Jharkhand High Court
Fuleshwar Gope vs Union Of India Through National ... on 21 March, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1 Cr. Appeal(DB) No.767/2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.767 of 2022
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Fuleshwar Gope, aged about 32 years, Son of -Shankar Gope
Resident of village- Chhotka Regre, P.O.- Lapa, P.S. - Jariyagarh,
District- Khunti, Jharkhand .... .... Appellant
Versus
Union of India through National Investigating Agency, having its office
at N.I.A. Camp office, Quarter No.305, Sector-II, P.O. Dhurwa, P.S.
Dhurwa, District Ranchi, Jharkhand 834002.
.... .... Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Balaji Srinivasan, Advocate
Mr. Niranjan Kumar, Advocate
For the NIA : Mr. Amit Kumar Das, Advocate
Mr. Saurav Kumar, Advocate
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C.A.V. on 28.02.2024 Pronounced on 21/03/2024
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 19.05.2022 passed by the learned A.J.C.-XVI-cum-Special 2 Cr. Appeal(DB) No.767/2022 Judge, NIA Ranchi, in Misc. Cr. Application No. 566 of 2022 (Special (NIA) Case No.02 of 2018) corresponding to R.C. No.02/2018/NIA/DLI dated 19.01.2018, arising out of Bero P.S. Case No.67 of 2016 registered for the offence under Sections 212, 213, 414/34 of the I.P.C., Section 17(ii) of the Criminal Law (Amendment) Act, 1908 and Sections 13, 17 & 40 of the Unlawful Activities (Prevention) Act, whereby and whereunder, the prayer for regular bail of the appellant has been rejected. PROSECUTION CASE & FACTS
2. The brief facts of the prosecution case leading to this Criminal Appeal is that on 10.11.2016, on receiving secret information, the informant namely Mr. Bindeshwari Das, Officer In-charge of Bero P.S. registered an information received regarding the associates of Supremo of PLFI depositing ill-gotten money of crime proceed realized as extortion of levy at SBI, Bero, Ranchi. After having informed his superior authorities and having received their directives, he proceeded for its verification along with other police officials and reserve guards.
3. At about 03.15 PM, he reached along with his team at SBI, Bero, Ranchi, and after surrounding the same waited in ambush. In the meantime, after having seen the police party, 3-4 persons making hue and cry attempted to flee away with bag having articles carrying in their hand, and one of the persons was apprehended from campus of the Bank and three persons were apprehended while boarding Safari Vehicle No. JH01Y 2898. On asking, the persons 3 Cr. Appeal(DB) No.767/2022 apprehended disclosed their name as Binod Kumar, Chandra Shekhar Kumar, Nand Kishore Mahto and Mohan Kumar.
4. The Informant conducted search of these persons in presence of independent witnesses and alleged levy/extorted amount of Rs. 25,38,000/- was recovered. The accused persons were unable to show any document and one of the co-accused confessed before the Informant that the PLFI Supremo Dinesh Gope had instructed him on mobile phone after the Central Government Policy of demonetization to deposit the amount. It was further confessed by a co-accused that levied, extorted money was given by PLFI extremist organization for getting it converted white money by depositing in the name of the said petrol pump. Accordingly, all the said articles were seized in presence of independent witnesses and seizure list was prepared.
5. It is alleged that these accused persons were involved in the extortion of levied amount and such ill-gotten money was being converted by hardcore outlawed PLFI extremist people which is dangerous to the national interest and helpful for the extremist organization.
6. Accordingly, a case was registered on the basis of written report made by Sub-Inspector of Bero P.S Mr. Bindeshwari Das, as Bero P.S. Case No.67 of 2016 under Sections 212, 213, 414/34 of the I.P.C., Section 17(ii) of the Criminal Law (Amendment) Act, 1908 and Sections 13, 17 & 40 of the Unlawful Activities (Prevention) Act against accused persons namely Binod Kumar, Chandra Shekhar Kumar, Nand Kishore Mahto, Mohan Kumar and also against 4 Cr. Appeal(DB) No.767/2022 accused Yamuna Prasad and Dinesh Gope.
7. After investigation the state police filed charge-sheet in the aforesaid case vide charge-sheet no. 01 of 2017 against the accused persons namely Binod Kumar, Chandra Shekhar Kumar, Nand Kishore Mahto, Mohan Kumar and further investigation continued against accused Yamuna Prasad and Dinesh Gope.
8. Later on, considering the gravity of the offence, Ministry of Home Affairs, Government of India vide order dated 16.01.2018 directed National Investigation Agency (NIA), to take over the investigation of the Bero P.S. Case No.67 of 2016.
9. In compliance to the directions of the Ministry of Home Affairs, Government of India, (Order No.F.No.11011/51/2017/IS-IV dated 16.01.2018), re-registered the aforesaid case as NIA Case no. RC- 02/2018/NIA/DLI dated 19.01.2018 under Sections 212,213,414 and 34 of IPC of the Indian Penal Code (I.P.C.), Section 17 of the C.L.A. Act 1908 and under Sections 13,17 and 40 of the Unlawful Activities (Prevention) Act 1967 (UA(P) Act 1967) against the accused persons.
10. 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.
