted to provide money or other property within the meaning of Section 40; or
(b) who, with intention to further the activity of a terrorist organisation, arranges, manages or assists in arranging or managing a meeting which, he knows is--
(i) to support the terrorist organisation; or
(ii) to further the activity of the terrorist organisation; or
(iii) to be addressed by a person who associates or professes to be associated with the terrorist organisation; or
(c) who, with intention to further the activity of a terrorist organisation, addresses a meeting for the purpose of encouraging support for the terrorist organisation or to further its activity.
(2) A person, who commits the offence relating to support given to a terrorist organisation under sub-section (1) shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both."
31. The offence punishable under Section 20 is attracted when the accused is a member of a terrorist gang or a terrorist organization which is involved in terrorist act. Section 20 is not 13 attracted unless the terrorist gang or terrorist organization of which the accused is a member is involved in terrorist act as defined by Section 15. Section 20 provides for a punishment of imprisonment for a term which may extend to imprisonment for life and fine.
32. On simple reading of Section 38, the offence punishable therein will be attracted if the accused associates himself or professes to associate himself with a terrorist organisation included in First Schedule with intention to further its activities. In such a case, he commits an offence relating to membership of a terrorist organisation covered by Section 38. The person committing an offence under Section 38 may be a member of a terrorist organisation or he may not be a member. If the accused is a member of terrorist organisation which indulges in terrorist act covered by Section 15, stringent offence under Section 20 may be attracted. If the accused is associated with a terrorist organisation, the offence punishable under Section 38 relating to membership of a terrorist organisation is attracted only if he associates with terrorist organisation or professes to be associated with a terrorist organisation with intention to further its activities. The association must be with intention to further the activities of a terrorist organisation. The activity has to be in connection with terrorist act as defined in Section 15.
33. Clause (b) of proviso to sub-section (1) of Section 38 14 provides that if a person charged with the offence under sub- Section (1) of Section 38 proves that he has not taken part in the activities of the organisation during the period in which the name of the organisation is included in the First Schedule, the offence relating to the membership of a terrorist organisation under sub-section (1) of Section 38 will not be attracted.
34. Section 39 deals with the offences relating to support given to a terrorist organisation. It covers three kinds of offences under clauses (a), (b) and (c) of sub-section (1) of Section 39. The offences punishable under clauses (a), (b) and
(c) of sub-section (1) of Section 39 are attracted only when the actions incorporated therein are done with intention to further the activities of a terrorist organisation. Clauses (a), (b) and (c) are attracted only if actions/activities specified therein are done with intention to further the activities of a terrorist organisation.
35. The punishment prescribed for both the offences is imprisonment for a period not exceeding 10 years or with fine or with both. The offence under Section 20 is more serious as it attracts punishment which may extend to imprisonment for life and fine. Depending upon the gravity of offence committed under Section 38 and/or Section 39 and other relevant factors, the accused can be let off even on fine.
36. At this juncture, it will be purposeful to discuss the core of Section 43D (5) of the Act, 1967 which mandates that the 15 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.
37. 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.
38. 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 16 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 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 17 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 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 18 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 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.19
39. 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.
40. 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 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, 20 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."
41. 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.
42. 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) which deals with interpretation of Section 43D(5). 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.21
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:
"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."22
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 document at this stage, on the ground of being inadmissible in evidence, is not permissible."
43. 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.
44. Counter affidavit has been filed by the respondent wherein the part of charge-sheet has been referred.
45. It is evident from the charge-sheet that the appellant has been charge-sheeted accused (A-3) of the instant case.
46. After investigation NIA submitted chargesheet against the appellant under Section-147, 148, 149, 1208, 121, 121-A, 201, 23 302, 307, 333, 353, 395, 396, 397 of the IPC, Section 27 of the Arms act, Section 17 of the CLA Act, and Sections 16, 18, 20, 38 & 39 of the UA (P) Act.
47. Accordingly, cognizance was taken by court of Spl.
Judge, NIA and charges were framed against the present appellant. Presently trial of the case is continuing and as per affidavit, out of 119 charge-sheeted witnesses 10 witnesses have been examined till the filing of the said affidavit.
