Chattisgarh High Court
Abhay Nayak vs The State Of Chhattisgarh on 4 November, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 960 of 2021
Judgment Reserved on : 20.10.2022
Judgment delivered on : 04.11.2022
Abhay Nayak, S/o. Devdas Nayak, Aged About 35 Years,
Currently Incarcerated as Jagdalpur Central Jail, Civil
Lines, Jagdalpur, Chhattisgarh 494001
Appellant
Versus
The State of Chhattisgarh through Station House Officer
of Police Station Mardum, Distrct Bastar, Chhattisgarh.
Respondent
Criminal Appeal No. 983 of 2021
Abhay Devdas Nayak, S/o. Devdas Nayak, Aged About 35
Years, Currently Incarcerated as Jagdalpur Central
Jail, Civil Lines, Jagdalpur, Chhattisgarh 494001
Appellant
Versus
The State of Chhattisgarh through Station House Officer
of Police Station Darbha, Distrct Bastar, Chhattisgarh.
Respondent
And
Criminal Appeal No. 989 of 2021
Abhay Devdas Nayak, S/o. Devdas Nayak, Aged About 35
Years, Currently Incarcerated as Jagdalpur Central
Jail, Civil Lines, Jagdalpur, Chhattisgarh 494001
Appellant
Versus
The State of Chhattisgarh through Station House Officer
of Police Station Kondenar, Distrct Bastar,
Chhattisgarh.
Respondent
2
For Appellant : Mr. Shailendra Dubey and Ms.
Shivali Dubey, Advocates
For State : Mr. Animesh Tiwari, Dy. A.G.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Deepak Kumar Tiwari
C.A.V. Judgment
Sanjay K. Agrawal, J.
1. These criminal appeals under Section 21(4) of the
National Investigation Agency Act, 2008 have been
preferred by the common appellant Abhay Devdas
Nayak against the order dated 10.06.2021 passed by
the Special Judge (NIA Act) Jagdalpur, District
Bastar rejecting his application under Section 439
of Cr.P.C. finding no merit.
2. Since common question of law and fact are involved,
these appeals have been heard together, clubbed
together and are being disposed of by this common
judgment. These three Criminal Appeals have been
arising out of three Special Sessions Trials and
three crime numbers of three Police Stations namely
Mardum, Darbha & Kondenar, the details of which are
as under :
CRA Spl.ST. Cr.No. Police Offence U/s.
No. No. Station
960/2021 109/2018 7/2017 Mardam, 120B of the Indian
Dist.Bastar Penal Code;
13(1)(b), 18, 38 &
39(2) of the
Unlawful Activities
(Prevention) Act,
1967; and
8(1)(3)(5) of the
Chhattisgarh Special
Public Security Act,
983/2021 105/2018 7/2017 Darbha, 120B of the Indian
Dist.Bastar Penal Code;
4 & 5 of the
Explosive Substances
Act, 1908;
13(1)(b), 18, 38 &
39 (2) of the
Unlawful Activities
(Prevention) Act,
1967; and
8(1)(3)(5) of the
Chhattisgarh Special
Public Security Act,
989/2021 110/2018 7/2017 Kodenar, 120B of the Indian
Distt.Bastar Penal Code;
4 & 5 of the
Explosive Substances
Act, 1908;
13(1)(b), 18, 38 &
39(2) of the
Unlawful Activities
(Prevention) Act,
1967; and
8(1)(3)(5) of the
Chhattisgarh Special
Public Security Act,
3. In the first round, the appellant has preferred the
first bail applications under Section 439 of
Cr.P.C. before the Special Judge, which were
rejected by the learned Special Judge against which
the appellant preferred three criminal appeals
bearing Criminal Appeal Nos. 1212/2019, 1146/2019 &
1216/2019. All these criminal appeals under Section
21(4) of the National Investigation Agency Act were
dismissed by this Court by a common order dated
20.12.2019 against which the appellant preferred a
Special Leave to Appeal (Crl.) No(s). 6390
6392/2020 and their Lordships of the Supreme Court
by order dated 12.01.2021 passed the following
order :
"This special leave petition has been
filed against the order dated 20.12.2019
passed by the High Court, by which the
High Court rejected the bail application
of the petitioner who is accused in FIR
No.7/17 under Section 120B of the I.P.C.,
Section 4 and 5 of the Explosive Substance
Act and Sections 38 and 39(2) of the
Unlawful Activities (Prevention) Act.
