Harpal Singh Chouhan vs The Director General
2023 Latest Caselaw 109 Chatt

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                                                                            NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR

                            CRA No. 1294 of 2021


Harpal Singh Chouhan, S/o. Late Shiv Nayak Chouhan, Aged about
44 years, R/o. Ward No.3, Thakurpara, Nakulnar, Police Station
Kuankonda, District Dantewada (CG)
                                                       ---- Appellant(in jail)
                                      Versus

The Director General, National Investigation Agency, C.G.O.
Complex, Lodhi Road, New Delhi, (CG)
                                                                ---- Respondent
---------------------------------------------------------------------------------
For the Appellant              Ms. Fouzia Mirza, Sr. Advocate along with
                               Mr.    Navin      Shukla,      Counsel      for    the
                               appellant.
For the Respondent             Mr. B.Gopa Kumar with Mr. Himanshu
                               Pandey and Mr. Ismail Sheikh, Sr. Public
                               Prosecutor for the respondent/NIA.
---------------------------------------------------------------------------------------
                   Hon'ble Smt. Justice Rajani Dubey
                   Hon'ble Shri Narendra Kumar Vyas,

               Order on Board By Narendra Kumar Vyas, J.

06.01.2023

1. This Criminal appeal is directed against the order dated

20.09.2021 passed by learned Special Judge (NIA Act), Bastar,

at Jagdalpur (CG) in Special Case NIA No. 43 of 2020, by which

the appellant's application for grant of bail under Section 439

CrPC has been rejected by the Special Judge for ofences under

Sections 120-B, 12, 121A, 14, 148, 149, 307 & 396 IPC and

section 13, 16,17,18A, 19,20,23, 38,39, 40 of Unlawful

Activities (Prevention) Act, 1967 and Section 25(1A), 27(3)

Arms Act and Section 3, 5 Explosive Act.

2. The prosecution case is that in an incident of bomb explosion

on 09.04.2019, four police personnel and Bhima Mandavi, a

member of Legislative Assembly died. The NIA carried out

investigation and fled charge sheet before the Special Court,

involving as many as 36 accused including the present appellant

also. The allegation against the present appellant is that the

appellant was also involved in arranging steel container of

diferent sizes/weight i.e. 2Kg, 5KG, & 10 KG detonator and

battery etc. it is alleged that with the use of steel container

detonator and battery etc. procured by the present appellant

underground explosive exploded resulting in death of MLA

Bhima Mandavi, four police personnel and many injured.

3. Learned Sr. counsel for the appellant would argue that though

the incident is said to be grievous and the alleged ofences are

heinous in nature, the appellant has been involved only on

certain suspicion without there being clinching evidence so as

to constitute a prima-facie material against him. She would

argue that the involvement of the present applicant is based on

his name disclosed in the memorandum statement of co-

accused Barse Sukka @ Deva @ Barsa @ Bada deva @ Sai

Nath also. Learned Sr. Counsel for the appellant would further

argue that the appellant is falsely involved in arraigning steel

container of diferent sizes/weight i.e. 2KG, 5KG & 10KG,

detonator and Battery and food items etc. She would argue that

mentioning of name in the memorandum statement, by itself,

is not an admissible piece of evidence and it cannot said to be

a material, unless it leads to discovery of fact relevant.

According to her, at the most, all that can be said that the

appellant who is otherwise a shop owner and supplier of

materials may have sold steel container and other food items

to the certain persons but that by itself, is not sufcient to

involve him in the alleged commission of ofence, unless there

is some other material, independent memorandum of co-

accused, which point out that the appellant was involved in the

conspiracy also. She would submit that that mere sale of

certain articles which are openly sold in the market would not

involve a person in the conspiracy leading to commission of

alleged ofence. Learned court below has rejected the

application mechanically without formation of opinion as

contemplated under section 43(D) of the Unlawful Activities

(Prevention)Act. She would further submit that the prosecution

has to examine as many as 117 witnesses out of which only 56

witnesses have been examined and some of the witnesses

have been turned hostile and examination of all the witnesses

will take some time for conclusion of the trial. She would

further submit that the appellant is in jail since 03.08.2019

thus remained in jail for more than 3 years, as such his right of

liberty is being adversely efected, therefore, present appellant

may be released on bail.