48. 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 counter affidavit. For ready reference the relevant paragraphs are being quoted as under:
"17.2.6 Facts revealed by accused Shailendra Bahanda @ Deven (A-3):
* A week before the incident of Jhilrua, Shriram Tubid A-2 told him about a meeting with Maoist with Sushant A-15, Ashwin A24, Budhram A-23, Mochhu A-22 and others in the forest Lowabeda in which it had been decided that on the occasion of foundation day of Jhilrua school, they would attack and snatch weapons from the bodyguardss of MLA Sh Gurucharan Nayak. Maoist commanders Sushant A-15 and Ashwin a-24 had asked them for cooperation and directed them to be present near the stage for videography and photography.
* He further revealed that according to the
plan on 04/01/2022he (A-3) and A-2 reached at
Jhilrua footbal ground at around 14 hours. After reaching there he also called Sonaram Borua on his 24 mobile phone to come at event to do the videography of the event but Sonaram Birua denied the same.
* During the program he started recording videos of theprogram in front of the stage and
Sriram Tubid A-2 started making videos from the mobile from outside. After the distribution of prized at around 10.00 hours in the evening Maoist started attacking and looting the weapons of Gurucharan Nayak body guards and stampede took place. He and his associates Sriram Tubid A-2 sent videos of the incident to sonaram Birua through whatsapp and telegraph. Further next day he called Sonaram Birua on his mobile number and asked him to delete all videos immediately and not to upload on any social media platform.
17.7.3 Role and offences established against accused Shailendra Bahanda @ Deven (A-3):-
Therefore, as per averments made in pre-para, it is established that A-3 became member of CPI proscribed terrorist (Maoist), a organization which is indulged in waging against Government provided support organization in to of war India and the terrorist furtherance of terrorist activities. He participated in the meeting in which conspiracy was hatched among co-accused persons with common object to assemble with deadly weapons at Project +2 High School Jhilrua to carry out terrorist attack on former MLA Gurucharan Nayak and his three Police bodyguards who were discharging their duties. A-3 participated in the incident which resulted in causing injury/ attempt to murder, personnel killing of 02 police and snatching/ looting subsequently, of Government issued arms and ammunition. He also made video of the entire incident and sent it to his friend for uploading the same in you tube channel for terrorizing police/force personnel but for screening the offender from legal punishment, before uploading in 25 you tube channel, he deliberately deleted the video with his mobile and caused to be deleted it in the mobile of his friend also. Thereby, A-3 committed offences u/s 120B r/w 147, 148, 149, 121, 121-A, 302, 307, 333, 353, 395, 396, 397, 201 of Indian Penal Code, Section, 16, 18,20, 38 and 39 of The Unlawful Activities (Prevention) Act, 1967, section 27 of Arms Act and Section 17 of Criminal Law Amendment Act, 1908."
49. It is evident from the perusal of charge-sheet that NIA in its investigation found that accused/appellant is member of CPI Maoist a proscribed terrorist organisation and he participated in the meeting in which conspiracy was hatched among co- accused persons with common object to assemble with deadly weapons at Project +2 High school Jhilrua to carry out terrorist attack on former MLA Gurucharan Nayak and his three police bodyguards who were discharging their duties. Present appellant who is arraigned as accused A-3, participated in the incident which resulted in causing injury/attempt to murder, killing of 02 police personnel and subsequently, snatching/ looting of government issued arms and ammunition.
50. It is further revealed that he also made video of the entire incident and sent it to his friends for uploading the same in youtube channel for terrorising police personnel but for the screening the offender from legal punishment, before uploading in YouTube, he deliberately deleted the video from his mobile and caused to be deleted in the mobile of his friends also.
51. It has come during investigation that according co- accused Rangia Lugun (A-7), Sajan @ Sadan Korah and Lalu 26 Mondiyam @ Sameer, it was revealed that the appellant/accused Shailendra Bahanda Deven (A-3) was part of the team of the CPI (Maoist) along with other co accused persons SriramTubid A-2, Pradhan Korah A-1, Pusa Lugun A-4, and Sunia Surin A-5.
52. Investigation has also revealed that Sriram Tubid (A-2) and the present appellant Shailendra Bahanda (A-3), frequently met with the Maoist and provided information about the activities of the police. Sriram Tubid (A-2) and Shailendra Bahanda (A-3) also used to make video of Martyr's Day and cultural program of Maoist.
53. 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 namely Sriram Tubid (A-2), Pradhan Kohra (A-1), Sunia Surin (A-5), Pusa Lugun @ Puse Lugun (A-4).
54. 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.
