Jharkhand High Court
Sunil Tudu vs Union Of India (Through Nia) on 13 January, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1293 of 2024
---------
Sunil Tudu, aged about 27 years, son of Sukhlal Manjhi, resident of -Hesakocha, P.O. + P.S.- Chowka, Dist.-Seraikela, Kharsawan, at present R/o Sosodih, P.O. + P.S. Chowka, District-Seraikela, Kharsawan.
... ... Appellant Versus Union of India (Through NIA) ... ... Respondent
---------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR
----------
For the Appellant : Mr. Avishek Prasad, Advocate For the Respondent : Mr. Pankaj Kumar, P.P.
-----------
th 05/Dated: 13 January, 2025 I.A. No.10990 of 2024
1. The instant interlocutory application has been preferred under Section 21(5) of the N.I.A. Act for condoning the delay of 09 days in preferring the instant appeal.
2. Heard learned counsel for the parties.
3. Considering the reason assigned in the interlocutory application and taking into consideration the purport of Section 21(5) of the National Investigation Agency Act, 2008, the delay of 09 days in preferring the appeal is hereby condoned.
4. Accordingly, I.A. No.10990 of 2024 stands allowed. Cr. Appeal (DB) No. 1293 of 2024
1. The instant appeal filed under Section 21(4) of the National Investigation Agency Act, 2008, is directed against the order dated 26.07.2024 passed by the learned Additional Judicial Commissioner-XVI-cum-Spl. Judge, NIA, Ranchi in Misc. 1 Criminal Application No. 1947 of 2024 (Special NIA Case No.04 of 2020 RC 39/2020/NIA/DLI), by which, the prayer for bail of the appellant has been rejected, in connection with Tiruldih P.S. Case No.16 of 2019 registered under Sections 147/148/149/379/302/353/323/324 and 435 of IPC, Section 27 of Arms Act, Section 17 of CLA Act and Sections 10 & 13 of UA(P) Act.
Factual Matrix
2. The brief facts of the prosecution case leading to this Criminal Appeal is that one FIR was registered on the basis of a self- statement of Sub Inspector-Dayanand Ram of Tiruldih P.S., in which, it was stated that on 14.06.2019, several police personnel were on a patrolling duty and had gone to the weekly market at Kuru, for which a station diary entry was made. It has been alleged that at about 5.45 P.M, the driver of the police vehicle namely Sukhlal Kudada had informed the Munshi Bobby Jha through Mobile that about one hour back, the miscreants have murdered the police personnel by assaulting them with 'bhujali' and had also looted arms and ammunitions. This information was entered in the station diary and it was also informed to the higher officials. After sometime, the police force had gone to the place of occurrence and found the dead body of several police personnel at the place of occurrence.
3. Based on the aforesaid allegations, Tiruldih P.S. Case No. 16 of 2019 was instituted for the offences punishable under 2 sections 147, 148, 149, 379, 302, 353, 323, 324, 326 and 435 of the Indian Penal Code, Section 27 of the Arms Act, Section 17 of the Criminal Law Amendment Act and Section 10/13 of the Unlawful Activities (Prevention) Act, 1967.
4. The Central Government through Ministry of Home Affairs in exercise of the powers conferred under section 6 (5) of the NIA Act, 2008 had directed the NIA to take over investigation of Tiruldih P.S. Case No. 16 of 2019. Consequently, the case was re-registered as R.C.- 39/2020/NIA/DLI corresponding to Special NIA Case No. 4/2020.
5. After investigation, 2nd supplementary chargesheet has been submitted against the present appellant who was arrayed as an Accused no.1 (A-1) and the charge under section 120 B,121,121A, 147 / 148 / 149 / 379 / 302 / 353 / 323 / 324,396 and 435 of IPC, Section 27 of Arms Act, Section 17 of CLA Act and under Section 10,13 ,16,18,20,38 and 39 of UAP Act 1967.
6. Consequently, the above-named appellant had preferred the regular bail application vide Cr. Misc. Application No. 1947 of 2024 before the NIA Special Court, Ranchi for regular bail but the same has been rejected vide order dated 26.07.2024 against which the present appeal has been filed. Submission of the learned counsel for the appellant 3
7. Learned counsel for the appellant has assailed the impugned order by taking the following grounds:-
(i) It has been submitted that it is a case where the prayer for regular bail of the appellant has been rejected solely on the basis of the testimony of one eye witness, save and except, as per the learned counsel for the appellant, no incriminating material has come against the appellant.