4. On the other hand, learned counsel appearing for the

NIA/respondent would submit that the alleged incident of

murder of a sitting MLA and Police personnel was outcome of a

well hatched conspiracy of all the accused who were assigned

diferent role to play and the present appellant was also part of

the same conspiracy, arraigning steel container of diferent

sizes/weight i.e. 2KG, 5KG & 10KG, detonator and Battery and

food items etc. He agreed to purchase steel container and

other food items. It has also been alleged that accused No. 8

Bada Deva told present appellant that he will send his people

to bring the item. Just before the incident, accused No. 8 had

sent two naxalite members and collected the steel containers.

The protected witness D has told that the good kept in the bag

has sent by present appellant, after some time, he saw the bag

wherein steel container and in the cartoon some materials

were there. He would submit that it is not only the

memorandum of Barse Sukka @ Deva @ Barsa @ Bada deva @

Sai Nath, that the appellant has been named as one of the

conspirators involved in the alleged commission of ofence, the

statement of protected witness D, prima facie, shows that the

appellant had arranged steel container of diferent sizes,

detonator and battery and food items etc. and then it gave to

other protected witness for being supplied to Barse Sukka and

the witness statement is that the steel container and detonator

were supplied in the house of Badkaram Tati. He would further

submit that in the present case, after fling of the charge sheet,

the learned trial Court upon fnding that a prima facie case is

made out for trial, has framed charges against the present

appellant therefore, there is overwhelming material in the

charge sheet and the case diary to form an opinion in terms of

provision contained in section 43 D (5) of the Unlawful

Activities (Prevention)Act.

5. We have heard learned counsel for the parties, perused the

material and the contents of charge sheet and the case diary

as disclosed before us by learned counsel for the

respondent/NIA.

In a case involving allegation of commission of ofence

under the Unlawful Activities (Prevention) Act, there exists

special provision regulating exercise of discretionary jurisdiction

to grant or not to grant bail, as contained in section 43 D (5)(6)

and (7) which is reproduced as below.

" 43 D. Modifed application of certain provisons of the Code.

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(5) Notwithstanding anything contained in the Code, no person accused of an ofence 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 specifed 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 ofence 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."

6. The aforesaid provision and the scheme of the act as also the

relevant consideration which are required to be kept in the

mind by the Court while considering application for grant of

bail in such category of cases came up for consideration of

Hon'ble Supreme Court in the case of National Investigation

Agency vs. Zahoor Ahmad Shah Watali (2019) 5 SCC 1.

While restating the settled legal position about matter to be

considered for deciding an application for bail, as mentioned in

para 23 of the said judgment, the special provisions contained

in section 43 D we are also taken note of and was observed:-

"23. By virtue of the proviso to subsection (5), it is the duty of the Court to be satisfed 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 ofences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substance 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 ofence. There is degree of diference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is "not guilty" of

such ofence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is "prima facie" true. By its very nature, the expression "prima facie true" would mean that the materials/evidence collated by the Investigating Agency in reference to the accusation against the concerned accused in the frst 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 ofence. It must be good and sufcient on its face to establish a given fact or the chain of facts constituting the stated ofence, 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 accused "not guilty" of such ofence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to ofences under the 1967 Act. Nevertheless, we may take guidance from the exposition in the case of Ranjitsing Brahmajeetsing Sharma (supra), wherein a threeJudge Bench of this Court was called upon to consider the scope of power of the Court to grant bail. In paragraphs 36 to 38, the Court observed thus:(SCC pp.316-17).

"36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such ofencee Is it necessary for the court to record such a fndinge Would there be any machinery available to the court to ascertain that once the accused is enlarged on bail, he would not commit any ofence whatsoevere

37. Such fndings are required to be recorded only for the purpose of arriving at an objective fnding on the basis of materials on

record only for grant of bail and for no other purpose.

38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard to the materials brought on record, is satisfed that in all probability he may not be ultimately convicted, an order granting bail may be passed.The satisfaction of the court as regards his likelihood of not committing an ofence while on bail must be construed to mean an ofence under the Act and not any ofence whatsoever be it a minor or major ofence..... What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea...."

And again in paragraphs 44 to 48, the Court observed:(SCC pp 318-20).

"44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive fnding that the applicant for bail has not committed an ofence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a fnding that the applicant has not committed such an ofence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a fnding as to the possibility of his committing a crime after grant of bail. However, such an ofence in futuro must be an ofence under the Act and not any other ofence. Since it is difcult to predict the future conduct of an accused, the court must necessarily

consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the ofence.

45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as towhy the applicant has been granted or denied the privilege of bail.

46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a fnding 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, the court may have to probe into the matter deeper so as to enable it to arrive at a fnding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The fndings 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.

