Chattisgarh High Court
Rohit Nag vs State Of Chhattisgarh on 20 October, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.977 of 2022
Dayashanker Mishra, S/o Shri Ramgopal Mishra, aged about 40 years,
R/o Village Dihuki, Tahsil Churhat, District Sidhi (M.P.)
(In Jail)
---- Appellant
Versus
State of Chhattisgarh, Through Station House Officer, Police Station
Siksod, District North Bastar Kanker (C.G.)
---- Respondent
Criminal Appeal No.1004 of 2022
1. Suresh Sharnagat, S/o Shri Bhagchand Sharnagat, aged about 31
years, R/o Ward No.9, Pandegada, Samariya Bazar, Police Station
Lalbarra, District Balalghat (M.P.)
2. Sushil Sharma, S/o Ranjeet Sharma, aged about 50 years, R/o
Shiv Shakti Vihar, Garh Road, Merath L.L. R.M. Road, Main Road
College Merath, District Merath (U.P.)
(In Jail)
---- Appellants
Versus
State of Chhattisgarh, Through Station House Officer, Police
Station Siksod, District North Bastar Kanker (C.G.)
---- Respondent
AND
Criminal Appeal No.1007 of 2022
Rohit Nag, S/o Sakharam Nag, aged about 53 years, R/o Village
Koilibeda, Police Station Koilibeda, District North Bastar Kanker (C.G.)
(In Jail)
---- Appellant
Versus
State of Chhattisgarh, Through Station House Officer, Police Station
Siksod, District North Bastar Kanker (C.G.)
---- Respondent
2
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For Appellants: Mr. T.K. Tiwari and Ms. Ritika Choubey, Advocates.
For Respondent / State: -
Mr. Ashish Tiwari, Govt. Advocate.
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Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Deepak Kumar Tiwari, JJ.
Judgment on Board
(20/10/2022)
Sanjay K. Agrawal, J.
1. Since all the three criminal appeals have arisen though from
different orders, but from one and same crime number i.e. Crime
No.9/2020 registered at Police Station Siksod, District North Bastar
Kanker, therefore, they have been clubbed together, heard together
and are being disposed of by this common judgment.
2. These criminal appeals under Section 21(4) of the National
Investigation Agency Act, 2008 are directed against order dated 7-
4-2022 (in respect of Dayashanker Mishra) and orders dated 30-5-
2022 (in respect of Rohit Nag, Suresh Sharnagat & Sushil Sharma)
passed by the Special Judge (NIA Act), Kanker, District North
Bastar Kanker in Bail Applications No.92/2022, 135/2022 &
131/2022, respectively, by which the appellants' applications under
Section 439 of the CrPC seeking bail for offences under Sections
10, 13, 17, 38(1)(2), 22-A, 22-C & 40 of the Unlawful Activities
Prevention Act, 1967 (for short, 'the UAPA'); Section 8(2)(3)(5) of
the Chhattisgarh Vishesh Jan Surksha Adhiniyam, 2005 (for short,
'the Act of 2005'); and Sections 120B, 201 and 149/34 of the IPC
have been rejected finding no merit.
3. Case of the prosecution, in brief, is that on 24-3-2020, on the basis
of secret information, the respondent searched a vehicle bearing
registration No.CG-07/AH-6555 driven by Tapas Kumar Palit. In
that search, 95 pairs of shoes, green black printed cloths for
uniform, 2 bundles of electric wires each of 100 meter, LED lens,
walki talki and other articles were found in his possession (Tapas
Kumar Palit). Seizure was made accordingly. It is the further case
of the prosecution that these articles were to be supplied by Tapas
Kumar Palit to naxalites in order to support their illegal and
disruptive activities. It is also the case of the prosecution that said
Tapas Kumar Palit was working with Rudransh Earth Movers Road
Construction Company, a partnership firm of Ajay Jain and Komal
Verma. It is also the case of the prosecution that Tapas Kumar
Palit provided information that articles were being provided on the
instructions/ consent of Ajay Jain and Komal Verma, who were
given consent/permission to do so by Varun Jain, Director of M/s
Landmark Royal Engineering (India) Private Limited. It is also the
case of the prosecution that the accused were providing funds as
well to naxalites though no cash was recovered on the said date,
but the police arrested all of them on 23.4.2020. It is also the case
of the prosecution that Ajay Jain and Komal Verma were working as
sub-contractors for road construction of PMGSY Road work
originally given to M/s Landmark Royal Engineering Private Limited.
