Jharkhand High Court
Balram Sahu @ Bolo @ David @ Raju @ Ali Khan vs The Union Of India Through National ... on 3 April, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1375 of 2023
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Balram Sahu @ Bolo @ David @ Raju @ Ali Khan, aged 46 years, Son of Dhirendra Sahu @ Dhiren Sahu, resident of Kurli Khunti, Chowka, P.O. and P.S. Chowka, District-
Seraikella Kharsawan. ... ... Appellant
Versus
The Union of India through National Investigating Agency ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant : Mr. Avishek Prasad, Advocate For the Res-NIA : Mr. Amit Kumar Das, Advocate
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rd Order No. 09: Dated 3 April, 2024 Prayer
1. The instant criminal appeal has been preferred on behalf of the appellant under Section 21(4) of the National Investigation Agency Act, 2008 for setting aside the order dated 24.04.2023 passed in Misc. Cr. Application No. 692 of 2023 by learned Additional Judicial Commissioner-XVI-cum- Special Judge, NIA, Ranchi whereby and whereunder the prayer for bail, in connection with NIA Case 01/2017, R.C. Case No. 11/2017/NIA/DLI corresponding to Bundu P.S. Case No. 65 of 2008 registered under Sections 302/120B/34 of the Indian Penal Code; under Section 27 of the Arms Act; under Sections 17 and 18 of the Criminal Law Amendment Act; under section 18, 20 and 38 of the UA(P) Act, has been rejected.
-1- Facts:
2. The prosecution case, as per the fardbeyan of one Nand Kishor Yadav, who was private driver of late Ramesh Singh Munda, MLA for the last two years, is that on 09.07.2008, late Ramesh Singh Munda along with Shiv Nath Minz, (bodyguard of MLA), Shesh Nath Singh and a Home guard Md. Khurshid boarded a Travera vehicle and reached Bundu School at 12.50 hrs. When the deceased was about to conclude his speech at around 13.45 hours, the informant saw three naxalites were standing about 10 feet away on the right side of car, carrying weapons in their hand.
3. One of the naxalites crossed him from the front side of the car and the other two from the backside of the car and they moved towards the bodyguards of Ramesh Singh Munda, who were standing in the corridor adjacent to the hall where the function was going on. The boy who had moved from the front fired in the air twice. Subsequently, they started firing towards bodyguard Shiv Nath Minz and Home Guard Md. Khurshid while the informant who was sitting in the Tavera vehicle, tried to hide himself in the car. The miscreants while firing was raising slogans "MAOWADI JINDABAD" and fled away. After the extremist fled away, the informant got out of the vehicle and found that bodyguard Shiv Nath Minz and a boy were shot and were lying on the -2- floor motionless in the verandah of the school campus and home guard Sepoy Khurshid Alam was lying on the floor alive but, seriously injured due to gun shots and Ramesh Singh Munda was lying inside the hall in a corner with several bullet injuries. Immediately, Bundu police came and all the four were taken to RIMS, Ranchi where they were declared dead.
4. This terrorist incident led to institution of Bundu P.S. No. 65 of 2008 dated 09.07.2008 for offences under Section 302, 379, 120B, 34 of the Indian Penal Code, Section 27 of the Arms Act and Section 17 of the Criminal Law Amendment Act against unknown.
5. On 25.10.2008, Bundu Police submitted charge sheet no. 108/2008 against Dileshwar Mahto (A-1), Bindu Devi (A
2), Mahadeo Oraon (A3) and Mahendra Oraon (A -4) under Section 302, 379, 120B and 34 of the Indian Penal Code, Section 27 of the Arms Act and Section 17 of the Criminal Law Amendment Act and investigation was continued against Kundan Pahan (A-7) and unknown others.
6. Later on, 1st supplementary charge-sheet no. 141/09 dated 30.11.2009 was submitted against the present appellant, namely, Balram Sahu @ Bolo @ David (A-5) under Section 302, 379, 120B and 34 of the Indian Penal Code, -3- Section 27 of the Arms Act and Section 17 of the Criminal Law Amendment Act.
7. The Additional Director General, Criminal Investigation Department, Ranchi vide memo dated 29.05.2017 added Sections 18, 20, 38 of the Unlawful Activities (Prevention) Act, 1967.