11. During the course of further investigation it surfaced that the absconding accused Dinesh Gope (A-6), supremo of PLFI, continued to channelize levy amount into legitimate means by 5 Cr. Appeal(DB) No.767/2022 depositing/transferring into the bank accounts of his wives(A-13) and A-14 and associates by using several Pragya Kendra operative through various banking channels and also in the bank accounts of Companies opened in the name of his wives(A-13), A-14, Sumant Kumar (A-7) and the present appellant (Fuleshwar Gope) and accordingly, he was arrested on 13.07.2020. Accordingly, on 23.7.2020, 2nd supplementary charge-sheet was submitted against the other accused persons including the present appellant and he was arrayed as an Accused no.17 (A-17).
12. Consequently, the above-named appellant had preferred the regular bail application vide Misc. Cr. Application No. 566 of 2022 before the NIA Special Court, Ranchi for regular bail but the same has been rejected vide order dated 19.05.2022, against which, the present appeal has been filed.
Submission advanced on behalf of the learned counsel for the Appellant:
13. Learned counsel for the appellant has assailed the impugned order on the following grounds: -
(i) The appellant has falsely been implicated in the instant case without any valid evidence of his involvement in the collection of levies attracting the ingredients of Section 17 of the U.A.(P) Act and hence, the other penal provision as contained under U.A.(P) Act is also not made out.
(ii) The argument has been advanced by referring to the certificate issued by the Registrar of Company wherein Appellant 6 Cr. Appeal(DB) No.767/2022 is shown as the Director of M/s. Shiv Shaktisamridhhi Infra Pvt.
Ltd. (A-20) but the said document as has been appended by way of a supplementary affidavit cannot be said to be the cogent evidence to implicate the appellant in the commission of crime so as to attract the penal offence under Section 17 of the U.A.(P) Act and other allied section under the aforesaid penal provision.
(iii) In the 1st supplementary charge-sheet, the appellant was not charge-sheeted, rather, he was made a witness but subsequently, when the 2nd supplementary charge-sheet was submitted on 23.07.2020, the appellant has also been arrayed as an accused being accused no.17 on the basis of allegation that his name has figured as the director of M/s. Shiv Shaktisamridhhi Infra Pvt. Ltd., in which, Dinesh Gope's first wife Smt. Hira Devi (A-14) was also a director. But, while implicating the appellant on the pretext of one of the Director of M/s. Shiv Shaktisamridhhi Infra Pvt. Ltd., no material has been collected to establish the issue of commission of offence said to be committed under Section 17 of the U.A.(P) Act, since, even accepting the ground of N.I.A. for implicating the appellant which is only for collecting the levy but there is no evidence to that effect.
(iv) The appellant is languishing in judicial custody since 13.07.2020 and further there is no likelihood of the trial to be concluded in near future, therefore, as per the judgment rendered by the Hon'ble Apex Court in the case of Union of 7 Cr. Appeal(DB) No.767/2022 India Vrs. K.A. Najeeb, reported in [(2021) 1 SCR, the appeal of the appellant may be allowed.
(v) The ground of parity has also been taken and it is submitted that the other co-accused person, namely, Jitendra Kumar and Jai Prakash Singh Bhuiyan has been directed to be released on bail by co-ordinate bench of this Court vide order dated 08.05.2023 and 05.01.2024 passed in Cr. Appeal (DB) No.514 of 2020 and Cr. Appeal (DB) No.14 of 2021 respectively.
14. 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 considered, therefore, the impugned orders need to be interfered with.
Submission advanced on behalf of the learned counsel for Respondent-N.I.A.
15. Per contra, Mr. Amit Kumar Das, learned counsel for the respondent-NIA has taken the following grounds by defending the impugned order: -
(i) So far as the issue of document issued from the office of Registrar of Company, upon which, the doubt is sought to be created, the same cannot be said to be sustainable if the entire document will be looked into where the name of the appellant has been referred as one of the Director of the said Company along with the reference of Voter Card, Aadhar Card and the detailed address of the appellant.8 Cr. Appeal(DB) No.767/2022
(ii) Since, the appellant is before this Court for consideration of the prayer for bail after showing interference with the impugned order then the propriety/genuineness of the documents, cannot be looked into at this stage, rather, the appropriate stage is to question such document in course of the trial.
(iii) The trial is going on and the witnesses have also been examined and it has been submitted that the cases of the other co-accused persons for the purpose of grant of bail have already been dealt with by the Coordinate Division Bench of this Court which have been rejected with a direction to conclude the trial as expeditiously as possible preferably within a period of 1 year.
(iv) An order was passed by the coordinate bench directing to conclude the trial within the period of 1 year and out of 241 charge-sheeted witnesses, 125 witnesses have been found to be relevant to be examined, out of which, 103 witnesses have already been examined and only 22 charge-sheeted witnesses are remain to be examined in this case and hence, the trial is on verge of its conclusion.
(iv) So far as the ground taken of custody by taking aid of the judgment passed by the Hon'ble Apex Court in the case of K.A. Najeeb (Supra) the reliance has been placed in the case of Gurwinder Singh Vrs. State of Punjab & Anr., reported in 2024 SCC ONLine SC 109, wherein, the Hon'ble Apex Court has been pleased to hold that in a matter of U.A.(P), the jail will be the Rule and the bail will be exception. Further, even the fact of the case of 9 Cr. Appeal(DB) No.767/2022 K.A. Najeeb (supra) is not applicable in the facts of the present case.
(v) The Coordinate Bench of this Court had denied the privilege of bail to another-co-accused, namely, Navinbhai Jayantibhai Patel in Cr. Appeal (DB) No. 556 of 2020 and the case of the present appellant is nearer to the Navinbhai Jayantibhai Patel, as such the present appellant is not entitled for the bail on the instance of parity.