FIR under Crime No.9/2020 was registered and they were charge-
sheeted for the aforesaid offences on 8-9-2020 and thereafter
charges have been framed on 5-8-2021 and out of 100 listed
witnesses, only 13 witnesses have been examined and seizure
witnesses namely Mantesh Dhruw and Rajesh Sahu have also
been examined. Pursuant to the memorandum statement of
appellant Dayashanker Mishra (Cr.A.No.977/2022), who was
Accountant in Rudransh Earth Movers Road Construction
Company, seven pairs of plastic shoes and 15 meters of military
cloth have been seized from his possession and similarly, from the
possession of appellant Suresh Sharnagat (appellant No.1 in Cr.A.
No.1004/2022), who was working as Operator in the said Company,
one mobile, CD & motorcycle have been seized. From the
possession of appellant Sushil Sharma (appellant No.2 in Cr.A.
No.1004/2022), who was working as Clerk in the said Company,
mobile, rent agreement & register have been seized and from the
possession of appellant Rohit Nag (Cr.A.No.1007/2022), who was
Labourer, mobile has been seized. Thus, the present appellants
along with other co-accused persons have committed the offences
as mentioned in the second paragraph of this judgment.
4. The appellants herein have filed applications under Section 439 of
the CrPC for grant of bail before the Special Court under NIA Act,
which have been rejected by the impugned orders finding no merit
against which these criminal appeals have been filed.
5. Mr. T.K. Tiwari, learned counsel appearing for the appellants in all
the three appeals, submits that the case of these appellants stands
on the same footing as that of Ajay Jain to whom this Court has
granted bail in Cr.A.No.328/2022 on 4-5-2022 and further, the case
of the appellants herein also stands on the same footing as that of
Shailendra Bhadouriya & Komal Verma to whom bail has been
granted on 13-5-2022 in Cr.A.No.706/2022. He would further
submit that Nishant Jain was the original contractor for construction
of road who gave sub-contract to Rudransh Earth Movers Road
Construction Company of which Ajay Jain & Komal Verma were
partners and Shailendra Bhadouriya was Superivsor and they have
already been enlarged on bail as mentioned herein-above. He
would also submit that Dayashanker Mishra - appellant in
Cr.A.No.977/2022 was only Accountant in that Construction
Company, whereas Suresh Sharnagat & Sushil Sharma -
appellants in Cr.A.No.1004/2022 were Operator & Clerk,
respectively, in the said Company while Rohit Nag - appellant in
Cr.A.No.1007/2022 was a labourer in the same Company, except
some seizure, nothing specific has been seized from them. The
appellants are in jail since 23-4-2020 and therefore the appeals
deserve to be allowed by setting aside the impugned orders and the
appellants be enlarged on bail.
6. Mr. Ashish Tiwari, learned State counsel, would submit that
pursuant to the memorandum statement of appellant Dayashanker
Mishra, who was Accountant in Rudransh Earth Movers Road
Construction Company, seven pairs of plastic shoes and 15 meters
of military cloth have been seized from his possession and similarly,
from the possession of appellant Suresh Sharnagat, who was
working as Operator in the said Company, one mobile, CD &
motorcycle have been seized. He would further submit that from
the possession of appellant Sushil Sharma, who was working as
Clerk in the said Company, mobile, rent agreement & register have
been seized and from the possession of Rohit Nag, who was
Labourer, mobile has been seized. Seizure of above articles from
the appellants has duly been recorded in the charge-sheet.