8. The Central Government, in view of the gravity of the offence, in exercise of power vested under Section 6(5) read with section 8 of the NIA Act 2008 suo motu directed the NIA to take up the investigation of this case.
9. Accordingly, as per direction of the Ministry of Home Affairs, NIA took over the investigation after re-registered the case being FIR No. RC-11/2017/NIA/DLI dated 30.06.2017 arising out of Bundu P.S.Case No. 65 of 2008.
10. The appellant has been remanded in the instant case on 05.09.2009 and charge-sheeted vide charge-sheet no. 141/09 dated 30.11.2009 and he is in custody since 14.03.2009.
11. The appellant filed an application for grant of regular bail before the learned Additional Judicial Commissioner- XVI-cum-Special Judge, NIA, Ranchi by taking the ground that the he is a simple villager and nowhere has any connection with Maoist. Further ground has been taken that on 09.07.2008 when the deceased, namely, Ramesh Singh Munda was killed, Bundu PS Case No. 65/2008 was -4- registered but the petitioner was not named in the F.I.R. Subsequently, there was series of investigation by various agencies, but in no place the name of petitioner was mentioned.
12. Further, after about nine years when chargesheet was submitted in the original case, surprisingly it was handed over to the N.I.A. by the Govt. of India, Ministry of Home Affairs and a fresh FIR was registered on 30.06.2017. Learned counsel for the petitioner (appellant herein) has further taken the ground that the appellant is in custody since 14.03.2009, as such it is a fit case where the appellant may be directed to be released on bail.
13. Learned Special Judge called upon the NIA, who vehemently opposed the prayer for bail, and after considering the submissions advanced by the parties the learned Special Judge rejected the bail application vide order dated 24.04.2023 against which the present appeal has been filed. Submission of the learned counsel for the appellant:
14. Mr. Avishek Prasad, learned counsel for the appellant has assailed the impugned order, by which the prayer for bail of the appellant has been rejected, on the following grounds:
I. That the appellant has remained in custody for about 15 years but without taking into consideration the long -5- incarceration, the prayer for bail has been rejected by the learned court.
II. Learned counsel for the appellant has taken aid of the judgment rendered by Hon'ble Apex Court in the case of Union of India vs. K.A. Najeeb [(2021) 3 SCC 713] wherein on the ground of period of custody and taking into consideration the implication of Article 21 of the Constitution of India the Hon'ble Apex Court has not interfered with the order granting bail by the High Court.
III. Learned counsel for the appellant has submitted herein also the appellant has already remained in custody for more than 15 years hence it is a fit case where applying the principle laid down in the case of Union of India vs. K.A. Najeeb (supra) the appellant may be directed to be released on bail.
IV. Second ground has been taken that identically placed accused person, namely, Gopal Krishna Patar @ Raja Peter has been directed to be released on bail by the co- ordinate Bench of this Court vide order dated 13.12.2023 passed in Cr. Appeal (DB) No. 1895 of 2023, and the appellant remained in custody more than that of said Gopal Krishna Patar @ Raja Peter, hence even -6- applying the principle of parity, it is a fit case where appellant may be directed to be released on bail.
8. The learned counsel for the appellant based upon the aforesaid grounds has submitted that the learned court has not taken note of the aforesaid facts, therefore, the present appeal is fit to be allowed.
Submission of the learned counsel for the respondent:
9. While on the other hand, Mr. Amit Kumar Das, learned counsel appearing for the National Investigating Agency (NIA) has defended the impugned order by taking following grounds:
(i) There is specific attributability against the appellant, as would be evident from various paragraphs of the charge-sheet i.e., paragraph nos. 17.3, 17.25 etc.
(ii) It has been contended that as per the direction passed by Hon'ble Apex Court the trial is in progress and as per supplementary affidavit filed by the respondent-NIA in pursuance to order dated 28.02.2024 passed by this Court, only two witnesses are left to be examined. Therefore, submission has been made that in such a situation where only two witnesses are to be examined it would not be just and proper to direct the appellant to release on bail -7- otherwise, he will take all endeavors to hamper the trial, which is at fag end.
(iii) It has further been contended that the appellant along with other co-accused persons are very tactfully delaying the disposal of the instant case by adopting one or the other tactics by filing time petitions and petition for recall of witnesses in the learned Special Court, NIA. However, submission has been made at Bar that next date fixed in the trial Court is 15 th April, 2024 for examination of rest two witnesses and as such it would be just and proper to direct the learned trial Court to conclude the trial itself rather than allowing the instant appeal.