16. Mr. Das, learned counsel for the respondent-NIA based upon the aforesaid ground has submitted that since the nature of allegation leveled against the appellant is very grave and bail of accused persons namely Navinbhai Jayantibhai Patel, have already been rejected in Criminal Appeal (DB) No. 556 of 2020 respectively, therefore, the present appeal is also fit to be dismissed.
17. 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.
18. 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).
19. 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, Act 1967 has been enacted to provide for the more 10 Cr. Appeal(DB) No.767/2022 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 UAPA is also to provide for more effective prevention of certain unlawful activities.
20. 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.
21. Clause (m) of Section 2 of the 1967 Act defines "terrorist organization". It is defined as an organization listed in the First Schedule. CPI (Maoist) has been listed at Item no. 34 in the First Schedule. Chapters III onwards of the 1967 Act incorporate various offences. Chapter IV has the title "punishment for terrorist act". Clause (k) of Section 2 provides that "terrorist act" has the meaning assigned to it under Section 15 and the terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule.
22. 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 11 Cr. Appeal(DB) No.767/2022 or continues to be a member of such association shall be liable to be punished.
23. As per mandate of section 13 of the Act 1967 who takes part in or commits, or advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine.
24. At this juncture it will be purposeful to discuss the core of Section 43(d)(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 under Sections 17, 18 and 21 of the UA(P) Act, 1967.
25. 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 v. Zahoor Ahmad Shah Watali, [(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 stated offence, unless rebutted or contradicted. The 12 Cr. Appeal(DB) No.767/2022 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 13 Cr. Appeal(DB) No.767/2022 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...."
26. It is, thus, evident from the proposition laid down by the Hon'ble Apex Court in the case of National Investigation Agency vs. 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.
27. 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 14 Cr. Appeal(DB) No.767/2022 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.
28. Further, the Hon'ble Apex Court by setting out propounding the law in the same case of National Investigation Agency v. Zahoor Ahmad Shah Watali (supra), has observed that the elaborate examination or dissection of the evidence is not required to be done at this stage and 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. For ready reference paragraph 24 and 25 of the aforesaid judgment is being quoted herein under:-
"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 15 Cr. Appeal(DB) No.767/2022 service by the investigating agency were not admissible in evidence. It also noted that it was unlikely that the document had been recovered from the residence of Ghulam Mohammad Bhatt till 16-8-2017 (para 61 of the impugned judgment). Similarly, the approach of the High Court in completely discarding the statements of the protected witnesses recorded under Section 164 CrPC, on the specious ground that the same was kept in a sealed cover and was not even perused by the Designated Court and also because reference to such statements having been recorded was not found in the charge-sheet already filed against the respondent is, in our opinion, in complete disregard of the duty of the Court to record its opinion that the accusation made against the accused concerned is prima facie true or otherwise. That opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the contents of the case diary and including the charge-sheet (report under Section 173 Cr.P.C.) and other material gathered by the investigating agency during investigation."
29. It is, thus, evident that the exercise to be undertaken by the court at this stage of granting bail of giving reasons for grant or non-grant of bail that 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. Rather, 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. 16 Cr. Appeal(DB) No.767/2022
30. 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 case diary and including the charge-sheet (report under Section 173 CrPC) and other material gathered by the investigating agency during investigation. 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 v. 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."17 Cr. Appeal(DB) No.767/2022
31. The hon'ble Apex Court in a very recent judgment rendered in Gurwinder Singh Vs State of Punjab and Another, reported in 2024 SCC OnLine SC 109 while taking in to consideration of the judgment as rendered in the National Investigation Agency v. Zahoor Ahmad Shah Watali (supra) and Union of India Vs. K.A. Najeeb (supra) has observed that, the proviso to Sub-section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail and lays down that if the Court, 'on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure', is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the UAP Act is prima facie true, such accused person shall not be released on bail or on his own bond.
32. The Hon'ble Apex Court further observed that the conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - 'bail is the rule, jail is the exception' - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act and the 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope.
33. In the aforesaid context it has further been observed by the Hon'ble Supreme Court that the courts are, therefore, burdened with a sensitive task on hand and in dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail and the 'justifications' 18 Cr. Appeal(DB) No.767/2022 must be searched from the case diary and the final report submitted before the Special Court.
34. In the aforesaid background the Hon'ble Apex Court has held that the test for rejection of bail is quite plain and Bail must be rejected as a 'rule', if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It has further been observed that it is only if the test for rejection of bail is not satisfied - that the Courts would proceed to decide the bail application in accordance with the 'tripod test' (flight risk, influencing witnesses, tampering with evidence).
35. For ready reference, following paragraphs of the aforesaid Judgment are being quoted herein under:
"27. A bare reading of Sub-section (5) of Section 43D shows that apart from the fact that Sub-section (5) bars a Special Court from releasing an accused on bail without affording the Public Prosecutor an opportunity of being heard on the application seeking release of an accused on bail, the proviso to Sub- section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail. It lays down that if the Court, 'on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure', is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV 19 Cr. Appeal(DB) No.767/2022 and/or Chapter VI of the UAP Act is prima facie true, such accused person shall not be released on bail or on his own bond. It is interesting to note that there is no analogous provision traceable in any other statute to the one found in Section 43D(5) of the UAP Act. In that sense, the language of bail limitation adopted therein remains unique to the UAP Act.
28. The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - 'bail is the rule, jail is the exception' - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act. The 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D (5)- 'shall not be released' in contrast with the form of the words as found in Section 437(1) CrPC - 'may be released' - suggests the intention of the Legislature to make bail, the exception and jail, the rule.