Therefore, the appeals of these appellants deserve to be
dismissed.
7. We have heard learned counsel appearing for the parties,
considered their rival submissions made herein-above and also
went through the records with utmost circumspection.
8. The applications filed by the appellants herein under Section 439 of
the CrPC have been rejected by the learned Special Judge (NIA
Act). Section 43D(5) of the UAPA provides that an accused of an
offence punishable under the provisions of the UAPA shall not be
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 CrPC is of the
opinion that there are reasonable grounds for believing that the
accusation against such person is prima facie true. Sub-section (6)
of Section 43D of the UAPA further provides that the restrictions on
granting of bail specified in sub-section (5) is in addition to the
restrictions under the CrPC or any other law for the time being in
force on granting of bail. However, the bar provided in Section
43D(5) of the UAPA does not operate against the Constitutional
Courts power to ensure fundamental rights guaranteed under Part
III of the Constitution of India.
9. Their Lordships of the Supreme Court in the matter of Thwaha
Fasal v. Union of India1 have held that the restrictions imposed by
sub-section (5) of Section 43D of the UAPA per se do not prevent a
1 2021 SCC OnLine SC 1000
Constitutional Court from granting bail on the ground of violation of
Part III of the Constitution. It was observed 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 sub-section (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."
10. Apart from this, proviso to Section 43D(5) of the UAPA would be
applicable of a person accused of an offence punishable under
Chapters V and VI of the UAPA. The appellants have been
charged for offences under Sections 10,13, 17, 38(1)(a) and 40 of
the UAPA Act.
11. Now, the appellants have also been charged under Sections 38(1)
(a) and 40 of the UAPA as the case against the appellants is that
they paid levy/ extortion money to naxalites for undertaking road
construction work in Kanker district. It is the case of the appellants
that they have been implicated merely on the basis of confessional
statement recorded during the investigation. No incriminating
material like money, cloths, wireless sets etc. were recovered from
the possession of the present appellants and even if the charge-
sheet is taken as it is in its face value along with other material
available on record that the appellants were paying extortion money
for letting them road construction work smoothly in the said area,
no offences under Sections 38 and 40 of the UAPA would be made
out. Reliance has been placed in the matter of Sudesh Kedia v.
Union of India2.
12. In Sudesh Kedia (supra) it has been observed by their Lordships of
the Supreme Court that payment of extortion money to a
banned/terror organization does not amount to terror funding. It
was observed as under:-
"13. While considering the grant of bail under Section
43-D(5), it is the bounden duty of the Court to apply its
mind to examine the entire material on record for the
purpose of satisfying itself, whether a prima facie case is
made out against the accused or not. We have gone
through the material on record and are satisfied that the
Appellant is entitled for bail and that the Special Court
and High Court erred in not granting bail to the Appellant
for the following reasons:
13.1 A close scrutiny of the material placed before the
Court would clearly shows that the main accusation
against the appellant is that he paid levy/ extortion
amount to the terrorist organization. Payment of extortion
money does not amount to terror funding. It is clear from
the supplementary charge-sheet and the other material
2 (2021) 4 SCC 704
on record that other accused who are members of the
terrorist organisation have been systematically collecting
extortion amounts from businessmen in Amrapali and
Magadh areas. The appellant is carrying on transport
business in the area of operation of the organisation. It is
alleged in the second supplementary charge-sheet that
the appellant paid money to the members of the TPC for
smooth running of his business. Prima facie, it cannot be
said that the appellant conspired with the other members
of the TPC and raised funds to promote the organisation.
13.2 Another factor taken into account by the Special
Court and the High Court relates to the allegation of the
Appellant meeting the members of the terror
organization. It has been held by the High Court that the
appellant has been in constant touch with the other
accused. The appellant has revealed in his statement
recorded under Section 164 CrPC that he was
summoned to meet A-14 and the other members of the
organisation in connection with the payments made by
him. Prima facie, we are not satisfied that a case of
conspiracy has been made out at this stage only on the
ground that the appellant met the members of the
organisation.