47. In Kalyan Chandra Sarkar v. Rajesh Ranjan 15, this Court observed: (SCC pp. 53738, para

18).

'18. We agree that a conclusive fnding in regard to the points urged by both the sides is not expected of the court considering a bail application. Still one should not forget, as observed by this Court in the case Puran v. Rambilas 16(SCC p. 344, para 8)

" 8).......'Giving reasons is diferent from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of

the merits of the case has not to be undertaken. ... That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated."

We respectfully agree with the above dictum of this Court. We also feel that such expression of prima facie reasons for granting bail is a requirement of law in cases where such orders on bail application are appealable, more so because of the fact that the appellate court has every right to know the basis for granting the bail. Therefore, we are not in agreement with the argument addressed by the learned counsel for the accused that the High Court was not expected even to indicate a prima facie fnding on all points urged before it while granting bail, more so in the background of the facts of this case where on facts it is established that a large number of witnesses who were examined after the respondent was enlarged on bail had turned hostile and there are complaints made to the court as to the threats administered by the respondent or his supporters to witnesses in the case. In such circumstances, the Court was dutybound to apply its mind to the allegations put forth by the investigating agency and ought to have given at least a prima facie fnding in regard to these allegations because they go to the very root of the right of the accused to seek bail. The non-

consideration of these vital facts as to the allegations of threat or inducement made to the witnesses by the respondent during the period he was on bail has vitiated the conclusions arrived at by the High Court while granting bail to the respondent. The other ground apart from the ground of incarceration (2004) 7 SCC 528 (2001) 6 SCC 338 which appealed to the High Court to grant bail was the fact that a large number of witnesses are yet to be examined and there is no likelihood of the trial coming to an end in the near future. As stated hereinabove, this ground on the facts of this case is also not sufcient either individually or coupled with the period of incarceration to release the

respondent on bail because of the serious allegations of tampering with the witnesses made against the respondent.'

48. In Jayendra Saraswathi Swamigal v. State of T.N. 17 this Court observed : (SCC pp 21-22, para16)

' 16. .... The considerations which normally weigh with the court in granting bail in nonbailable ofences have been explained by this Court in State v. Jagjit Singh and Gurcharan Singh v. State (Delhi Admn.)17 and basically they are -- the nature and seriousness of the ofence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.'

"24. A priori, the exercise to be undertaken by the Court at this stage - of giving reasons for grant or non- grant of bail - is markedly diferent from discussing 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 fnding on the basis of broad (2005) 2 SCC 13 (1962) 3 SCR 622 (1978) 1 SCC 118 probabilities regarding the involvement of the accused in the commission of the stated ofence or otherwise.

7. Further, the impact of framing of charges in such cases was

also considered as one of the relevant consideration while

considering bail application as below.

26. Be it noted that the special provision, Section 43 D of the 1967 Act, applies right from the stage of registration of FIR for ofences 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 him, but before fling

of the charge sheet by the Investigating Agency; after fling of the frst charge sheet and before the fling of the supplementary or fnal charge sheet 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 ofence 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 framing of charge, the material 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 fling of the frst report made under Section 173 of the Code, as in the present case.

8. Their Lordships in the Supreme Court also emphasised upon the

need to have view of the totality of the material gathered by the

Investigating agency and observed that even issue of

admissibility of evidence could not be raised at such stage as it

would be matter of consideration during trial and the Court shall

be required to look into the contention of the documents and take

those document into account, as it is.

9. The decision of the Supreme Court was considered by the

coordinate Bench of this Court in the case of Abhay Nayak and

others vs. State of Chhattisgarh passed in Criminal Appeal No.

1213 of 2019 on 20.12.2019.

10. If we apply aforesaid principle laid by the Supreme Court to the

present case, we are of the view, that there exists material to

form an opinion that there are reasonable ground for believing

that the acquisition against the present appellant is prima-facie

true.

Having said so, bail application is required to be rejected as

a matter of rule because in the cases of this category, the normal

rule of bail not jail has no application.

11. The trial Court has rejected the application holding that the

available material in the case diary makes out the prima-facie

case regarding involvement of the present appellant, therefore,

the appeal has to be and is accordingly rejected.

12. Before parting with the order, we must make it clear that

consideration as above are only limited to entitlement to grant of

bail and the trial Court shall not be infuenced by any of the

observation made by this Court.

13. Accordingly, this appeal is reject.

                  Sd/-                                            Sd/-

          (Rajani Dubey)                              (Narendra Kumar Vyas)

              Judge                                            Judge




Santosh