Learned counsel for the petitioner
submits that though charge sheet has been
filed against the petitioner yet charges
have not been framed.
In the facts of the present case,
ends of justice be served in granting
liberty to the petitioner to renew his
bail application before the Trial Court
after charges are framed.
With the above, the special leave
petitions stand disposed of. Pending
application stands disposed of."
4. It is pertinent to mention that charges were framed
against the appellant by order dated 31.12.2019 for
the offences under Sections 120B of the Indian
Penal Code; 13(1)(b), 18, 38 & 39(2) of the
Unlawful Activities (Prevention) Act, 1967 (for
short 'UAPA') and 8(1)(3)(5) of the Chhattisgarh
Special Public Security Act, 2005 (for short
'CSPSA') and the appellant has preferred
application in all the three trials for grant of
bail under Section 439 of Cr.P.C. which came to be
rejected by the three impugned orders separately
passed, against which these three appeals have been
preferred by the appellant questioning the orders
passed by the Special Judge rejecting his bail
application preferred under Section 439 of Cr.P.C.
5. Case of the prosecution, in brief, is that on
28.01.2017 the Incharge of the Police Station
Darbha, District Baster (C.G.) received secret
information that the naxalites/Maoist armed with
deadly weapons gathered in the middle of village
Bhadrimahu and Urukpal, then the Incharge of Police
Station Darbha alongwith other staff went to spot,
where, the police has found pamphlets, documents
(literature) and steel made IED tifin bomb. The
police has seized the aforesaid articles and
registered Dehati Nalishi and thereafter wheels of
investigation started running. On perusal of the
seized documents, it was noticed that the names of
Maoist Commander Abhay and Vikalp are mentioned in
the pamphlet. It is further found that, mobile no.
8763873894 and 94487654345 and email ID
[email protected] are also mentioned in the
literature documents. Upon futher investigation, it
was found that the aforesaid email ID is created
by the appellant Abhay Nayak and he is operating a
blog namely Naxal Revolution, which contained the
materials of banned organization CPI Maoist. In
relation to the aforesaid mobile number and email
ID, the Police has gathered information from the
Cyber Cell, which discloses that mobile no.
9448765435 belongs to the present appellant Abhay
Nayak, R/o Bangaluru (Karnataka) and pursuant
thereto he was arrested from Bangaluru (Karnataka)
and he was brought to Jagdalpur and interrogation
was made and thereby it is brought to the notice of
the police that the appellant Abhay Nayak involved
in the naxal activity and he is a part of urban
network of naxal organization and he is working to
look after the publicity of naxal activity and to
connect the people with naxal movement through his
Internet Blog and other sites, i.e. Twitter,
Google, Plus, Yahoo etc. It also came to the
knowledge of the police that the appellant herein
is receiving emails from naxal spoke persons
namely Vikalp and Gudsa Usendi and other naxali
leaders containing anti national publicity
documents and attachments and the appellant had
also issued pamphlet, documents and statement in
his name by putting digital signature.
6. Similarly, on 28.01.2017 an information was
received by the concerned police that on the road
between village BastanarDankapara towards village
Kandoli, a banner has been placed alongwith
pamphlets containing anti national contents. On
receipt of the information the team of Kodenar
Police led by the Station House Officer reached to
the place and found a banner and anti national
contents and few naxal pamphlets written in English
propagating naxal movement. On search of nearby
places, the police team found an explosive like
material and few wires, which were further dug out
with proper security and found 8 kg Tiffin Bomb
with 20 meters long wire alongwith pamphlets. The
pamphlets were having signature of 'Vikalp' as
spokesperson, Dandkaranya Special Zonal Committee
CPI (Maoist). This organization has already been
banned by the Government of Chhattisgarh and
accordingly the offences were registered at Police
Station Kodenar, District Bastar.