(iv) It has been submitted that even the case of Union of India vs. K.A. Najeeb (supra) is not applicable in the facts and circumstances of the case wherein the fact was altogether different i.e., in the aforesaid case some of the co-accused persons since have been convicted for a period of 8 years in consequence of the splitting of the trial and when the accused, K.A. Najeeb was subjected to criminal trial then he remained in custody for about five years and at that time 276 witnesses were left to be examined. The Hon'ble Apex Court called for a report from the NIA as -8- to whether there is any chance for reducing the number of witnesses or not to which the NIA has shown no inclination to screen its endless list of witnesses and in that view of the matter, the Hon'ble Apex Court opined that there is no likelihood of trial being completed within a reasonable period of time. In those circumstances, the order granting bail by the High Court was not interfered with. But in the case at hand only two witnesses are left to be examined and the next date fixed before the trial Court is 15th April, 2024.
(v) So far as second ground i.e., the ground of parity is concerned, submission has been made that allegation against the appellant is that he is one of the executors who committed the crime resulting into death of sitting MLA, Ramesh Singh Munda along with two guards and one student whereas allegation against the co-accused, namely, Gopal Krishna Patar @ Raja Peter who has been directed to be released on bail by the Co-ordinate Bench of this Court vide order dated 13.12.2023 in Cr. Appeal (DB) No. 1895 of 2023, is totally different i.e., he is the originator of the conspiracy and gave cash and weapon and ammunitions to the executors in act of assassination -9- of persons including MLA. Therefore, the appellant cannot claim parity with the co-accused who has been granted bail by the co-ordinate Bench of this Court.
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, therefore, the present appeal is also fit to be dismissed. Analysis:
11. We have heard learned counsel for the parties, perused the documents available on record and the finding recorded by learned trial Court as recorded in the impugned order as also counter affidavit filed on behalf of NIA.
12. We have heard the learned counsel for the parties and considered the finding recorded by learned Court in the impugned orders as also the charge-sheet.
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) which is required to be considered herein.
14. The main objective of the Act, 1967 is to make powers available for dealing with activities directed against the
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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 U.A.(P) Act is also to 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.
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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) stands a person who is or continues to be a member of such association shall be liable to be punished.
18. At this juncture, it will be purposeful to discuss the core of Section 43D(5) of the Act, 1967 which mandates that the person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true apart from the other offences the appellant is accused of committing offences as stipulated under chapter IV and VI of UA(P) Act, 1967.
19. The reason of making reference of the provision of Section 43D(5) of the Act that in course of investigation, the investigating agency has discovered the material against the appellant attracting the offence under various Sections of UA(P) Act. Since, this Court is considering the issue of bail based upon now also under the various sections of UA(P) Act and hence, the parameter which has been put under the
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provision of Section 43D (5) of the Act is also required to be considered.
20. The requirement as stipulated under Section 43D(5) of the UA(P) Act, 1967 in the matter of grant of regular bail fell for consideration before the Hon'ble Apex Court in the case of National Investigation Agency Vrs. Zahoor Ahmad Shah Watali, reported in [(2019) 5 SCC 1] wherein at paragraph 23 it has been held by interpreting the expression "prima facie true" as stipulated under Section 43D(5) of the Act, 1967 which would mean that the materials/evidence collated by the investigation agency in reference to the accusation against the accused concerned in the First Information Report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It has further been observed that it must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. The 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 :-
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"23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is "not guilty" of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is "not guilty" of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable 11 grounds for believing that the accusation against such person is "prima facie" true. By its very nature, the expression "prima facie true" would mean that the 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
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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 v. Zahoor Ahmad Shah Watali (Supra) that it is the bounden duty of the Court to apply its mind to examine the entire materials on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not.
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. 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 Vrs. State of Maharashtra, reported in (2005) 5 SCC 294. For ready reference the following paragraph of the aforesaid Judgment is being quoted herein under:
"46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act,
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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."
23. Further, it is the duty of the Court to record its opinion that the accusation made against the accused concerned is prima facie true or otherwise and such opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the contents of the charge-sheet and other material gathered by the investigating agency during investigation.