(ii) It has further been submitted there is no direct culpability shown to be there if the entire material which has been collected in course of investigation will be taken into consideration.
(iii) Petitioner was arrested and forwarded in this case by Tiruldih police on 19/07/2019 and since then he is in custody.
(iv) It has further been submitted that the petitioner is in custody for more than five years. Till date i.e. on 24.07.2024 prosecution has examined only fifteen witnesses out of 138 charge-sheeted witnesses. Due to non-completion of prosecution evidence liberty of petitioner has been curtailed which is violation of fundamental rights of a citizen.
(v) As per the judgment passed by the Hon'ble Apex Court in the case of Union of India Vs. K.A. Najeeb reported in (2021) 3 SCC 713 the personal liberty of the individual has paramount importance, hence, taking into consideration the period of custody, it is a fit case where the appellant deserves to be released from judicial custody.
4
8. Learned counsel for the appellant, based upon the aforesaid ground, has submitted that it is a fit case to show interference with the impugned order.
Submission of the learned counsel for the NIA/respondent:
9. While on the other hand Mr. Amit Kumar Das, learned counsel for the respondent-Union of India has taken the following grounds in defending the order passed by the learned court while rejecting the prayer for regular bail:-
(i) It is a case where the culpability of the appellant has come on the basis of the statement of eye witness who has not only taken the name of the present appellant but also identified him in the TIP.
(ii) The other materials are also there said to be connected, i.e., convening of the meeting in which his active participation has come, having been found on the basis of CDR, one day before the commission of crime while the meeting was conducted and thereafter, the occurrence has been committed resulting into killing of five police personnel.
(iii) Learned counsel further submitted that during investigation protected witnesses namely J and F have identified photo of the accused persons during photo identification parade and categorically stated that the appellant is supporter of CPI Maoist and he used to provide logistic support to the accused persons and his cadre.
Protected witnesses E and F have also stated that the 5 appellant/accused was present during conspiracy meeting organized by the top Maoist commander prior to the commission of the instant crime and he was party to the attacking team of the Kukruhaat incident.
(iv) Further, Petitioner was also identified by sole surviving constable driver Sukhlal Kudada who was eye witness of the instant crime who identified the petitioner during TIP carried out in presence of learned Judicial Magistrate on 7.1.2020. therefore, appellant's prayer for bail is fit to be dismissed u/s 43D (5) of the UA (P) Act as prima facie there is enough materials available against the petitioner. (V) It has further been submitted that the ratio of judgment relied upon by the learned counsel for the appellant as rendered by the Hon'ble Apex Court in the case of Union of India Vs. K.A. Najeeb (Supra), is not applicable in the instant case, reason being that in the aforesaid case, nature and background of the offence was different.
10. 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 identically placed co-accused persons namely Alamgir Ansari; Tabarak Ansari @ Maulana; Soyna Singh Sardar and Naresh Lohar @ Ramu Lohar @ Nam Naresh Lohar @ Ram Naresh Lohar @ Nam Naresh Lohar have also been dealt with and rejected and in support of his argument, the copy of the orders 6 passed by the co-ordinate Bench of this Court have been placed before this Court.
11. Learned counsel for the NIA, based upon the aforesaid grounds, has submitted that it is not a fit case to show interference with the impugned order.
Analysis
12. We have heard the learned counsel for the parties and gone through the averment made in the present memo of appeal, the finding recorded by the learned court in the impugned order, as also, the averment made in the case diary along with the extract of the charge-sheet which has been appended thereto.
13. 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).
14. 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 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 7 provide for more effective prevention of certain unlawful activities.
15. 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.
16. 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.
17. 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) 8 stands a person who is or continues to be a member of such association shall be liable to be punished.
18. 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.
19. 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.
20. The consideration of bail which is to be taken into consideration by the Court as per the parameter fixed under Section 43-D(5) of the Act, 1967 has elaborately been dealt with by 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 9 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 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 10 grounds for believing that the accusation against such person is "prima facie" true. By its very nature, the expression "prima facie true"
would mean that the materials/evidence
collated by the investigating agency in
reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of the accused "not guilty" of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act...."
21. 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 11 materials on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not.
22. 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.
23. 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, paragraphs 24 and 25 of the aforesaid judgment are 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 12 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 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." 13
24. 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.
25. 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, 14 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."
26. 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.
15
27. 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.
28. 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' must be searched from the case diary and the final report submitted before the Special Court.
29. 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).