29. The courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail. The 'justifications' must be searched from the case diary and the final report submitted before the Special Court. The legislature has prescribed a low, 'prima facie' standard, as a measure of the degree of satisfaction, to be recorded by Court when scrutinizing 20 Cr. Appeal(DB) No.767/2022 the justifications [materials on record]. This standard can be contrasted with the standard of 'strong suspicion', which is used by Courts while hearing applications for 'discharge-- ---"
36. In this background, the test for rejection of bail is quite plain. Bail must be rejected as a 'rule', if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied that the Courts would proceed to decide the bail application in accordance with the 'tripod test' (flight risk, influencing witnesses, tampering with evidence). This position is made clear by Sub-section (6) of Section 43D, which lays down that the restrictions, on granting of bail specified in Sub- section (5), are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail.
37. The Hon'ble Apex Court in the aforesaid judgment after textual reading of Section 43 D(5) UAP Act, has formulated the guideline which was summarized in the form of a twin-prong test. For ready reference the relevant paragraph is being quoted herein under:
"31. On a textual reading of Section 43 D(5) UAP Act, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarized in the form of a twin- prong test:
1) Whether the test for rejection of the bail is satisfied? 21 Cr. Appeal(DB) No.767/2022
1.1 Examine if, prima facie, the alleged 'accusations' make out an offence under Chapter IV or VI of the UAP Act 1.2 Such examination should be limited to case diary and final report submitted under Section 173 CrPC;
2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC ('tripod test')?"
38. 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.
39. 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.
40. This Court, on the basis of the aforesaid 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 appellants is prima facie true as compared to the opinion of accused not guilty by taking into consideration the material collected in course of investigation. 22 Cr. Appeal(DB) No.767/2022
41. The 2nd supplementary charge-sheet dated 23.07.2020 has been appended as Annexure to the main petition and it is evident from the 2nd supplementary charge-sheet that the appellant has been charge-sheeted accused (A-17) of the instant case.
42. It is evident from the perusal of charge-sheet that NIA in his investigation found that the present petitioner (A-17) on the direction of Dinesh Gope (A-6), knowingly held the amount derived/collected through extortion/Levy by PLFI and channelized it into the bank account of M/s Shiv Shaktisamridhhi Infra Pvt Ltd (A-20) which is mentioned in various paragraphs of the 2nd supplementary charge-sheet. For ready reference the aforesaid paragraphs are being quoted herein under: -
"16.4 It is pertinent to mention that the cadres/members/operatives of proscribed organization, PLFI, declared unlawful association by the Jharkhand state, are acquiring huge movable and immovable properties, illegally earned through extortion/levy amount from the road contractors. owners of the stone crushers machines, MNREGA works, businessmen. private transporters, Mine contractors and other contractors who are engaged in development projects in different districts of Jharkhand and the said acquired properties are Proceeds of Terrorism. They collect funds by unleashing terror in the minds of populace of the area and thereby the acts committed by the members of the "terrorist gang" is commission of offence as defined of terrorist act in section 15 (1) (a) (i) of UA (P) Act, 1967 as amended.23 Cr. Appeal(DB) No.767/2022
16.5: Appreciating the gravity of the offence in the instant crime, the Central Government in exercise of the powers conferred under sub-section 5 of section 6 read with section 8 of the National Investigation Agency Act, 2008, vide MHA, New Delhi CTCR Division Order no. 11011/51/2017/IS-IV dated 16.01.2018, directed National Investigation Agency (NIA) to take up investigation of the case and accordingly the case was re-registered as NIA case No. RC-02/2018/NIA/DLI dated 19.01.2018 under sections 212, 213, 414, 34 of IPC, section 13, 17 & 40 of UA(P) Act and Section 17 of CLA Act.
16.6: During further investigation, it has been established that besides collection of the extorted money in the form of Levy, A-6 is also investing the extorted money in the Companies opened in the name of his wives A-13 and A-14 and also A-7 and A-17) formed as a part of the larger conspiracy plan. Therefore, as per plan of A-6 and on his directions, his associates/ members of PLFI are channelizing levy amount into alleged legal manner. In addition, it has been established the PLFI operatives and the associates conspired together in the name of alleged surrender of A-6, Supremo of PLFI, and huge amount of extorted money were paid through Hawala transaction.
16.8: The case was kept under further investigation. During the course of further investigation, it surfaced that the absconding accused Dinesh Gope (A-6), supremo of PLFI, continued to channelize levy amount into legitimate means by 24 Cr. Appeal(DB) No.767/2022 depositing/transferring into the bank accounts of his wives(A-
13) and A-14 and associates by using several Pragya Kendra operative through various banking channels and also in the bank accounts of Companies opened in the name of his wives, A-13 and A-14, and Sumant Kumar (A-7) and the Fuleshwar Gope.