7. Similarly, during further investigation, it was
brought to the notice that Police Station Darbha
has also registered Crime No.7/2017 and seized
pamphlets and literatures containing propagation of
naxal movement. The Investigating Officer found e
mail ID and mobile number written over the seized
articles, which were further investigated on which
one person appellant Abhay Nayak, R/o. Bangalore
(Karnataka) was suspected as a person who has
committed the offences.
8. It is further case of the prosecution that when the
police team reached to Bangalore (Karnataka), the
appellant was not available in the country, he was
travelling abroad with unknown location, which
compelled the police authority to issue Look Out
Circular and in the meanwhile, the Immigration
Bureau, New Delhi, informed the Superintendent of
Police, Baster that the appellant has been taken
into custody. He was enquired by Baster Police at
Delhi and thereafter, upon his consent, Laptop,
Mobile, Hard Disk, Pen Drive, etc. were recovered
and brought to Baster for further investigation. In
his confessional statement, the appellant admitted
that for propagating naxal activities, he acts as a
Blogger and Spokesman via its Blog and Social Media
sites i.e. Twitter, Google+, Yahoo, etc. to
increase urban naxal cadre and influence urban
youths. The appellant was arrested on 162018 and
his residence was searched. The appellant was
thereafter searched for two other offences.
9. It was also case of the prosecution that the
appellant is a member of over ground cadre of CPI
(M) and he was found using the email ID to
propagate naxal movement and ideology. The
appellant opened the Blog Abhay Naxal Revolution in
the year 2011. He has deleted certain incriminating
articles though which were later on recovered
during data analysis. The appellant runs the blog,
receives emails and disseminates to others and
hence, the appellant is actively working as member
of over ground cadre of CPI(M). He is also involved
in online recruitment of naxal cadre.
10. Learned Special Judge has rejected the application
of the appellant filed under Section 439 of Cr.P.C.
finding prima facie material for involvement of the
appellant for the offences charged against him, as
he is involved in naxal movements and he has blog
of Naxal Revolution which is filled with the
contents relating to the organization CPI Maoist
and considering the other materials on record he is
not entitled for grant of regular bail, against
which, these appeals have been preferred.
11. Mr. Shailendra Dubey assisted by Ms. Shivali Dubey,
learned counsel for the appellant, would submit
that in Criminal Appeal No.960/2021 which arises
out of Special Case No.109/2018, 15 witnesses have
been examined and most of the witnesses have not
supported the case of the prosecution and they have
completely turned hostile and the appellant is in
jail for more than 4 ½ years and for the offences
punishable under Sections 38 and 39 of the UAPA
Act, maximum sentence is up to 10 years. He further
submitted that the appellant is resident of
Bangalore City and all the posting of emails and
other electronic media blog platform is done
through the City of Bangalore, as such, there is no
jurisdiction of Chhattisgarh police to enquire into
the matter and arrest the appellant. Therefore, the
entire investigation done by the Bastar police is
without jurisdiction. He also submits that the
appellant's alleged confession before the police is
barred under Section 25 of the Evidence Act and
cannot be relied upon, as the material adduced in
the charge sheet does not substantiate or lend the
slightest weight to any of the allegations made
against the appellant. He also submits that there
is no material on record to show that seditious
blog posts material, inciting support for the
Maoist movement and propagating the same uploaded
by the appellant on his blog
[email protected] and the entire
allegations made against the appellant are purely
conjectures based entirely on suppositions and
presumptions. He submits that the prosecution has
adduced no evidence to support the charges under
Section 18 UAPA and Section 9 of CSPSA. Prosecuting
the appellant for offences under Section 120 B of
I.P.C., Section 13(1)(B), 38 and 39(2) of UAPA and
Section 8(1) and 8(3) of CSPSA on the basis of
material included in the charge sheet submitted is
barred under Article 20(2) of the Constitution of
India. The incriminating handwritten notes seized
from the appellant's house have not been placed in
the charge sheet, therefore, no adverse inference
against the appellant can be drawn and on that
basis the appellant cannot be implicated in any way
and, as such, no offence as alleged under Section
39(2) and under Section 8(1) and 8(3) of CSPSA and
offence under Section 120B OF IPC are not made out
against the appellant. Therefore, the appellant
deserves to be released on bail by setting aside
the impugned orders rejecting his applications
under Section 439 of Cr.P.C.