30. 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 16 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 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 scrutinising the justifications [materials on record]. This standard can be contrasted with the standard of 17 'strong suspicion', which is used by Courts while hearing applications for 'discharge--"
31. The Hon'ble Apex Court in the aforesaid judgment after textual reading of Section 43D(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 summarised in the form of a twin-prong test:
1) Whether the test for rejection of the bail is satisfied?
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')?"
32. 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.
33. Further, it is the duty of the Court to record its opinion that the accusation made against the accused concerned is prima 18 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.
34. 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.
35. From the record, it is evident that the Counter affidavit has been filed by the respondent wherein the 2nd charge-sheet has been appended.
36. It is evident from the counter affidavit that the appellant has been charge-sheeted accused (A-1) of the instant case.
37. This Court, on the basis of the aforesaid material and settled proposition of law as discussed hereinabove has considered the culpability shown to be committed as has been surfaced in course of investigation as available in the charge-sheet has found that the appellant, namely, Sunil Tudu (A-1) was a member of CPI (Maoist). He used to provide logistic support to A-17. On 12.06.2019, A-1, along with A-4 and A- 11, went to Arhanja forest (place of meeting) to meet A-17. On 13.06.2019, A-1 attended meeting conducted by A-19 and A-17 to carry out terrorist attack on the police personnel. On 14.06.2019, A-1 took 19 along one another co-accused on motorcycle, Hero-X-Pro model bearing registration No- JH01-BH5495 (provided by A-4), and went to Kukruhaat Baazar and was involved in the killing of Police personnel and looting of their weapons. It is evident from the material so collected that the appellant was also identified by sole surviving constable driver Sukhlal Kudada who was eye witness of the instant crime who identified the appellant during TIP carried out in presence of learned Judicial Magistrate on 7.1.2020.
38. Further, as would be evident from paragraph-17.36.1 of the supplementary charge-sheet which pertains to role and additional offences established against the present appellant, namely, Sunil Tudu (A-1) that Investigation has established that A-1 was a member of CPI (Maoist). He used to provide logistic support to A-17. On 12.06.2019, A-1, along with A-4 and A- 11, went to Arhanja forest (place of meeting) to meet A-17. On 13.06.2019, A-1 attended meeting conducted by A-19 and A-17 to carry out terrorist attack on the police personnel. On 14.06.2019, A-1 took along one another co-accused on motorcycle, Hero-X-Pro model bearing registration No- JH01- BH5495 (provided by A-4), and went to Kukruhaat Baazar and was involved in the killing of Police personnel and looting of their weapons. After commission of offence, A-1 accompanied and broughtA-18 and one another co- accused, on motorcycle, to Saudih and left them there.
20
39. Therefore, as per averments made in pre-Para, it is established that A-1 became a member of CPI (Maoist), a proscribed organization, and participated in the meeting in which conspiracy was hatched among co-accused with common intention to assemble with deadly weapons at Kukruhaat to carry out terrorist attack on the police patrolling party. The appellant (A-1) participated in the incident which resulted in the killing of 05 police personnel and subsequently, snatching/looting of Government issued arms and ammunitions, wireless set and setting the vehicle on fire.
40. Thus, it appears from the aforesaid paragraph of the charge- sheet that the appellant was close associate of the CPI Maoist a banned terrorist organisation declared by the Govt. of India and on the basis of material brought on record it appears that the appellant was part of the criminal conspiracy hatched with association and direction of armed cadres of CPI Maoist.
41. Thus, it appears from the content of the charge-sheet that there is prosecutable evidence against the appellant which is supported by documentary evidence of the chargesheet.
42. Learned counsel for the appellant has taken the ground of custody and has also taken the aid of the judgment passed by the Hon'ble Apex Court in the case of Union of India Vs. K.A. Najeeb (supra).
43. It has been contended by taking aid of the aforesaid judgment that in the instant case there is no probability in near future that trial will be concluded, hence, taking into consideration the period 21 of custody, and probable delay in trial, it is a fit case where the appellant deserves to be released from judicial custody.
44. While, on the other hand, learned counsel appearing for the respondent has seriously disputed the aforesaid fact apart from the merit that the present appellant is having a close association with the CPI (Maoist) a banned organization and in the said occurrence wherein the present appellant had played active role in which 5 police personnel has been killed and Arms and ammunition have been looted.
45. The contention has been made that the judgment relied upon by the learned counsel for the appellant i.e. the judgment rendered by the Hon'ble Apex Court in the case of Union of India Vs. K.A. Najeeb (Supra), is not fit to be accepted, reason being that in the said case, 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.