17.5 Role and activities of the accused A-7,A-8,A-9,A-10, A-
11 & A-12:-
It is established that Dinesh Gope is involved in collecting levy directly and through his operatives/caders from transporters contractors etc. As part of the conspiracy, A-6, through his associates was investing the extorted amount in dubious companies. Further banking channels were also used to legalize the illegally extorted money. Investigation further revealed that Dinesh Gope mobilised various associates /couriers to operate for furtherance of his unlawful activities. Initially, extorted levy amount was being converted through A-1 to A-4 and post arrest of A-1 to A-4, he(A-6) assigned the same task to Sumant Kumar (A-7). As per the conspiracy, A-7 was holding the post of Director in Mix Bhavya Engicon Pvt. Ltd. (A-18), M/s Shir Aadi Shakti Minerals Pvt. Ltd A 19) in partnership with Shakuntala Kumari (A-13), alleged second wife of Dinesh Gope. After getting funds the Dinesh Gope, Sumant Kumar (A-7) either himself or in active association with Arun Gape (A-10) deposited extorted money 25 Cr. Appeal(DB) No.767/2022 into the accounts of the above dubious companies. A-6 also ensured that the finds are deposited in the account of Shiv Shaktisamridhhi Infra Pvt Ltd.(A-20), whose director was Hira Devi (A-14) first wife of Dinesh Gope and another Director was Fuleshwar Gope (A-17), Sumant Kumar(A-7) and Jitender Kumar (A-11) hatched the criminal conspiracy in the name of alleged surrender of Dinesh Gope A-6 self styled chief of PLFI with the association of Nandlal Swarnkar(A-8), Chandra Shekhar Singh (A-9) & Navinbhai Jayantibhai Patel (A-12) and arranged/held meeting with the political leaders in the different parts of the country.
17.6: Revelations of the criminal conspiracy hatched among the accused persons for channelizing the extorted money of PLFI into legitimate means by depositing in the bank accounts of individuals and dubious companies. 17.6.1: Besides the collection of the extorted money in the form of levy, Dinesh Gope (A-6) invested the extorted money in the dubious companies formed as part of the larger conspiracy plan and on his direction, his associates/members of FLFI channelized it in the alleged legal manner. It is pertinent to mention here for this purpose, Dinesh Gope forms various modules to operate for furtherance of his unlawful activities.
Initially extorted levy amount was getting converted through A-1 to A-4 and post arrest A-1 to A-5, he (A-6) assigned the same task to another module having the same Modus-operandi, with 26 Cr. Appeal(DB) No.767/2022 the association under the leadership the A-7. A-7 was holding the post of director in M/s Bhavya Engicon Pvt. Ltd (A-18) and M/s Shiv Aadi Shakti Minerals Ltd (A-19), with the purpose to disguise the actual intention with the partnership of Shakuntala kumari (A-13), alleged second wife of Dinesh Gope(A-6). A-13 also has been Sole Proprietor of a dubious un-registered Company named Palak Enterprises. Hira Devi (A-14), first wife of A-6 was joint director (another director is Fuleshwar Gope (A-
17) of a Company namely, M/S Shiv Shaktisamridhhi Infra Pvt. Ltd (A-20). The companies, mentioned above, have been used for channelizing the funds (levy & extortion) of absconding accused A-6. After getting funds directly from Dinesh Gope (A-
6), Sumant Kumar (A-7) either himself or with active association of Arun Gope (A-10), other associates of PLFI, and others, deposited extorted money in the accounts of the above dubious companies and approximately amount to the tune of approx. Ra 2,68,00,000/-(Rupees Two Crores Sixty Eight Lakhs only) were channelized into legitimate means.
17.6.2: Sumant Kumar (A-7) in close association of Jitender Kumar (A-11) hatched the criminal conspiracy in the name of alleged surrender of A-6, self- styled supremo of PLFI with the association of A-8, A-9 & A-12 and arranged/held meeting with the political leaders. As per the plan of A-6, A-7 along with his associates, were directly, deeply, discreetly involved in the larger conspiracy and in the commission of the instant crime 27 Cr. Appeal(DB) No.767/2022 and channelized the extorted amount into alleged legitimate means by depositing the same in the bank accounts of family members/close associates as well as companies owned by A-7, A-13, A-14, A-17 or having partnership with them. 17.7.12: During scrutiny of the Axis Bank, Ashok Nagar, Ranchi account number 916020046701699 in the name of M/S Shiv Shaktisamridhhi Infra Pvt. Ltd. (A-20). It is found that Rs. 23,50,000/- had been deposited/transferred from date of account opening Le. August 2016 to April 2018. Out of the said amount, Rs. 11,50,000/- were deposited in cash, Rs. 10,00,000/- were transferred from M/s Calvin Planners and Investors Pvt. Ltd. (they took cash and transferred the money through cheque) & Rs. 2,00,000/- from A-18. From the said account, Rs. 12,60,000/- was paid to Birendra Kumar Dubey for purchasing flat in Kolkata (in name of A-14).
17.12.12: Investigation has established that A-17 has conspired with A-6, A-7, A-14 to form a company, A-20 along with A-14, to form a dubious company A-20, to channelize the levy/extorted funds into legitimate means by raising/depositing funds in the bank account of A-20.
