Gauhati High Court
Unknown vs National Investigation Agency (Nia) on 27 June, 2022
Author: Malasri Nandi
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/15
GAHC010163612020
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh )
Case No: CRL. A 201 of 2020
Jai Kishan Sharma
S/O- Late Manohar Lal Sharma, R/O- Khonsa Bazar, P.O. And P.S.
Khonsa, Dist.- Khonsa, Arunachal Pradesh, Pin- 792130.
...............................appellant/petitioner
VERSUS
National Investigation Agency (NIA),
SC, NIA
...............................respondent
:: BEFORE ::
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MRS. JUSTICE MALASRI NANDI
For the Appellant/Petitioner : Mr. A.M. Bora, Senior Advocate
Mr. B. Bhagawati, Advocate
For the Respondents : Mr. R.K.D. Choudhury, A.S.G.I.
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Date of Hearing : 13.06.2022
Date of delivery of
Judgment and Order : 27.06.2022
JUDGMENT & ORDER (CAV)
Malasri Nandi, J.
1. Heard Mr. A. M. Borah, learned senior counsel assisted by Mr. B. Bhagawati, learned counsel appearing for the appellant. Also heard Mr. R.K.D. Choudhury, learned Assistant Solicitor General of India appearing for the respondent.
2. This is an appeal filed by the appellant u/s 21(4) of the National Investigating Agency (NIA) Act, 2008 against the order of rejection of bail dated 28/09/2020 passed in BA No - 05 & 22/2020 by the Learned Special Judge NIA, YUPIA, Papumpare, Arunachal Pradesh, in connection with the NIA case no. RC - 03/2019/NIA/GUW u/s 302/307/34 IPC read with Section 25 (1b) (a)/27 Arms Act and Section 10/13 UA (P) Act.
3. The brief facts of the case is that on 21/05/2019 while Tirong Aboh, sitting MLA of Arunachal Pradesh, his son along with 14 others including his four PSO's coming from Dibrugarh towards Khonsa in four vehicles were ambushed and attacked by some unknown persons with sophisticated weapons near Pansumthong village area. In the said incident, Tirong Aboh, his son and ten others were killed and three persons were injured. In this regard, police initially registered a case being Khonsa P.S. Case no. 28/2019 u/s 302/307/34 IPC read with section 25 (1b) (a)/ 27 of Arms Act and 10/13 of UA (P) Act and started investigation. After 6 days i.e. on 27/05/2019 another FIR was lodged by Smt. Shakat Aboh, wife of the deceased MLA at the Khonsa Police Page No.# 3/15 station. Subsequently, this case was handed over to NIA for investigation and the case was re-registered vide no. RC-3/2009/NIA/GUW.
4. During investigation, the present appellant alongwith other accused were arrested. Subsequently, bail application was filed before the Special Judge, NIA, Yupia, Papum Pare, A.P. which was rejected as aforesaid. Hence, this appeal.
5. Learned senior counsel for the appellant Mr. A.M. Bora has argued that the appellant is the resident of Khonsa, Arunachal Pradesh and engaged in construction/transport and other businesses and was known to police and Para military forces, politician and other locals and he is law abiding citizen who belongs to a reputed family of the locality. It is further stated that in regard to the death of MLA Tirong Aboh and ten other persons, a case was registered on the date of incident at Khonsa Police station vide Khonsa P.S. case no 28/2019 but subsequently after 6 days i.e. on 27/05/2019, the wife of the deceased MLA Smt. Shakat Aboh also lodged an FIR at the Khonsa Police station alleging that the persons named in the FIR are from Laho and Kheti villages and Lazo belt who had strong enmity with her late husband Tirong Aboh during the election process. They had also made threatening calls to her husband, as such she strongly suspected that the listed persons had nexus with the underground groups in committing the murder of her husband and son. But the name of the present appellant has not been mentioned in the FIR lodged by the wife of the deceased MLA.
6. It is also the submission of learned senior counsel for the appellant that in the course of investigation, the appellant was arrested along with Luckin Mashangva and Page No.# 4/15 two others on 22/08/2019 who were already in custody of East Dimapur (Nagaland) Police station in connection with FIR no 204/2019 dated 21/08/2019 u/s 384/34 IPC. It has been alleged in the charge sheet that the appellant was found in possession of huge cash and the case was transferred to NIA and in turn NIA re-registered the case being RC- 10/2019/NIA/GUW dated 17/09/2019 following which a charge sheet no. 04/2020 dated 14/02/2020 was filed u/s 120 B/384 of IPC and section 17 of UA (P) Act against four accused persons including the present appellant before the Special Judge, Dimapur.