24. This Court, on the basis of the abovementioned 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 appellant is prima facie true as compared to the accusation of accused not guilty by taking into consideration the material collected in course of investigation.
25. Counter affidavit filed by the respondent is kept on record wherein the 3rd Supplementary charge-sheet dated 31.03.2018 has been appended as Annexure-A.
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26. It is evident from the counter affidavit based upon the material collected in course of investigation as in the chargesheet that the appellant is charge-sheeted accused (A-5) of the instant case and he is the named accused in the FIR which is mentioned at serial no.24 of the accused list of FIR named accused.
27. After investigation NIA submitted chargesheet against the appellant and accordingly, court of Special Judge, NIA took cognizance in charge-sheeted sections.
28. This Court in order to deal with the nature of allegation deem it fit and proper to refer the allegation against the appellant as has been leveled against the appellant as referred in supplementary charge-sheet, which is quoted as under:
17.3 "Facts revealed about complicity of Balram Sahu (A-
5):
A-5 was remanded in instant case on 05.09.2009. He was charge sheeted vide 1st Supplementary Charge sheet no. 141/09 dated 30.11.2009. A-5 was in touch with A-17 since substantial period prior to the date of incident and he facilitated convening of meeting between A-17 and A-7, A- 24, A-25, A-26 and A-27, the top operatives of CPI (Maoist) in the last week of June, 2008. A-5 was the part of the seven Maoists who stormed the SoC on 09.07.2008 and he assassinated Sh. Ramesh Singh Munda. Two Police guards namely Shiv Nath Minz and Khurshid Alam and one student Ramdhan Patar were also killed in the incident. It was also revealed during investigation that after the execution of crime, A-5 took the weapons lying with the deceased Shiv Nath Minz and Khurshid Alam and on
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returning to Baruhatu, handed over the said snatched weapons Winchester rifle and Carbine to A-7. A-5, with due instruction of A-7 collected the balance amount of the "supari" to the tune of Rs. 2 Crore from A-22 and A-23 (sides of A-17) on 11.07.2008." 17.25 Role of additional offences established against Balram Sahu Bolo David@ Raju All Khan (A-5): It is established that A-5 es in touch with accused A-7 right from the time of initial conspiracy till the date of incident. A-5 facilitated A-17 for meeting top operatives of CPI (Maoist) in the last week of June, 2008. He was part of the seven Maoists who stormed the SoC an 09.07.2008 and he assassinated Sh. Ramesh Singh Munda by firing with AK-47. Two guards and one student were also killed in the crime. He collected the balance amount Rs. 2 Crore from A-22 and A-23 after execution of crime on 11.07.2008. Hence, as per averments made in the earlier paragraphs, it is established that A-5, by becoming member of terrorist gang, conspired with co-accused members of the terrorist gang and illegally possessed lethal weapon in contravention of Arms Act for committing terrorist act by striking terror in people of India by causing death of persons and thereby criminally conspired with co-accused persons for causing murder of Ramesh Singh Munda and three others. He along with co-accused by using prohibited firearms, caused murder of Ramesh Singh Munda and three others. He also took away the weapons, which were in the possession of the deceased armed guards and thereby committed offences Under sections 120B read with 302 of IPC, sections 396, 302 of IPC, sections 16, 18, 20 & 23 of UA(P) Act, section 25 (1B) and 27 of Arms Act.
29. Thus, it appears from the aforementioned paragraph of the charge-sheet that the appellant who is arraigned as an accused (A-5) was the part of the seven Maoists who stormed the SoC on 09.07.2008 and he assassinated Shree Ramesh Singh Munda. Two Police guards namely Shiv Nath Minz and
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Khurshid Alam and one student Ramdhan Patar were also killed in the incident. It was also revealed during investigation that after the execution of crime, A-5 took the weapons lying with the deceased Shiv Nath Minz and Khurshid Alam and on returning to Baruhatu, handed over the said snatched weapons Winchester rifle and Carbine to A-7. A-5, with due instruction of A-7 collected the balance amount of the "supari" to the tune of Rs. 2 Crore from A-22 and A-23 (sides of A-17) on 11.07.2008.