13.3 An amount of Rs. 9,95,000/- (Rupees nine lakh
and ninety-five thousand only) was seized from the
house of the appellant which was accounted for by the
appellant who stated that the amount was withdrawn
from the bank to pay salaries to his employees and other
expenses. We do not agree with the prosecution that the
amount is terror fund. At this stage, it cannot be said that
the amount seized from the appellant is proceeds from
terrorist activity. There is no allegation that the appellant
was receiving any money. On the other hand, the
appellant is accused of providing money to the members
of TPC."
13. Similarly, the Supreme Court in Thwaha Fasal (supra) has held that
mere association with a terrorist organisation as a member or
otherwise will not be sufficient to attract the offence under Section
38 of the UAPA unless the association is with intention to further its
activities. It was observed as under:-
"13. On plain reading of Section 38, the offence
punishable therein will be attracted if the accused
associates himself or professes to associate himself with
a terrorist organisation included in First Schedule with
intention to further its activities. In such a case, he
commits an offence relating to membership of a terrorist
organisation covered by Section 38. The person
committing an offence under Section 38 may be a
member of a terrorist organisation or he may not be a
member. If the accused is a member of terrorist
organisation which indulges in terrorist act covered by
Section 15, stringent offence under Section 20 may be
attracted. If the accused is associated with a terrorist
organisation, the offence punishable under Section 38
relating to membership of a terrorist organisation is
attracted only if he associates with terrorist organisation
or professes to be associated with a terrorist organisation
with intention to further its activities. The association
must be with intention to further the activities of a terrorist
organisation. The activity has to be in connection with
terrorist act as defined in Section 15. Clause (b) of
proviso to sub-section (1) of Section 38 provides that if a
person charged with the offence under sub-section (1) of
Section 38 proves that he has not taken part in the
activities of the organisation during the period in which
the name of the organisation is included in the First
Schedule, the offence relating to the membership of a
terrorist organisation under sub-section (1) of Section 38
will not be attracted. The aforesaid clause (b) can be a
defence of the accused. However, while considering the
prayer for grant of bail, we are not concerned with the
defence of the accused.