7. According to learned senior counsel for the appellant, the allegation against the appellant is that he along with the accused Luckin Mashangva had conspired with other accused persons to commit the act of killing Tirong Aboh and ten others. They were members of the terrorist gang of NSCN (IM). The appellant raised funds for the terrorist gang of NSCN (IM) for killing of Tirong Aboh and his associates. The appellant financed the terrorist gang in support of the terrorist act. But the prosecution has failed to bring any evidence or transaction meant to execute the incident dated 21/05/2019 within the meaning of section 17 of the UA(P) Act as such under no circumstances it can be suggested that the appellant in any way financed the alleged commission of offence on 21/05/2019.
8. It is further submitted that the Special Judge, NIA, had failed to appreciate the facts that the prosecution with a view to prove that the appellant had monetary transaction with some of the activists through banks, had filed certain documents of monetary transactions which are much prior to the date of alleged incident i.e. Page No.# 5/15 21/05/2019.
9. Learned senior counsel for the appellant has also referred to the statement of some protected and other witnesses in the course of his argument- PWs 115/116/119/34/51/52 and 59. Learned senior counsel for the appellant has further contended that from the statement of such protected and other witnesses, it cannot be ascertained that the appellant had hatched a conspiracy with the other accused persons for killing of the deceased MLA, Tirong Aboh.
10. The last limb of argument of the learned senior counsel for the appellant is that from the charge sheet and the accompanying materials it cannot be construed that the appellant was maintaining any relationship with the NSCN (IM). The Learned Special Judge NIA, instead of examining and appreciating the materials on record as to whether there are reasonable ground for believing that the allegations/accusations against the present appellant is prima facie true and whether there are prima facie materials to implicate the appellant with the alleged commission of offences, mechanically rejected the bail prayer on the irrelevant ground that some accused persons are yet to be arrested.
11. Learned senior counsel for the appellant has also contended that the appellant is innocent. He has been falsely implicated in this case. He is not even remotely connected with the alleged commission of offence and prayed to release the appellant on bail on any condition.
12. Leaned senior counsel of the appellant has submitted one case law in support of his submission, (2021) 4 SCC 704 (Sudesh Kedia v. Union of India).
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13. In reply, learned ASGI representing the NIA, Mr. R.K.D. Chaudhury has submitted that the instant case is related to the killing of MLA, Tirong Aboh along with ten others on 21/05/2019. Deceased Tirong Aboh was contesting the assembly election from National Peoples Party in Arunachal Pradesh from Khonsa West constituency against BJP candidate Mr. Phawang Lowang. During the course of investigation, the appellant was arrested in connection with the instant case. Further investigation has established that the accused/appellant had collected funds on the basis of tenders and contract work from other sub- contractors for the terrorist gang of NSCN (IM). It is alleged that the appellant was having telephonic connectivity with the members of terrorist gang of NSCN (IM) and also financed them for terrorist activity.
14. According to learned ASGI, during investigation it was established that the accused/appellant conspired with other accused persons for the act of killing Tirong Aboh and others. Investigation has established his presence in the Khonsa area on the date of incident i.e. 21/05/2019. Investigation also reveals that the appellant also concealed his presence and disappeared from Khonsa town after the incident. The appellant used multiple mobile phone numbers to call the members of NCSN (IM). It is further alleged that the accused/appellant had made multiple cash transactions with the underground organisation as well as the government officials. Such entries were made in the registers which were seized during investigation.
15. It is further submitted that the provisions of section 43 D (5) and (6) of UA (P) Act, 1967 applies right from the stage of registration of FIR for the offence under Page No.# 7/15 Chapters IV and VI until the conclusion of the trial. The proceeding of the instant case is at crucial stage. The NIA is yet to arrest the other suspects who are involved in the conspiracy and the terrorist activities and if the accused/appellant is released on bail, there is every likelihood that he will threaten the prosecution witnesses, hamper further proceedings of the case and he may even influence in the conduct of the trial. If bail is granted to the accused/appellant at this stage, it will cause great hardship to the prosecution and prayed to reject the bail.
16. In support of his submissions, learned counsel cited one case law (i) 2019 (7) SCJ 261 (NIA v. Zahoor Ahmed Shah Watali) (ii) Bail order of co-accused Luckin Mashangva in criminal appeal no 7/2020 dated 23/02/2021 (iii) rejection of quashing order of criminal proceeding in RC- 03/2019 NIA/GUW passed in connection with W.P (Crl) 3 2021 dated 25/04/2022.
17. Having heard learned counsel for the parties and perusal of the record it is necessary to set out sub sections 5, 6 and 7 of section 43 D of UA (P) Act-
"(5) notwithstanding anything contained in the code, no person accused of an offence punishable under chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the public prosecutor has been given an opportunity of being heard on the application for such release.