30. Thus, from perusal of the various annexures and paragraphs of the charge sheet, prima facie appears that the appellant has associated himself with accused A-7 right from the time of initial conspiracy till the date of incident. The appellant facilitated A-17 for meeting with top operatives of CPI (Maoist) in the last week of June, 2008 and he was part of the seven Maoists who stormed the SoC on 09.07.2008 and he assassinated Shree Ramesh Singh Munda by firing with AK-
47. Two guards and one student were also killed in the crime. Appellant collected the balance amount Rs. 2 Crore from A-22 and A-23 after execution of crime on 11.07.2008.
31. Hence, as per averments made in the earlier paragraphs, it prima-facie appears that A-5 [appellant herein], by becoming member of terrorist gang, conspired with co- accused members of the terrorist gang and illegally possessed
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lethal weapon in contravention of Arms Act for committing terrorist act by striking terror in people of India by causing death of persons and thereby criminally conspired with co- accused persons for causing murder of Ramesh Singh Munda and three others. He along with co-accused by using prohibited firearms, caused murder of Ramesh Singh Munda and three others. He also took away the weapons, which were in the possession of the deceased armed guards and thereby committed offences under Sections 120B read with 302 of IPC, sections 396, 302 of IPC, sections 16, 18, 20 & 23 of UA(P) Act, section 25 (1B) and 27 of Arms Act.
32. Now coming to the argument advanced on behalf of parties, wherein two fold argument has been advanced: (I).long period of custody and in support thereof has 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) (II).the principle of parity is to be applied from the co-accused who has been granted bail.
33. So far as first ground is concerned, i.e., the period of custody, heavy reliance has been placed on the judgment rendered in the case of Union of India vs. K.A. Najeeb (supra).
34. This Court in order to appreciate the aforesaid ground deems it fit and proper to refer the relevant paragraph of
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judgment rendered in Union of India vs. K.A. Najeeb (supra), relevant paragraph of which is quoted as under:
"17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.
18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected."
35. It is evident from the factual aspect that 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,
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the investigating agency has submitted that there is no question of reducing the number of charge-sheeted witnesses and in view thereof and considering the period of custody, i.e., more than 5 and half years and also taking into consideration the spirit of Article 21 of the Constitution of India the Hon'ble Apex Court has not interfered with the order by which the bail was granted to respondent-accused.
36. Further, it is settled proposition of law that the applicability of the judgment depends upon the facts and circumstances of each and every case and there cannot be any universal application of the judgment rather each judgment is to be decided on the basis of fact of each case. Reference in this regard may be taken from the judgment as rendered by the Hon'ble Supreme Court in Dr. Subramanian Swamy vs. State of Tamil Nadu & Ors reported in (2014) 5 SCC 75 for ready reference the relevant paragraph is being quoted herein under "47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."
37. In the counter affidavit dated 21.03.2024 filed by the respondent-NIA wherein it has been submitted that the appellant along with co-accused are very tactfully delaying the
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disposal of the instant case by adopting one or the other tactics by filing time petitions and petition for recall of witnesses, who are professors of Forensic Science Laboratory, Delhi.
38. Therefore, the question which requires consideration by this Court that when the trial itself is at the fag end whether it would be just and proper to release the appellant on bail in a case of such grave nature where the sitting MLA was killed. Therefore, we are of the view that judgment rendered in the case of K.A. Najeeb (supra) in the instant case is not fit to be applied.
39. This Court, by taking into consideration the nature of allegation and also taking into consideration the fact that the trial is at fag end since only two witnesses are to be examined, it will not be proper for this Court to show interference with the impugned order by applying the factual aspect, as is in the case of K.A. Najeeb (supra).
40. So far as the second ground i.e., the ground of parity is concerned, as raised by the learned counsel for the appellant, the law is well settled that the principle of parity is to be applied if the case of the one or the other is exactly to be similar then only the principle of parity in the matter of passing order is to be passed but if there is difference in
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between of facts then the principle of parity is not to be applied.
41. It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by only simple saying that another accused has been granted bail is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. Reference in this regard may be taken from the judgment as rendered by the Hon'ble Apex Court in Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230, wherein, it has been held as under:
"25. We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 :] , this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed : (SCC p. 515, para 17) "17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history-sheeter, it was imperative on the part of the High Court to scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] clearly
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exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside.
26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12-2020 [Pravinbhai Hirabhai Koli v. State of Gujarat, 2020 SCC OnLine Guj 2986] , [Khetabhai Parbatbhai Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2988] , the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22-10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High Court recorded) that he was "assigned similar role of armed with stick (sic)". Again, bail was granted to Vanraj Koli (A-16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-
15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity.
Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law."
42. The Hon'ble Apex Court in Tarun Kumar vs. Assistant Director Directorate of Enforcement, (2023)
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SCC OnLine SC 1486 wherein at paragraph-18, it has been held by the Hon'ble Apex Court that parity is not the law and while applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration.
43. It has further been held in the paragraph 19 of the said judgment that the principle of parity is to be applied in the matter of bail but equally it has been laid down therein that there cannot be any negative equality, meaning thereby, that if a co-accused person has been granted bail without consideration of the factual aspect or on the ground said to be not proper, then, merely because the co-accused person has been directed to be released on bail, the same will not attract the principle of parity on the principle that Article 14 envisages positive equality and not negative equality. For ready reference, relevant paragraph, i.e., paragraph- 19, of the aforesaid judgment reads as under:
"19. It is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitution. However, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order. Article 14 is not meant to perpetuate the illegality or
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irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision."
44. Now this court is adverting into facts of instant case to decide the issue of parity in the backdrop of aforesaid settled legal ratio and further taken in to consideration the aforesaid settled position of law, thinks fit to refer herein distinguishable facts in the case of present petitioner to that the case of Gopal Krishna Patar @ Raja Peter who has been directed to be released on bail by the Co-ordinate Bench of this Court vide order dated 13.12.2023 in Cr. Appeal (DB) No. 1895 of 2023.
45. Coming back to the factual aspect of the present case, and the case upon which parity has been sought for it needs to refer herein that so far as the ground of parity is concerned, submission has been made that allegation against the appellant is that he is one of the executors who committed the crime resulting into death of sitting MLA, Ramesh Singh Munda along with two guards and one student whereas allegation against the co-accused, namely, Gopal Krishna Patar @ Raja Peter who has been directed to be released on bail by the Co-ordinate Bench of this Court vide order dated 13.12.2023 in Cr. Appeal (DB) No. 1895 of 2023, is totally different i.e., he is the
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originator of the conspiracy and gave cash and weapon and ammunitions to the person who assassinated the deceased, i.e., the sitting MLA, Ramesh Singh Munda.
46. Therefore, the appellant cannot claim parity with the co- accused who has been granted bail by the co-ordinate Bench of this Court. Role played by co-accused, Gopal Krishna Patar @ Raja Peter is of conspirator, as would be evident from paragraph 17.35 of the charge-sheet whereas on the other hand, the involvement of the appellant as per the material surfaced during investigation is that he is the person who was the part of the seven Maoists who stormed the place of occurence on 09.07.2008 and he assassinated Ramesh Singh Munda and further two Police guards and one student were also killed in the incident, as would be evident from paragraphs of the 3rd supplementary charge-sheet as mentioned above.
47. This Court, therefore, applying the ratio laid down in the case of Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana (supra) Tarun Kumar (supra) and by making comparative assessment of the involvement of co-accused person with the appellant in of the view that nature of allegation leveled against the appellant is totally different to that of said co-accused, Gopal Krishna Patar @ Raja Peter, who has been granted bail by co-ordinate
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Bench of this Court. Hence the benefit of parity will not be applicable to the present appellant.
48. This Court, after considering the above facts and circumstance and after going through the chargesheet the appellant wherefrom it is evident that there is direct, specific and serious allegation against the appellant as he has played very prominent role as an executor in assassination of MLA and other persons.
49. This Court considering the aforesaid distinguishing fact in the present case by taking into consideration the active and direct involvement of the appellant as executor in assassination of said sitting MLA, namely, Ramesh Singh Munda and other persons 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.
50. 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 Apex Court in the case of Zahoor Ahmad Shah Watali (supra) is of the view that it cannot be said that the allegation levelled against the appellants is prima facie untrue.
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51. In view of the foregoing discussions, we find no illegality in the impugned order dated 24.04.2023 passed in Misc. Cr. Application No.692 of 2023 by Spl. Judge, NIA, Ranchi rejecting the application of the appellant, as such order impugned requires no interference by this Court.
52. In the result, we find no merit in instant appeal, hence, the same is accordingly, dismissed.
53. Pending Interlocutory Application(s), if any, also stands dismissed.
54. 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.) (Arun Kumar Rai, J.) Alankar/ N.A.F.R.
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