15. Thus, the offence under sub-section (1) of Section
38 of associating or professing to be associated with the
terrorist organisation and the offence relating to
supporting a terrorist organisation under Section 39 will
not be attracted unless the acts specified in both the
Sections are done with intention to further the activities of
a terrorist organisation. To that extent, the requirement
of mens rea is involved. Thus, mere association with a
terrorist organisation as a member or otherwise will not
be sufficient to attract the offence under Section 38
unless the association is with intention to further its
activities. Even if an accused allegedly supports a
terrorist organisation by committing acts referred in
clauses (a) to (c) of sub- section (1) of Section 39, he
cannot be held guilty of the offence punishable under
Section 39 if it is not established that the acts of support
are done with intention to further the activities of a
terrorist organisation. Thus, intention to further activities
of a terrorist organisation is an essential ingredient of the
offences punishable under Sections 38 and 39 of the
1967 Act.
38. Now the question is whether on the basis of the
materials forming part of the charge sheet, there are
reasonable grounds for believing that accusation of
commission of offences under Sections 38 and 39
against the accused nos.1 and 2 is true. As held earlier,
mere association with a terrorist organisation is not
sufficient to attract Section 38 and mere support given to
a terrorist organisation is not sufficient to attract Section
39. The association and the support have to be with
intention of furthering the activities of a terrorist
organisation. In a given case, such intention can be
inferred from the overt acts or acts of active participation
of the accused in the activities of a terrorist organization
which are borne out from the materials forming a part of
charge sheet. At formative young age, the accused
nos.1 and 2 might have been fascinated by what is
propagated by CPI (Maoist). Therefore, they may be in
possession of various documents/books concerning CPI
(Maoist) in soft or hard form. Apart from the allegation
that certain photographs showing that the accused
participated in a protest/gathering organised by an
organisation allegedly linked with CPI (Maoist), prima
facie there is no material in the charge sheet to project
active participation of the accused nos.1 and 2 in the
activities of CPI (Maoist) from which even an inference
can be drawn that there was an intention on their part of
furthering the activities or terrorist acts of the terrorist
organisation. An allegation is made that they were found
in the company of the accused no.3 on 30th November,
2019. That itself may not be sufficient to infer the
presence of intention. But that is not sufficient at this
stage to draw an inference of presence of intention on
their part which is an ingredient of Sections 38 and 39 of
the 1967 Act. Apart from the fact that overt acts on their
part for showing the presence of the required intention or
state of mind are not borne out from the charge sheet,
prima facie, their constant association or support of the
organization for a long period of time is not borne out
from the charge sheet.
39. The act of raising funds for the terrorist
organisation has been alleged in charge sheet against
both the accused. This is a separate offence under
Section 40 of the 1967 Act of raising funds for a terrorist
organisation which again contains intention to further the
activity of terrorist organisation as its necessary
ingredient. The offence punishable under Section 40 has
not been alleged in this case."
14. It is pertinent to mention here that two co-accused persons namely
Hitesh Agrawal and Varun Jain have been granted bail (interim) by
their Lordships of the Supreme Court in SLP (Crl.) Nos.8147-
8148/2021 by order dated 3-1-2022 by directing as under:-
"After going through the pleadings, hearing the learned
counsel for the parties and considering that the
petitioners have been in custody for over 17 months, we
deem it appropriate to pass orders directing that the
petitioners be granted interim bail on such terms and
conditions as may be imposed by the Trial Court as also
the conditions (i) the petitioners shall not leave the
jurisdiction of the Trial Court without prior leave of the
Trial Court; (ii) the petitioners shall surrender their
passports, if any; (iii) the Petitioners shall report to the
concerned police station at lease twice a week, that is,
every Monday and every Friday between 9.30 a.m. to
12.00 Noon, or at any other time as directed by the
Officer-in-Charge of the Police Station; and (iv) the
Petitioners shall appear in the Trial Court on the dates on
which they are required to appear."
15. Considering the fact that two co-accused persons namely Hitesh
Agrawal & Varun Jain, who were Directors of M/s Landmark Royal
Engineering (India) Private Limited being principal employers of
Ajay Jain, have already been granted bail on 3-1-2022 and the sub-
contractor of the said M/s Landmark Royal Engineering (Private)
Limited is Rudransh Earth Movers Road Construction Company
whose partners Ajay Jain & Komal Verma have been granted bail
on 4-5-2022 & 13-5-2022 in Cr.A.Nos.328/2022 & 706/2022,
respectively, and furthermore, Shailendra Bhadouriya, who was
Supervisor in the said Construction Company, was granted bail on
13-5-2022 in Cr.A.No.706/2022 and that the present appellants are
only Accountant, Operator, Clerk & Labourer in the said
Construction Company and further considering their role and that
they are in custody for more than two years and their case is similar
to that of Ajay Jain, Shailendra Bhadouriya & Komal Verma, who
have been granted bail by this Court, we consider it a fit case for
setting aside the orders passed by the learned Special Judge (NIA).
16. Accordingly, the impugned orders are set-aside and the criminal
appeals filed by the appellants under Section 21(4) of the NIA Act
are allowed. It is directed that the appellants shall be released on
bail on their furnishing a personal bond in the sum of ₹ 1,00,000/-
each with one surety in the like sum to the satisfaction of the
concerned Special Judge, for their appearance as and when
directed.
17. It is made clear that any observation made in this judgment is only
for the purpose of deciding the appeals under Section 21(1) of the
NIA Act and this Court has not made any observation on the merits
of the matter and the Special Judge (NIA Act) will decide the matter
strictly as per material available on record without being influenced
by any observation made in this order.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Soma