12. Per contra, learned counsel for the respondent
would submit that the prosecution had brought out
sufficient material and documents on record, which
prima facie prove the involvement of the appellant
in the antinational activities and working with
the completely banned naxal organization. He
further submits that the appellant is the crucial
source of urban network of naxal organization. He
was playing very crucial and important role for
publicity of naxal activities through the sources
of internet and such an act of the appellant is
dangerous to the public at large. It is submitted
that since the investigation revealed that the
appellant is also a member of the Coordination
Committee of Maoist Party and Organization of South
Asia and from the appellant currencies of as many
as 15 different countries were seized including the
currencies of Nepal, Uganda, Indonesia etc. and
upon electronic examination of Laptop signatures
affixed on pamphlets which was seized on
28.02.2018, a digital signature was also seized
from his Laptop. It is also submitted that the
appellant has received certain amount in his Bank
Account through electronic mode of Google since
2010 till 2018, which was Rs.17,49,881/ from
international sources. As such, learned Special
Judge is absolutely justified in rejecting the bail
application of the appellant and these appeals have
no merit and deserves to be dismissed.
13. We have heard learned counsel appearing for the
parties and considered the rival submissions made
hereinabove and went through the material placed
before us on behalf of the State.
14. While considering the prayer for release of an accused
on bail, who is charged with offence under the Unlawful
Activities (Prevention) Act, 1967, it is important to
notice the provisions contained under Section 43D (5) &
(6) of the said Act, which are quoted below :
"43D Modified application of certain provisions
of the Code
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
(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 person 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 under section 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.
(6) The restrictions on granting of bail
specified in subsection (5) is in addition to
the restrictions under the Code or any other
law for the time being in force on granting of
bail.
15. Section 43D of UAPA came to be considered by their
Lordships of Supreme Court in the matter of
National Investigation Agency v Zahoor Ahmad Shah
Watali11 in which their Lordships have considered the
scope and application of the proviso to section 43D and
held thus in paras 25 to 27 :
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 1 (2019) 5 SCC 1 CRA No.1213 of 2019
& Other connected matters recovered from
the residence of Ghulam Mohammad Bhatt
till 1682017 (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 of Cr.P.C., 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 chargesheet
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.
26. Be it noted that the special
provision, Section 43D of the 1967 Act,
applies right from the stage of
registration of FIR for the offences under
Chapters IV and VI of the 1967 Act until
the conclusion of the trial thereof. To
wit, soon after the arrest of the accused
on the basis of the FIR registered against
1(2019) 5 SCC 1
him, but before filing of the chargesheet
by the Investigating Agency; after filing
of the first chargesheet and before the
filing of the supplementary or final
chargesheet consequent to further
investigation under Section 173(8)
Cr.P.C., until framing of the charges or
after framing of the charges by the Court
and recording of evidence of key
witnesses, etc. However, once charges are
framed, it would be safe to assume that a
very strong suspicion was founded upon the
materials before the Court, which prompted
the Court to form a presumptive opinion as
to the existence of the factual
ingredients constituting the offence
alleged against the accused, to justify
the framing of charge. In that situation,
the accused may have to undertake an
arduous task to satisfy the court that
despite the CRA No.1213 of 2019 & Other
connected matters framing of charge, the
materials presented along with the charge
sheet (report under Section 173 of
Cr.P.C.), do not make out reasonable
grounds for believing that the accusation
against him is prima facie true. Similar
opinion is required to be formed by the
Court whilst considering the prayer for
bail, made after filing of the first
report made under Section 173 of the Code, as
in the present case.