46. But here in the instant case, the appellant is closed associate by giving direct aid to the Naxal outfit and involved in alleged commission of crime which resulted into death of 05 police personnel. Further, on instruction, it has been submitted by the learned counsel appearing for the Respondent that the 22 prosecuting authority depending upon the situation will also reduce the number of witnesses and try to conclude the trial without any unnecessary delay as such in aforesaid fact the judgment as relied by the learned counsel for the appellant is not applicable in the facts of the instant case.
47. Considering the above facts and circumstance and after going through the evidence of the prosecution witnesses, chargesheet and other documentary evidence recorded by the NIA it is evident that there is direct and serious allegation against the appellant that in nexus with the member of proscribed organization, and participated in the alleged occurrence wherein 05 police personnel were killed and arms and ammunition have been looted.
48. 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, the Hon'ble Apex Court has not interfered in the order by which the bail was granted to respondent-
accused.
23
49. While, the fact of the instant case is that there are only 138 witnesses as per the charge-sheet which is very much less in comparison to 276 witnesses of aforesaid case.
50. Further, in the instant case it has been submitted by the learned counsel appearing for the state 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.
51. Further, charge in this case has been framed against the appellant Sunil Tudu (A-1) and Seventeen other accused persons on 25.01.2023 under section 120B read with section 149, 121, 121A, 148, 302, 323, 324, 326, 353, 379, 395, 396, 435 of IPC, section 10, 13, 16, 18, 20, 38, 39 of UA(P) act, 1967, section 27 of Arms Act, 1959, section 17 of CLA Act, 1967 and till date prosecution has examined Fifteen chargesheet witnesses out of 138 cited witnesses.
52. Further, in the instant case the role of appellant in criminal conspiracy which is very serious in nature and appellant worked as overground worker and as per direction of A-17 he carried out Recce of Kukruhaat Bazaar. He briefed movement of the police with A 17 and A 19 and he attended meeting in Arhanja forest, he was part of Maoist team which attacked police personnel in which five police personnel were killed and Government arms ammunitions were looted and police vehicle was burnt.
53. This Court considering the aforesaid distinguishing fact in the present case by taking into consideration the active 24 involvement of the appellant with the banned organization and further taking in to gravity of the offence, is of the view that the judgment rendered by the Hon'ble Apex Court in the case of Union of India vs. K.A. Najeeb (Supra) is not fit to be applied herein.
Conclusion
54. This Court, therefore, is of the view that sufficient material has been surfaced by the investigating agency showing the culpability said to be committed by the appellant and as such, this Court is of the view that it is not a fit case where it can be said that the allegation which has been levelled and surfaced in course of investigation is prima facie untrue.
55. Further, the prayer for regular bail of the other co-accused persons, namely, Alamgir Ansari; Tabarak Ansari @ Maulana; Soyna Singh Sardar and; Naresh Lohar @ Ramu Lohar @ Nam Naresh Lohar @ Ram Naresh Lohar @ Nam Naresh Lohar have already been dealt with by the co-ordinate Bench of this Court and have been rejected vide orders dated 17.01.2023 passed in Criminal Appeal (DB) No. 1226 of 2022; order dated 17.01.2023 passed in Criminal Appeal (DB) No. 1272 of 2022; order dated 21.09.2022 passed in Criminal Appeal (DB) No. 234 of 2022 and; order dated 18.08.2023 passed in Criminal Appeal (DB) No. 1539 of 2022, respectively.
56. Accordingly, this Court, on the basis of the facts as referred hereinabove and coming to the provision of Section 43D(5) of the Act, 1967 as also the judgment rendered by the Hon'ble 25 Apex Court in the case of Zahoor Ahmad Shah Watali (supra) and Gurwinder Singh Vs State of Punjab and Another(supra) is of the view that it cannot be said that the allegation levelled against the appellants is prima facie untrue.
57. In view of the foregoing discussions, we find no illegality in the impugned order dated 26.07.2024 passed in Misc. Criminal Application No.1947 of 2024 by the Additional Judicial Commissioner-XVI-cum-Spl. Judge, NIA, Ranchi rejecting the bail petition of the appellant, as such, order impugned requires no interference by this Court.
58. In the result, we find no merit in the instant appeal, hence, the same is, hereby, dismissed.
59. Pending Interlocutory Application(s), if any, also stands dismissed.
60. 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.) (Navneet Kumar, J.) Rohit/-A.F.R. 26