Jharkhand High Court
Naresh Lohar @ Ramu Lohar @ Nam Naresh ... vs The Union Of India Through National ... on 18 August, 2023
Bench: Shree Chandrashekhar, Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 1539 of 2022
-------
Naresh Lohar @ Ramu Lohar @ Nam Naresh Lohar @ Ram Naresh Lohar
@ Nam Naresh Lohar, aged about 36 years, son of Late Suren Lohar,
resident of Village Hesakocha, Bondudih, P.O. and P.S. Chowka, District
Seraikella Kharsawan, Jharkhand ......Appellant
Versus
The Union of India through National Investigating Agency
... Respondent
---------------
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
For the Appellant : Mr. Zaid Ahmed, Advocate
For the NIA : Mr. Amit Kumar Das, Advocate
: Mr. Saurav Kumar, Advocate
---------------
ORDER
th 18 August 2023 Per, Shree Chandrashekhar, J.
Naresh Lohar moved an application vide Misc. Criminal Application No. 1509 of 2022 seeking bail in NIA Case RC 39/2020/NIA/DLI and the aforesaid application has been dismissed by an order dated 05th November 2022.
2. Naresh Lohar has now filed this Criminal Appeal for bail primarily on the ground that during the investigation of Tiruldih P.S. Case No. 16 of 2019 by the State police he was granted bail by this Court in B.A. No. 1017 of 2020 vide order dated 13th February 2020.
3. Mr. Zaid Ahmed, the learned counsel for the appellant would submit that once the accused has been granted bail for the offence of murder the rigors of section 43-D of the Unlawful Activities (Prevention) Act, 1967 [in short "UA(P)A"] cannot apply to reject the prayer for bail.
4. Briefly stated, in Tiruldih P.S. Case No. 16 of 2019 was lodged on 15th June 2019 under sections 147/148/149/379/302/353 and 435 of Indian Penal Code, section 27 of the Arms Act, section 17 of CLA Act, and section 13 of the UA(P)A against seventeen unknown members of 2 Criminal Appeal (DB) No. 1539 of 2022 CPI Maoist which according to the prosecution is a proscribed terrorist organization and who were responsible for the occurrence in which five police personnel were killed. During the investigation, role of forty-one members of the CPI Maoist organization emerged in commission of the crime and, later on, nine other accused including Naresh Lohar were sent up for trial through a supplementary charge-sheet dated 10th January 2020. It further appears that two other accused were brought to the Court through a supplementary charge-sheet dated 28th March 2020 and the Additional Chief Judicial Magistrate at Seraikela took cognizance of the offence and issued summons to eleven accused including Naresh Lohar.
5. This is also not in dispute that by virtue of the notification dated 07th December 2020 issued in exercise of the powers under section 6(5) of the National Investigation Agency Act, 2008, the investigation of Tiruldih case was transferred to the NIA and, thereafter, the NIA has re-registered Tiruldih case as RC 39/2020/NIA/DLI.
6. This is the case pleaded by the NIA that in course of the investigation a larger conspiracy was unearthed and supplementary charge-sheets were filed against eleven other accused persons. It further appears that many accused are still absconding in respect to whom 3 rd and 4th supplementary charge-sheets have been laid by the NIA.
7. In the order dated 05th November 2022, the Special Judge has made a detailed reference of seizures made during the course of investigation, identification by the protected witnesses and the confessional statements of as many as eight accused. According to the NIA, role played by Naresh Lohar who has been arrayed as A-4 in Special NIA 04/2020 is that he took part in the meeting in which a conspiracy was hatched and it was decided that the members of CPI Maoist organization shall assemble with deadly weapons at Kukruhaat and carry out terrorist attack on police patrolling party for looting arms and ammunitions, wireless sets and other articles.
8. Mr. Amit Kumar Das, the learned counsel for the NIA has contended that the UA(P)A being a special Statute the provisions therein shall have overriding effect and while so, the requirements under section 43-D must be fulfilled before the accused is granted bail. The learned counsel for the NIA has stated, with reference to the orders 3 Criminal Appeal (DB) No. 1539 of 2022 passed by a coordinate Bench of this Court, that criminal appeals for bail filed by Tabarak Ansari, Soyna Singh Sardar and Alamgir Ansari have been rejected.