55. Thus, from perusal of the charge-sheet prima-facie it appears that the appellant/accused Shailendra Bahanda (A-3) was a member of CPI (Maoist), a proscribed terrorist organization, and used to attend meetings of CPI (Maoist) in various locations inside the jungles of Laobeda, Sarjamburu, etc. Further, he along with SriramTubid (A-2) used to make video recordings of meetings and other occasional programs of 27 CPI(Maoist). Furthermore, he was also present at place of occurrence, at the time of incident, the appellant / accused Shailendra Bahanda (A-3) was assigned to make video of the incident and watch over the activities of the police/force personnel during commission of the instant crime committed by the operatives of CPI (Maoist). He also sent the video of the incident to his friend for uploading it on YouTube channel but before uploading it, he again called his friend and said to delete the video. He also deliberately deleted the video in his mobile phone for screening the offenders/himself from legal punishment
56. 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.
57. Thus, prima facie appears from the aforementioned paragraph of the charge-sheet and on the basis of available disclosure statement under section 164 Cr.P.C it is brought on record that the appellant was part of the criminal conspiracy hatched with association of other persons.
58. It needs to refer herein that the bail of co- accused Kujri Kerai (A-8) was dismissed on merits by this Hon'ble Court in Criminal Appeal (DB) 1750 of 2023, vide order dated 02.05.2024 and the bail applications of two other co-accused were dismissed as withdrawn in Criminal Appeal (DB) 991 of 2022, filed by Pusa Lugun (A-4) on 17.01.2023, and in Criminal 28 Appeal (DB) 884 of 2022, filed by Pradhan Korah (A-1) on 11.01.2023, respectively.
59. 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.
60. 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.
61. Further, 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.
62. 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 12.02.2022 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.
63. 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 29 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 maximum imprisonment i.e., more than five years, hence not interfered in order granting bail.
64. Further, in K.A. 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.
65. 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.
66. But here in the instant case, as per the counter affidavit 119 charge-sheeted witnesses are there and as per the affidavit filed by the NIA 10 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 it is evident that the present appellant was a member of CPI (Maoist), a proscribed terrorist organization, 30 and used to attend meetings of CPI (Maoist) in various locations inside the jungles of Laobeda, Sarjamburu, etc. Further, he along with SriramTubid (A-2) used to make video recordings of meetings and other occasional programs of CPI(Maoist). Furthermore, he was also present at place of occurrence, at the time of incident, the appellant / accused was assigned to make video of the incident and watch over the activities of the police/force personnel during commission of the instant crime committed by the operatives of CPI (Maoist).
67. 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.
68. 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 31 the factual situation fits in with the fact situation of the decision on which reliance is placed."
69. 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 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
70. Thus, on the basis of the aforesaid discussion as made hereinabove, it appears that during investigation it has come 32 that there is direct and specific allegation against petitioner, he appears to have provided logistic support to top brass of CPI Maoist who were the perpetrator of crime and on the alleged date of occurrence he was remain present at place of occurrence and was making video of entire crime and he transferred that video to some other one to upload the video on YouTube channel. Thus, allegation against appellant is very serious in nature.
71. Further, the charge sheet reveals that the appellant/accused Shailendra Bahanda (A-3) was part of the criminal conspiracy for the commission of the assassination incident. appellant/accused Shailendra Bahanda (A-3) was part of a close-knit network and in constant close contact with other co-accused persons in this case, providing services to them in order for them carry out the terror incident in this matter.
72. This Court, on the basis of the facts and coming to the provision of Section 43D(5) of the Act, 1967 as also 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.
73. 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 33 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.
74. 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, as per the affidavit, out of 119 charge-sheeted witnesses 10 witnesses have been examined.
75. 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 related to NIA.
76. 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.
77. Therefore, this Court is of the view that it will not to be just and proper to interfere with the impugned order.
78. 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 appellant regarding the commission of offence said to attract the criminal offence under UA(P) Act.
34
79. In view of the foregoing discussions, we find no illegality in the impugned order dated 04.07.2024 passed in Misc. Criminal Application No.1840 of 2024 by learned Additional Judicial Commissioner-XVI-cum Special Judge, NIA, Ranchi in connection with Special NIA Case No. 04/2022 (RC CaseNo.03/2022/NIA/RNC) arising out of Goilkera P.S. Case No. 01 of 2022, as such, we are of the view that the instant appeal lacks merit, hence, the same is hereby dismissed.
80. 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.
(Sujit Narayan Prasad, J.) (Navneet Kumar, J.) Birendra/A.F.R. 35