17.17: Offences established against accused Hira Devi @ Anita Devi (A-14):
A-14 is first wife of A-6 and is well acquainted with the facts that A-6 is a terrorist and chief of PLFI (People's Liberation Front of India) and collects/raises levy through extortion. A-14 has 28 Cr. Appeal(DB) No.767/2022 criminally conspired with the members/associates of PLFI, an Unlawful Association and terrorist gang proscribed by the state of Jharkhand, namely A-6, A-7, A 1, A-10, A- 15, A-16 & A-17 on the direction of A-6, A-14 had formed a Company namely, M/S Shiv Shaktisamridhhi Infra Pvt. Ltd (A-20), along with partnership of A-18 Further, A-14 used to directly or indirectly, raise or collect funds, either from legitimate or illegitimate sources or persons namely A-1, A-6, A-7, A-10, A-15, A-16 & A-
17 and other associates of A-6, knowing fully well that such funds are likely to be used by PLFI, a terrorist gang, for their nefarious/terrorist activities. A-14 is deeply involved in the larger conspiracy and the commission of instant crime and was channelizing the extorted amount into legitimate means by depositing the same in her individual bank accounts and A-20. It has been proved that A- 14 had knowingly held the huge amount of levy, collected through extortion by PLFI, and the said levy amount were used for purchasing flat and her personal use. A-14 has also knowingly hidden her identity for the purpose of fraud and impersonation and opened a bank account in Central Bank of India with a forged Aadhaar Card in the name of Anita Devi for raising/collecting levy amount and channelizing the extorted money. A-14, on the direction of A-6 and with association of A-1, A-7, A-10, A-15 & A- 16, was deeply involved in the larger conspiracy and in the commission of the instant crime by channelizing the extorted amount as per the 29 Cr. Appeal(DB) No.767/2022 plan of PLFI. She knowingly held the amount derived/collected through extortion/levy by PLFI operatives from commission of any terrorist act (levy, extortion) or acquired through the terrorist fund, and invested it into A-20 and her individual bank accounts, for purchasing Flat and personal use. A-14, on the directions of A-6 and with the association of A-1, A-7, A- 10, A-13, A-15, A-16 and A-17, was deeply involved in the larger conspiracy and in the commission of the instant crime and was channelizing the extorted amount as per the plan of PLFI.-----
17.20: Offences established against Fuleshwar Gope, the present appellant (A-17):
It is stablished that A-17 being an associate of PLFI, is well acquainted with the facts that A-6 is a terrorist and chief of PLFI and levy through extortion. A-17 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-7, A-14. On the direction of A-6, A-17 had formed a Company namely, M/S Shiv Shaktisamridhhi Infra Pvt. Ltd (A-20), along with partnership of A-14. Further, A-17 criminally conspired to directly or indirectly, raise or collect funds, either from legitimate or illegitimate sources or persons knowing fully well that such funds are likely to be used by PLFI, a terrorist gang, for their nefarious/terrorist activities. A-17, on the direction of A-6, knowingly held the amount derived/collected through extortion/Levy by PLFI and channelized it into the bank account 30 Cr. Appeal(DB) No.767/2022 of A-20. A-17, on the directions of A- 6 and with the association of A-7 and A-14, was deeply involved in the larger conspiracy and in the commission of the instant crime and was channelizing the extorted amount as per the plan of PLFI. Thereby, Fuleshwar Gope (A-17) committed offences under section 120B of IPC read with sections 17, 18, 21 & 22(C) of the UA (P) Act and sec 17(i), (ii) of the CLA Act, 1908. 17.21 Offences established against M/s Shiv Shaktisamridhhi Infra Pvt. Ltd (A-20):
It is established that on the direction of A-6, chief of PLFI, a terrorist gang and unlawful association proscribed by the State of Jharkhand, A-14 formed a Company namely, M/S Shiv Shaktisamridhhi Infra Pvt. Ltd (A-20) along with A-17. A-20 has been used to directly or indirectly, raise or collect funds, either from legitimate or illegitimate sources or persons. Further, A-20 has been used for the purpose of channelizing the extortion/levy amount of A-6. In the garb of doing transparent business, A-20 became a frontal company to legitimize levy amounts collected by A-6 as huge amount of money was deposited in the account of A-20 by A-7, A-10, A-14, A-17 and other associates of A-6. The Axis bank account of A-20 shows that A-14 booked a flat by paying amount of Rs 12,60,000, A-20 was not concerned with any conduct of business work and their bank account has been used only for channelizing the terrorist fund pertaining to A-6 for acquiring the immovable/movable 31 Cr. Appeal(DB) No.767/2022 property by using this fund and if left unabated, the profit earned from A-20 could have been further used to purchase properties, arms and ammunitions and explosives to carry out terrorist activities by PLFI. Thereby, M/s Shiv Shaktisamridhhi Infra Pvt Ltd (A-20) committed offences under sections 17, 21 & 22 (C) of the UA (P) Act."
43. Thus, from perusal of the charge-sheet it appears that Dinesh Gope (A 6) channelizes levy amount into legitimate means by depositing/ transferring into the bank accounts of his wives A-13 and A-14 with the help of Sumant Kumar (A-7) and the present appellant Fuleshwar Gope (A17), the present appellant.
44. The specific role of the present appellant Fuleshwar Gope has been mentioned in para 17.20 of the chargesheet wherein it is alleged that petitioner (A-17) being associate of PLFI was well acquainted with the facts that A-6 is terrorist and Chief of the PLFI and he used to collects levy through extortion.
45. It has further come during the investigation that A17 i.e present appellant has criminally conspired with the members associates of the PLFI an unlawful association and terrorist gang proscribed by the State of Jharkhand namely A 6 and A 7, A 14 and the present appellant on the direction of the A 6 formed a company namely M/s Shiv Shakti Samridhi Infra Pvt. Ltd. (A 20).
46. Further it appears from the aforesaid paragraphs that A-14 and A-17 i.e. present appellant criminally conspired directly or indirectly and they raised or collected fund from legitimate or 32 Cr. Appeal(DB) No.767/2022 illegitimate source or the persons likely to be used by PLFI for their nefarious terrorist activities. The appellant Fuleshwar Gope on the direction of the A-6 knowingly held the amount collected through levy by PLFI and channelized it into the bank account of A 20 in association of Sumant Kumar A -7 and Hira Devi(A -14) .