9. In the first place, we may indicate that the orders rejecting prayer for bail of the co-accused though may have persuasive value but the same cannot be a ground to mechanically reject the prayer for bail made by another accused provided he demonstrates before the Court that the role played by him was entirely different. With this in our mind, we have examined the materials on record and come to a conclusion that the appellant is not entitled for bail.
10. The preamble to the UA(P)A recites that this Act has been brought to the Statute book to provide for the more effective prevention of certain unlawful activities of individuals and associations and for "dealing with terrorist activities", and for the matters connected therewith. The expression "for dealing with terrorist activities" has been incorporated by Act 29 of 2004 to widen the scope of the UA(P)A, in the wake of the resolutions passed by the Security Council of the United Nations. The scope of the UA(P)A is so wide that it includes economic security as defined under section 2(ea) which was incorporated by Act 3 of 2013. The expression "person" as defined under section 2(ec) includes (i) an individual, (ii) a company, (iii) a firm, (iv) an organisation or an association of persons or a body of individuals, whether incorporated or not, (v) every artificial juridical person, not falling within any of the preceding sub-clauses, and (vi) any agency, office or branch owned or controlled by any person falling within any of the preceding sub-clauses. Similarly, the terms "property", "terrorist act", "terrorist gang", "terrorist organisation", "unlawful activity", "unlawful association" etc. have been defined in such a manner to give wider amplitude to these terms.
11. Section 15 of the UA(P)A defines "terrorist act" to include such acts which are intended to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country. The offending acts which are included in section 15 include even injury to any person or persons, loss of or damage to or destruction of property, disruption of any supply or services essential to the life of the 4 Criminal Appeal (DB) No. 1539 of 2022 community, damage to the monetary stability of India or damage to property in a foreign country used or intended to be used for the defence of India. Under clause (b) to sub-section (1) of section 15 the act to overawe by means of criminal force or the show of criminal force or attempt to do so or causing death of any public functionary or attempts to cause death of any public functionary, and under clause (c) the act of detention, kidnapping, abduction etc. have been included within the meaning of "terrorist act".
12. Section 15 of the UA(P)A is extracted as under :
"15. Terrorist act.--(1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security 26, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,--
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause--
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or (iii-a) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or
(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter-governmental organisation or any other person to do or abstain from doing any act; or commits a terrorist act.
Explanation.--For the purpose of this sub-section,--
(a) "public functionary" means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;
(b) "high quality counterfeit Indian currency" means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates compromises with the key security features as specified in the Third Schedule. (2) 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."
13. Section 16 provides the punishment for terrorist act which is punishable with death or imprisonment for life, and shall also be liable 5 Criminal Appeal (DB) No. 1539 of 2022 to fine. This is also a relevant fact that the NIA has included several other offences including the offence under section 396 of the Indian Penal Code under which the accused are prosecuted in Special NIA 04 of 2020. There is a provision in the UA(P)A for the raising of a statutory presumption which the Court shall raise unless the contrary is shown.
14. Section 43-E of the UA(P)A reads as under:
"43-E. Presumption as to offences under section 15.- In a prosecution for an offence under section 15, if it is proved.-
(a) that the arms or explosives or any other substances specified in the said section were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of a similar nature were used in the commission of such offence; or
(b) that by the evidence of the expert the finger-prints of the accused or any other definitive evidence suggesting the involvement of the accused in the offence were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence, the Court shall presume, unless the contrary is shown, that the accused has committed such offence."
15. Furthermore, section 47 of the UA(P)A which is captioned as "Bar of jurisdiction" provides that no proceeding taken under the UA(P)A shall be called in question in any Civil Court in any suit or application or by way of appeal or revision, and no injunction shall be granted by any Civil Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
16. With the aforesaid distinct features incorporated in the UA(P)A, it was lawful for the Special Judge to examine whether or not the condition as provided under section 43-D as to existence of a prima facie case against the accused is present.
17. In "NIA v. Zahoor Ahmad Shah Watali" (2019) 5 SCC 1, the Hon'ble Supreme Court has discussed the parameter for applying sub-section (5) to section 43-D, thus;
"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 6 Criminal Appeal (DB) No. 1539 of 2022 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 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........"
18. Having regard to the aforesaid facts, gravity of the offence and the manner in which terrorist attack was made on the police party in which five police personnel have lost their lives, we do not find any merit in this criminal appeal and, accordingly, Cr. Appeal (DB) No. 1539 of 2022 is dismissed.
(Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) Saurav/Pankaj-