Provided that such accused persons shall not be released on bail or on his own bond if the court on a perusal of the case diary or the report made u/s 173 of the code, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
Page No.# 8/15 (6) The restrictions on granting of bail specified in sub section (5) is in addition to the restrictions under the code or any other law for the time being in force on granting of bail.
(7) Notwithstanding anything contained in sub sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing "
18. From bare reading of sub sections (5) and (6) of section 43 D of the UA (P) Act, it is abundantly clear that a person accused of an offence punishable under chapters IV and VI of UA(P) Act shall not be granted bail unless following two conditions are satisfied -
(i) That the public prosecutor has been given an opportunity of being heard; and
(ii) That the court on perusal of the case diary or the report made u/s 173 of Cr.P.C is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie not true
19. The aforesaid two restrictions on grant of bail engrafted in sub section (5) of UA (P) Act are in addition to the restrictions made in the Code of Criminal Procedure or any other law for the time being in force on granting of bail. The term "bail" essentially means release of an accused awaiting trial or subject to furnishing of security by the accused that he will submit whenever demanded by the legal Page No.# 9/15 authority. The application for bail under the provisions of Cr.P.C. can be accepted or rejected on various grounds such as nature of offence, the manner in which such offence is committed, severity of punishment, risk of tempering with the evidence or witnesses, etc. The object behind the denial of bail is always preventive as opposed to punitive. The bail in the bailable offence is a matter of right and subject only to furnishing of security as an assurance of the accused for his or her submission whenever demanded by legal authority, whereas in the matter of non- bailable offences, it is the discretion of the court which of course is to be exercised by the court on well defined parameters of law. The most fundamental distinction between the general bail provisions and the bail provision engrafted under UA(P) Act owes its origin to sub section (5) of section 43 D of UA (P) Act which in addition to the general restrictions on the grant of bail imposed by the Cr.P.C. also provides that the person accused of an offence punishable under Chapters IV and VI of UA (P) Act shall not be released unless the public prosecutor has been given an opportunity of being heard and if the court is of the opinion that there are reasonable grounds for believing that accusations against such persons is prima facie true. It is, thus, clear that the regular bail provisions under UA (P) Act are distinct from similar provisions made in other enactments. While most of the statues require recording of an opinion by the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence but UA(P) Act requires recording of an opinion by the court deciding the bail that there are grounds for believing that accusations against such person is prima facie true. The expression "prima facie" true would mean that the material/evidence collected by the investigating agency in reference to the Page No.# 10/15 accusations against the concern accused in the FIR must prevail until contradicted, overcome or disapproved by other evidence and on the face of it shows the complicity of such accused in the commission of stated offence.
20. The Hon'ble Supreme Court in the case of NIA v. Zahoor Ahmed Shah Watali, reported in (2019) 5 SCC 1, has held that the exercise to be undertaken by the court at the time of considering the bail plea of the accused is markedly different from discussing the 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.
21. Undoubtedly, grant of bail is a discretion but this discretion is to be used judiciously. Grant or denial of bail for commission of offences under UA(P) Act is a power of the Designated Court which is required to be exercised on the well settled legal parameters led down in the Cr.P.C for grant of bail hedged by Section 43 D (5) of UA (P) Act. Be that as if may, Section 43 D of UA (P) Act embodies a provision which can be viewed by some as an onslaught on personal liberties but there could be no denying the fact that the personal liberties have to be balanced against the considerations of public interest. While considering the bail application under UA (P) Act particularly in relation to a person accused of an offence punishable under chapters IV and VI of UA (P) Act the courts while keeping in mind the rigours of sub section (5) of section 43 D of the UA (P) Act, should not forget that there is presumption of innocence in favour of the accused till he is proved guilty. This Page No.# 11/15 presumption is available to a person accused of any offence under UA (P) Act, except the offence under section 15 of the said Act. Section 43 E of UA (P) Act provides for reverse burden in relation to the offence under section 15 of the said Act.
22. In the instant case, the appellant is not charged with section 15 of UA (P) Act and therefore reverse burden provision contained in section 43 E of the UA (P) Act is not attracted. When we view the instant case in the light of settled legal position, we find that the trial court has not exercised the discretion in consonance with the settled legal principles on grant or refusal of the bail. As per the order of the learned Trial court dated 28/09/2019 the bail was rejected on the ground that the crime committed by the accused persons are grave and very serious in nature wherein the sitting MLA, his son and 13 others have been killed with full proof planning and conspiracy. The involvement of many more accused persons cannot be ruled out and for which NIA team are doing their investigation to prove the case and the co- accused are yet to be arrested in the case and are stated to be on run, evading their arrest. As such releasing the applicant-accused on bail at this stage may hamper the investigation of the case.