27. For that, the totality of the material
gathered by the Investigating Agency and
presented along with the report and
including the case diary, is required to
be reckoned and not by analysing
individual pieces of evidence or
circumstance. In any case, the question of
discarding the document at this stage, on
the ground of being inadmissible in
evidence, is not permissible. For, the
issue of admissibility of the
document/evidence would be a matter for
trial. The Court must look at the contents
of the document and take such document
into account as it is.
16. Thereafter, in the matter of Thwaha Fasal v. Union
of India2 it has been held that the restrictions
2 2021 SCC OnLine SC 100
imposed by subsection (5) of Section 43D per se do not
prevent a Constitutional Court from granting bail on
the ground of violation of Part III of the Constitution
and held as under :
"26.While we deal with the issue of grant
of bail to the accused nos.1 and 2, we
will have also to keep in mind the law
laid down by this Court in the case of
K.A. Najeeb (supra) holding that the
restrictions imposed by sub section (5) of
Section 43D per se do not prevent a
Constitutional Court from granting bail on
the ground of violation of Part III of the
Constitution.
42.As held in the case of K.A. Najeeb
(supra), the stringent restrictions
imposed by subsection(5) of Section 43D, do
not negate the power of Constitutional
Court to grant bail keeping in mind
violation of Part III of the Constitution.
It is not disputed that the accused no.1
is taking treatment for a psychological
disorder. The accused no.1 is a student of
law. Moreover, 92 witnesses have been
cited by the prosecution. Even assuming
that some of the witnesses may be dropped
at the time of trial, there is no
possibility of the trial being concluded
in a reasonable time as even charges have
not been framed. There is no minimum
punishment prescribed for the offences
under Sections 38 and 39 of the 1967 Act
and the punishment can extend to 10 years
or only fine or with both. Hence,
depending upon the evidence on record and
after consideration of relevant factors,
the accused can be let off even on fine.
As regards the offence under Section 13
alleged against accused no.2, the maximum
punishment is of imprisonment of 5 years
or with fine or with both. The accused
no.2 has been in custody for more than 570
days."
17. Admittedly in the instant case, in the trial
against the appellant, the learned Special Judge
has framed the charges by order dated 31.12.2019
and the appellant is facing three criminal trials
and as per record available in Spl.S.T.No.109/2018
fifteen witnesses have been examined, in
Spl.S.T.No.110/2018 twelve witnesses have been
examined and in Spl.S.T.No.105/2018 ten witnesses
have been examined. However, the proviso to Section
43D(5) of UAPA would show that such accused person
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 under section 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.
18. Considering the material available on record, it is
apparent that the appellant is a member of over
ground cadre of CPI(M) and also found using the e
mail ID to propagate naxal movement and ideology
and he has opened the Blog Abhay Naxal Revolution
and is actively involved in online recruitment of
naxal cadre. He was also found to be using proxy
server to hide his identity and he is also found to
have officially created 'CPI Maoist Naxalite' blog
and also wrote his blogs as 'abhaynaxalrevolution'
to hide his overtly and expressly Maoist
connection. It also appears from record that he is
also a member of Coordination Committee of Maoist
Party and Organization of South Asia and also
traveling records of 15 countries and having an
amount of Rs.17,49,881/ from international sources
and from other material available on record, which
completely furnished reasonable ground for
believing that the allegation against the appellant
is prima facie true. We are of the opinion that the
appellant has failed to make out a case for grant
of bail under Section 439 of Cr.P.C. and the
learned Special Judge is absolutely justified in
rejecting his application in all the three cases.
Accordingly, we do not find force in these criminal
appeals and they are accordingly dismissed.
19. It is made clear that observation made herein is
only for the purpose of deciding appeals preferred
against the orders rejecting applications under
Section 439 of Cr.P.C. It should not be taken as
opinion on merits of the matters and learned
Special Judge will decide the trial on its own
merit strictly in accordance with law without being
influenced by any of the observations made
hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Ashok
