Gauhati High Court
Shri Rojen Boro vs National Investigation Agency & Anr on 9 November, 2016
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT: ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)
Criminal Appeal No. 122 of 2016
Shri Rojen Boro ......... Appellant
-Versus-
National Investigation Agency & another ......... Respondents
-AND-
Criminal Appeal No. 124 of 2016
Shri Jayanta Boro ......... Appellant
-Versus-
National Investigation Agency & Another ......... Respondents
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH
HON'BLE MR. JUSTICE N. CHAUDHURY
Advocate for the appellant : Mr. S Borgohain,
Advocate
Advocate for the Respondents: Mr. DK Das,
SPP, NIA
Date of hearing & Judgment: 09.11.2016
Page 1 of 10
Criminal Appeal No. 122/2016
Criminal Appeal No. 124/2016
JUDGMENT & ORDER
(N. Chaudhury, J)
Two appeals being Criminal Appeal No. 122/2016 and Criminal Appeal No. 124/2016 have been preferred by Rojen Boro and Jayanta Boro respectively under section 21 (4) of the National Investigation Agency Act, 2008, challenging the order dated 22.12.2015 passed by the learned Special Judge, NIA in Misc. NIA Case No. 31/2015 and Misc. NIA Case No. 32/2015 arising out same NIA Case No. RC-02/2014 in the court of learned Special Judge, NIA at Guwahati. These two NIA miscellaneous cases were instituted by the appellants before the learned Special Judge praying for bail pending trial in the aforesaid NIA case and the learned Special Judge by his order dated 22.12.2015 refused to grant bail on the ground that charges have already been framed against the two applicants in the case and so in view of the provision of Section 43D (5) of the Unlawful Activities (Prevention) Act, 1967 and in terms of the earlier decision of this court in Criminal Appeal No. 157/2014, there is no scope for granting bail. In the earlier appeal in the case of Y. Brajabidhu Singh v. National Investigation Agency, a Division Bench of this court had held that once the charge is framed against an accused for an offence punishable under Chapter IV and VI of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as 'the Act') and unless the same is challenged and set aside by superior court, there is no scope during trial to hold that accusation against the accused is not prima facie true which is a condition precedent for granting bail in terms of the provision of Section 43D(5) of the Act. On 15.07.2016, a Division Bench of this court referred Page 2 of 10 Criminal Appeal No. 122/2016 Criminal Appeal No. 124/2016 the matter to larger bench for considering the validity and correctness of the view expressed in Y. Brajabidhu Singh (supra) and the Special Bench by its judgment and order dated 08.09.2016 has found the law laid down in Y. Brajabidhu Singh (supra) to be not correct. Accordingly, the prayer of the two appellants for bail has been taken up for consideration.
2. It is to be noted here that NIA Case No. RC-02/2014 was registered after the case was handed over to the National Investigation Agency by the appropriate Government. The case was originally registered as Gobardhana Police Station Case No. 64/2014 on 03.05.2014 under Sections 120B, 122, 123, 147, 436, 307 and 302 of the IPC read with sections 25 (1A) and 27 of the Arms Act and also sections 10 and 13 of the Act. After the case was registered and the two appellants were arrested by police of Gobardhana Police Station, they approached this Court praying for bail under Section 439 of the Code of Criminal Procedure. Rojen Boro filed Bail Application No. 1307/2014 and Jayanta Boro filed Bail Application No. 1379/2014. On 19.06.2014, after perusal of case diary, one of us (N. Chaudhury, J) sitting in Single Bench of this Court by order dated 19.06.2014 rejected the application observing that the petitioner was taken into custody on 03.05.2014 and there were sufficient incriminating materials against him. Same was the observation in both the bail petitions. It is to be noted that Rojen Boro is a grass cutter and was posted at Bansbari Range Office within the jurisdiction of Manas National Park. Jayanta Boro is a Forest Guard and was posted at Narayanguri Forest Field Camp within the jurisdiction of same Manas National Park. It appears that the Single Bench rejected the bail petitions at the Page 3 of 10 Criminal Appeal No. 122/2016 Criminal Appeal No. 124/2016 very initial stage of investigation when there was nothing on record except the statements of some of the victims. The investigation thereafter progressed initially under the State Police and subsequently under the National Investigation Agency and thereupon further materials were gathered. On the basis of those materials, subsequently charge sheet was filed in RC-02/2014 against both these petitioners along with others. Since the case is pending before the NIA Court and charges were already framed, the learned Special Court refused to grant bail in view of the law laid down in Y. Brajabidhu Singh (supra).
3. We have heard Mr. S Borgohain, learned counsel for both the appellants and Mr. DK Das, learned senior Standing Counsel, NIA. We have also perused the records.