23. After two years of passing of the said order, the status of the case has been changed. According to NIA, though the first charge sheet has been submitted, there is likely to file subsequent charge sheet on arrest of other accused persons. The present appellant has been charge sheeted in connection with RC - 03/2019/NIA/GUW u/s 302/307/34 IPC and section 25(Ib) (a) and section 27 of Arms Act and section10/13 of UA (P) Act alongwith other accused persons.
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24. As per charge sheet, it is alleged that the conspiracy of the instant terrorist act i.e. killing of the MLA, Tirong Aboh and his associates was hatched by one Rockwang Tangkhul @ Absolom Tangkhul who was the self styled major general of NSCN (IM) along with the present appellant and some politician to give undue political benefits to others but unfortunately the person who alleged to be hatched conspiracy with the present appellant i.e Rockwang Tangkhul @ Absolon Tangkhul has not been chargesheeted in the case. He was also not shown as absconder accused in the charge-sheet.
25. In the charge sheet, it is also alleged that the present appellant went to Dimapur for handing over collected funds raised for terrorist organisation like NSCN (IM) through accused Luckin Mashangva and James Kiwang. The appellant also paid money through James Kiwang and Luckin Mashangva and others for killing of deceased MLA, Tirong Aboh and ten others. While the appellant was in Dimapur to hand over the cash to NSCN (IM), he was arrested with cash along with the accused Luckin Mashangva at Dimapur for which another case was registered vide RC - 10/2019/ NIA/GUW.
26. Another allegation was that the appellant was telephonically in touch with the other conspirators and the leaders of the NSCN (IM) through his personal mobile no. He used multiple mobile numbers to call the terrorists members of NSCN(IM).
27. From bare reading of the final report, it is abundantly clear that the prosecution is relying on the materials collected during the investigation which only points to the appellant having been found with cash in the company of another Page No.# 13/15 accused Luckin Mashangva and absconder accused James Kiwang but James Kiwang was not shown as accused or absconder accused in the charge sheet. Prima facie we could not find any allegation in the final report which shows the association of the appellant with any terrorist organisation like NSCN (IM) and that he hatched conspiracy with the members of the NSCN (IM) for killing of the MLA, Tirong Aboh and his associates. There is nothing believable on record to demonstrate that the appellant had supported any terrorist organisation by helping them monetarily. Simply because the appellant had been seen on some occasions with a person with doubtful credentials cannot itself lead to the conclusion that the appellant is either a member of a terrorist organisation or is lending support to such organisation with an intention to further his activities or he hatched conspiracy with the members of NSCN (IM) for committing murder of Tirong Aboh and his associates.
28. Viewed from any angle, the evidence assembled by the investigating agency and relied upon by the prosecution to prosecute the appellant even if accepted as it is without any denial or rebuttal by the appellant, is not such on the basis of which the court can formulate an opinion that the materials collected during the investigation are prima facie true. The evidence as is gathered by the prosecution is too sketchy to be believed prima facie true, that too, with a view to deny bail to the appellant.
29. The gravamen of allegation against the appellant is that he hatched conspiracy with the members of NSCN (IM) for killing of the sitting MLA, Tirong Aboh and his ten associates. He also raised funds for supporting the terrorist organisation. On the close scrutiny of the materials placed on record in the shape of statement of Page No.# 14/15 various witnesses, the prosecution appears to have prima facie established that the appellant was seen along with James Kiwang and one Rockwang Tangkhul @ Absolom Tangkhul, underground workers of NSCN (IM). The appellant had gone to give money to another accused Luckin Mashangva and both of them were caught red handed at Dimapur with huge amount of money. Whether this meeting was aimed at supporting the terrorist organisation by providing funds and other logistics is not substantiated by any of the statements of the witnesses recorded during investigation. There is no evidence on record which, prima facie, shows that the association of the appellant with the aforesaid terrorists was with an intention for the act of killing MLA, Tirong Aboh and his associates.
30. Keeping in view the totally of the circumstances and the discussion made herein above, we are of the considered view that this appeal deserves to be allowed. The appellant is allowed to go on bail of Rs.1,00,000/- (Rupees One Lakh only) with two suitable sureties of the like amount out of whom one will be government employee, subject to the satisfaction of learned Special Judge NIA, YUPIA, Pampumpare, AP. This order shall be subject to the following conditions -
(i) The appellant will make himself available before the investigating officer of the case as and when required to do so.
(ii) That he will not leave the state of Arunachal Pradesh without prior permission of the learned trial court.
(iii) That he shall surrender his passport, if any, before the investigating officer against proper receipt and
(iv) That he will appear before the learned trial Court on each and every date of the case.
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31. Before parting with we make it clear that the observations made in this order are restricted to the disposal of this appeal only and shall not be construed as an expression of opinion on the merits of the case.
32. The criminal appeal stands disposed of.
JUDGE JUDGE Comparing Assistant