47. From aforementioned paragraph of 2nd supplementary charge-sheet it appears that there is prima facie allegation against petitioner that he by making criminal conspiracy invested extortion money collected by PLFI cadre on the direction of the PLFI supremo namely Dinesh Gope (A-6) with the help of Shakuntala Kumari (A-13) , Hira Devi alias Anita Devi (A 14) ,Sumant Kumar @ Pawan Kumar (A
7) , Chandra Shekhar Singh (A 9) which was used by the PLFI supremo for anti-National activities challenging the sovereignty and integrity as well as national interest of Government of India.
48. Thus from aforementioned paragraphs of 2nd supplementary charge-sheet prima-facie it appears that the present appellant was well acquainted with the facts that Dinesh Gope (A-6) is a terrorist and chief of PLFI and collects levy through extortion and the appellant, has criminally conspired with the members/associates of PLFI, an Unlawful Association and terrorist gang proscribed by the state of Jharkhand, namely Dinesh Gope (A-6), Sumant Kumar (A-7), Hira Devi (A-14) and further on the directions of Dinesh Gope A-6, A-17 (Fuleshwar Gope) the appellant, had formed a Company namely, M/S Shiv Shakti Samridhhi Infra Pvt. Ltd (A-20), in partnership with Hira Devi (A- 14). Further appears that the present appellant on the 33 Cr. Appeal(DB) No.767/2022 direction of Dinesh Gope (A-6), knowingly held the amount derived/collected through extortion/Levy by PLFI and channelized it into the bank account of M/s Shiv Shakti Samriddhi Intra Pvt. Ltd. (A-
20).
49. Thus, prima-facie it appears that the present appellant on the directions of Dinesh Gope (A 6) and with the association of Sumant Kumar (A-7) and Hira Devi (A-14), was deeply involved in the larger conspiracy and was channelizing the extorted amount as per the plan of PLFI a proscribed terrorist organization.
50. The learned counsel for the appellant by referring to the certificate issued by the Registrar of Company wherein Appellant is shown as the Director of M/s. Shiv Shaktisamridhhi Infra Pvt. Ltd. (A-
20) has contended that the said document as has been appended by way of a supplementary affidavit by the respondent NIA, cannot be said to be the cogent evidence to implicate the appellant in the commission of crime.
51. Per contra, the learned counsel for the respondent NIA has submitted that that the said document which has been appended in the supplementary affidavit is genuine and reliable as such the contention regarding the genuineness of the document is totally misplaced.
52. This Court, after appreciating the aforesaid argument, is of the view that since this Court is to make out a prima-facie view based upon the principle as provided under Section 43D(5) of the U.A.(P) Act, therefore, is of the view that the genuineness of the 34 Cr. Appeal(DB) No.767/2022 document is not looked into at this stage, rather, for the purpose of making a prima-facie view, the document pertaining to creation of the said company, prima-facie is available against the appellant.
53. Further, The learned counsel for the appellant has taken the ground of parity and submits that the other co-accused person, namely, Jitendra Kumar and Jai Prakash Singh Bhuiyan has been directed to be released on bail by co-ordinate bench of this Court vide order dated 08.05.2023 and 05.01.2024 passed in Cr. Appeal (DB) No.514 of 2020 and Cr. Appeal (DB) No.14 of 2021 respectively.
54. The learned counsel for the appellant has further taken the reference of the order dated 03.10.2023 passed in Cr. Appeal (DB) No. 201 of 2020 by which accused persons namely Binod Kumar, Chandra Shekhar Kumar, Nand Kishore Mahto, Mohan Kumar has been granted bail.
55. In the backdrop of aforesaid contention, the learned counsel for the appellant has submitted that since the other co- accused persons have already been granted bail, therefore the present appellant may be enlarged on bail.
56. Per contra, the learned counsel for the respondent NIA has submitted that the case of the instant appellant is on different footing in comparison to the other accused persons who have already been granted bail. It is further submitted that co-ordinate Bench of this Court had denied the privilege of bail to another-co- 35 Cr. Appeal(DB) No.767/2022 accused namely Navinbhai Jayantibhai Patel in Cr. Appeal (DB) No. 556 of 2020 and the case of the present appellant is nearer to the Navinbhai Jayantibhai Patel, as such the present appellant is not entitled for the bail on the instance of parity. Issue of Parity
57. In the backdrop of the aforesaid contention, this Court is now proceeding to examine the issue of parity. The law is well settled that the principle of parity is to be applied if the case of the fact is exactly to be similar then only the principle of parity in the matter of passing order but if there is difference in between the facts, then the principle of parity is not to be applied.
58. It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by only simple saying that another accused has been granted bail is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. Reference in this regard may be taken from the judgment as rendered by the Hon'ble Apex Court in Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230, wherein, it has been held as under:
"25. We are constrained to observe that the orders passed by the High Court granting bail fail to pass 36 Cr. Appeal(DB) No.767/2022 muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 :] , this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed : (SCC p. 515, para 17) "17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history-sheeter, it was imperative on the part of the High Court to scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside.
26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12- 2020 [Pravinbhai Hirabhai Koli v. State of Gujarat, 2020 SCC OnLine Guj 2986] , [Khetabhai Parbatbhai 37 Cr. Appeal(DB) No.767/2022 Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2988] , the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22-10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High Court recorded) that he was "assigned similar role of armed with stick (sic)". Again, bail was granted to Vanraj Koli (A-16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-
13) who were armed with sticks had been granted bail.
The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law."