4. Mr. S Borgohain, learned counsel for the appellants, vehemently urges that both the appellants are employees of the Government of Assam in the Department of Forest. They were discharging their duties in two different places. Placing reliance on the documents submitted along with charge sheet, he argues that Forest Department duly allotted a rifle being No. 87/AB/1200 to Rojen Boro and one rifle bearing Serial No. AB/08/1345 to Jayanta Boro for protection of the Manas National Park. The NIA in course of investigation referred the rifle of Rojen Boro to the Central Forensic Science Laboratory for testing as to whether it was used in the alleged violence and as per the report of the Central Forensic Science Laboratory which is a part of Document No. 145 filed along with charge sheet, that no shot was fired from the same rifle. He further urges that all the five rounds of ammunitions allotted to Rojen Boro were returned to the Page 4 of 10 Criminal Appeal No. 122/2016 Criminal Appeal No. 124/2016 Department and the same were accordingly seized. If the rifle of Rojen Boro was not used and the bullets are still continued to remain unused, the allegation that Rojen Boro killed someone by firing with his gun is prima facie improbable. Coming to case of Jayanta Boro, he submitted that after the rifle No. AB/08/13545 was seized by police, the same got lost and was never placed before the Central Forensic Science Laboratory. Had the same been produced by the authority, it would have fetched a similar report as in the case of Rojen Boro. According to Mr. Borgohain, bald and vague allegations by some of the witnesses made at the initial stage of investigation have lost significance after receipt of further materials including ballistic reports from the Central Forensic Science Laboratory. Besides, the statements of the witnesses furnished under section 173 of the Code of Criminal Procedure do not make out such a case so as to hold that there are reasonable grounds for believing that the accusation made against the petitioners are prima facie true.
5. Per contra, Mr. DK Das, learned senior counsel, vehemently argued that trial of the case has been going on. As many as 29 witnesses have already been examined out of 82 witnesses and so there is no question of granting bail at this stage. He placed on record copies of the statements of following witnesses:-
1. Jesmina Khatun
2. Md. Ramjan Ali
3. Azirun Nessa
4. Abeda Khatun
5. Md. Jallauddin
6. Rafiqul Islam
7. Earful Islam
8. Md. Somesh Ali
9. Marzina Khatun
10. Md. Shahjamal Page 5 of 10 Criminal Appeal No. 122/2016 Criminal Appeal No. 124/2016
11. Mrs. Aisha Khatun
12. Md. Naser Ali According to Mr. Das, statements of these witnesses recorded under section 161 of the Code of Criminal Procedure is sufficient to hold the view that the accusation made against the accused persons are prima facie true.
6. To examine this argument of the learned senior counsel of the NIA, we have carefully gone through the statements of these 12 witnesses. We are aware that at this stage we are not required to appreciate these materials like appreciation of evidence. We have perused these materials only to satisfy ourselves as to whether there is reasonable ground to hold that the accusations are prima facie true.
7. Witness Marzina Khatun merely stated that unknown NDFB terrorists wearing army fatigue were present with forest employees in Khaki uniform. She saw Jayanta Boro who is a forest staff accompanied by 10/15 unknown armed Boro people suspected t o be NDFB who had fired on the villagers. It is not her allegation that Jayanta Boro had fired upon villagers. The incident took place in course of communal tension in the area when there were large number of people present. The place is in the vicinity of the Manas National Park and presence of forest officials in uniform with their allotted arms is quite probable. This is why, it is required to be seen as to whether they were witnessed in course of indulging any violence. According to Marzina Khatun, 3/4 days before the occurrence, Rojen Boro had visited the village along with some unknown Boro people. She apprehended that there was conspiracy of forest officials with NDFB cadres to terrorise and kill villagers belonging to minority community of Muslims, Page 6 of 10 Criminal Appeal No. 122/2016 Criminal Appeal No. 124/2016 particularly when both the officials belong to Boro community. She further stated that NDFB considers the members of her community to be outsiders.
8. Shahjamal also noted Rojen Boro and Jayanta Boro, the forest officials at the place of occurrence who used to freely roam in the interior areas of Manas along with NDFB cadres. He also went to the extent of alleging that the extremists wanted them to vacate the village and there was larger conspiracy between forest officials and NDFB cadres. According to him, unknown NDFB cadres fired upon innocent villagers and Rojen Boro and Jayanta Boro were present there.
9. Mrs. Aisha Khatun made specific allegation that Rojen Boro fired from his rifle to kill her mother-in-law. Incidentally, rifle of Rojen Boro was seized by police and the same was sent for ballistic examination by Central Forensic Science Laboratory. As per the report received which is a part of Document No. 145 annexed to the charge sheet, the rifle of Rojen Boro was not used for firing. Records also show that all the five rounds of ammunitions allotted to him were returned unused and then seized. This being the position, the ballistic report prima facie falsifies the statement of this witness.