59. Further, the Hon'ble Apex Court in Tarun Kumar Versus Assistant Director Directorate of Enforcement, reported in (2023) SCC OnLine SC 1486 has observed that parity is not the law and while applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration.
38 Cr. Appeal(DB) No.767/2022
60. It has further been held in the said judgment that the principle of parity is to be applied in the matter of bail but equally it has been laid down therein that there cannot be any negative equality, meaning thereby, that if a co-accused person has been granted bail without consideration of the factual aspect or on the ground said to be not proper, then, merely because the co- accused person has been directed to be released on bail, the same will not attract the principle of parity on the principle that Article 14 envisages positive equality and not negative equality. For ready reference, relevant paragraph, i.e., paragraph-18 and 19, of the aforesaid judgment reads as under:
".18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/operator/controller of various shell companies were granted bail on the ground of infirmity and medical grounds. The co-accused Raman Bhuraria, who was the internal auditor of SBFL has been granted bail by the High Court, however the said order of High Court has been challenged by the respondent before this Court by filing being SLP (Crl.) No. 9047 of 2023 and the same is pending under consideration. In the instant case, the High Court in the impugned order 39 Cr. Appeal(DB) No.767/2022 while repelling the said submission made on behalf of the appellant, had distinguished the case of Raman Bhuraria and had observed that unlike Raman Bhuraria who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day-to-
day operations of the company. It was also observed that the appellant's role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said order passed by the High Court.
"19. It is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitution. However, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order. Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision."
61. In the light of aforesaid settled position of law this Court has examined the allegations, as have been alleged against aforesaid accused persons.
40 Cr. Appeal(DB) No.767/2022
62. The role of the Jai Prakash Singh Bhuiyan has been depicted in para 17.18 of the second supplementary chargesheet, which reads as follows:-
17.18: Offences established against 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, A14 & 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, DisttKhunti, 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 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 41 Cr. Appeal(DB) No.767/2022 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".
63. It is evident from aforesaid paragraph that the major charge, which has been levelled against the Jai Prakash Singh Bhuiya, 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.
64. Further so far, the other co-accused namely Jitendra Kumar is concern the major charge, which has been levelled against him, 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.
65. Further, the allegation against the other accused persons namely Binod Kumar(A-1), Chandra Shekhar Kumar, Nand Kishore Mahto Rajesh Kumar @ Mohan Kumar that they are of being involved in criminal conspiracy with the other accused persons more particularly PLFI supremo - Dinesh Gope into channelizing the extorted money into legitimate means. What would further be apparent is that the appellants were acting as conduits in channelizing such ill-gotten money.
66. This Court has already referred hereinabove the allegation against the present appellant that he is one of the Director of the Company in the 42 Cr. Appeal(DB) No.767/2022 name and style of M/s. Shiv Shaktisamridhhi Infra Pvt. Ltd. and prima facie allegation against present appellant is like that he, by making criminal conspiracy invested extortion money collected by PLFI cadre on the direction of the PLFI supremo namely Dinesh Gope (A-6) with the help of Shakuntala Kumari (A-13) , Hira Devi @ Anita Devi (A 14), Sumant Kumar @ Pawan Kumar (A 7) , Chandra Shekhar Singh (A 9), which was used by the PLFI supremo for anti-National activities challenging the sovereignty and integrity as well as national interest of Government of India.
67. The document has also been appended with the supplementary affidavit, issued by the Registrar of Company from whose Office the said Company has been registered. However, the genuineness of the said document has been questioned but since this Court is to make out a prima-facie view based upon the principle as provided under Section 43D(5) of the U.A.(P) Act, therefore, is of the view that the genuineness is not looked into at this stage, rather, for the purpose of making a prima-facie view, the document pertaining to creation of the said company by the Office, prima-facie is available against the appellant.
68. This Court, after taking into consideration the fact that this appellant was an active member of the Company in the capacity of one of the Director of the Company, i.e., M/s. Shiv Shaktisamridhhi Infra Pvt. Ltd., while, on the other hand, the allegation against the co- accused persons, is on different footing hence, is of the view that the principle of parity will not be applicable.
43 Cr. Appeal(DB) No.767/2022
69. 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.
70. While, the fact of the instant case is that there is very grave nature of allegation against the present appellant and further, in the instant case, it has been submitted by the learned counsel appearing for the N.I.A., on instruction that in course of trial, the number of charge-sheeted witnesses may also be reduced depending upon the situation and trial may be concluded in shortest time period.
71. This Court, merely on the basis of the custody by taking the ground of violation of Article 21 of the Constitution of India, the same since has already been dealt with by the Hon'ble Apex Court in the case of Gurwinder Singh (Supra) even after taking into consideration the judgment rendered by the Hon'ble Apex Court in the case of K.A. Najeeb (Supra), therefore, is of the view that the 44 Cr. Appeal(DB) No.767/2022 parameter which statutorily has been provided under Section 43D(5) is to be taken into consideration for the purpose of consideration of bail, if the allegation as per the material collected in course of investigation is found to be prima-facie untrue then only prayer for bail, can be considered. While, if the allegation has been found to be prima-facie true, the privilege of bail cannot be granted.
72. This Court, based upon the aforesaid reason, is of the view that the order passed by the learned court while rejecting the prayer for bail, suffers from no infirmity.
73. Accordingly, the instant appeal fails and is dismissed.
74. Pending Interlocutory Application(s), if any, also stands dismissed.
75. 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.) I Agree (Pradeep Kumar Srivastava, J.) (Pradeep Kumar Srivastava, J.) Rohit/-A.F.R.