10. Similarly, Jesmina Khatun made a vague statement that some forest officials joined NDFB cadres for killing several innocent persons and burning of their dwelling houses but she has not named Jayanta Boro in doing these acts. Though she has made mention of Rojen Boro but allegation is that he was present there with others in khaki uniform which is his official dress. Unless some materials come out in course of trial as to whether Rojen Boro being an official Page 7 of 10 Criminal Appeal No. 122/2016 Criminal Appeal No. 124/2016 witness, was involved in any offence, mere allegation of his presence at site in official uniform prima facie does not appear of any value.
11. Md. Ramjan Ali, another witness as referred to above, alleged that Rojen Boro accompanied Boro terrorists in gruesome firing. Even Rojen Boro visited their village 3/4 days prior to the incident along with unknown Boro persons. According to him, movement of Rojen Boro and Jayanta Boro was suspicious. The allegation of this witness is only as to his suspicion and not of any specific overt act. Reference given by Azirun Nessa about firing on her by Rojen Boro also becomes doubtful in view of the fact that Rojen Boro in official uniform did not make any use of his rifle whatsoever as disclosed in the ballistic report which is a part of the charge sheet. Even if she was fired upon by somebody, she did not speak of sustaining any injury thereby.
12. Abeda Khatun was of the opinion that Rojen Boro and others of Bansbari Range supports NDFB(S) cadres who want them to leave the village. She has not made any specific allegation either about Rojen Boro or Jayanta Boro. She has expressed her apprehension that these two persons have support for the extremist outfit. She also made allegation of firing by Rojen Boro. The depositions of other witnesses are also of the same nature which are based on their suspicion.
13. The allegations that were levelled against Jayanta Boro and Rojen Boro at the initial stage of the investigation appears to have been diluted by further development of investigation by NIA which prima facie established that Rojen Boro and Jayanta Boro being forest officials were allotted with guns and no shot Page 8 of 10 Criminal Appeal No. 122/2016 Criminal Appeal No. 124/2016 was fired from it. The nature of allegation levelled in statements under section 161 of the Code of Criminal Procedure shows that there is a sense of misunderstanding and misgiving between the two communities. Rojen Boro and Jayanta Boro being forest employees are on duty in the Manas National Park away from their home. They were noticed in official uniform when the trouble broke out. It is indicative of the fact that they were on discharge of protecting the forest at the relevant time. The allegation that they support NDFB cadres is still a matter of suspicion by the witnesses. The forest employees posted away from home in the interior posts, are doing hard job at the risk of their life for the protection of forest. They being employees of the Government, there is no apprehension of their fleeing from justice.
14. It is stated at the bar that one Nijwan Basumatary and one Mallajit Kharkatary were also implicated by the villagers. They are forest employees and Single Bench of this court granted them bail under similar circumstances. Those forest employees after being enlarged on bail have not misused their liberty and are facing trial. Moreover, the NIA has no grievance against bail order of these two similarly situated persons of the same incident. In the absence of any material to the contrary, we are not in a position to take a different view in regard to the present two Government employees who have been in custody for more than two years and a half pending trial of RC-02/2014.
15. Having carefully perused the statements of the 12 witnesses furnished to us by the learned senior Standing Counsel of the NIA, we have not come across any serious material against the appellants, more so, when the ballistic report is Page 9 of 10 Criminal Appeal No. 122/2016 Criminal Appeal No. 124/2016 contrary to the statements of the witnesses. On the basis of the materials available on record including the statements and the accompanying documents like ballistic report, letters of the forest department etc., we do not feel that there is reasonable ground for believing that the accusation against the two appellants is prima facie true. Accordingly, we are inclined to grant bail to the two appellants as was granted earlier to Nijwan Basumatary and Mallajit Kharkatary and which has not been sought to be recalled by the NIA till date. The two appeals are accordingly allowed.
16. Appellant Rojen Boro, son of Late Bahadur Boro and appellant Jayanta Boro, son of Karuna Kanta Boro who have in custody since 03.05.2014 in connection with Gobardhana P.S. Case No. 64/2014 corresponding to RC- 02/2014 of Special Court, NIA at Guwahati shall be released on bail on furnishing bond of Rs. 25,000/- each with one local surety of like amount to the satisfaction of learned Judge, Special Court, NIA at Guwahati subject to the following conditions:-
(i) That they shall make themselves available to the court as and when required;
(ii) That they shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court; and
(iii) That they shall not leave the State without previous permission of the court.
JUDGE CHIEF JUSTICE BiswaS Page 10 of 10 Criminal Appeal No. 122/2016 Criminal Appeal No. 124/2016