Gauhati High Court
Crl.A./155/2020 on 28 February, 2023
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GAHC010001242017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./155/2020
The National Investigation Agency
Through the Superintendent of Police, NIA,
Branch Office: Guwahati, Assam,
Ministry of Home Affairs, Govt. of India
..................Appellant
-Versus-
1. Shri. Tapitu @ Tapi (A-13),
Son of Yichutu, a resident of
Village-Phor, P.S. Meluri,
District- Phek, Nagaland
2. Shri Meghazu,
Son of Yichutu, a resident of
Phor Village, District- Phek, Nagaland.
............... Respondents
Advocate for the Appellant : Mr. DK Das, Senior counsel.
Ms. GD Choudhury.
Advocate for the respondents : None
Date of hearing & Judgment : 28.02.2023
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BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MRS. JUSTICE MALASRI NANDI
JUDGEMENT AND ORDER(ORAL)
(Michael Zothankhuma, J)
Heard Mr. DK Das, learned Senior counsel assisted by Ms. GD
Choudhury, learned counsel for the appellant.
2. No one appears for the respondent. It is noticed that vide order
dated 10.11.2021, this Court had held that since the respondent was
already served notice, no further notice was required to be sent to him.
3. The present appeal has been filed against the impugned order dated
01.05.2017 passed by the learned Special Judge, NIA Nagaland, Dimapur
in Bail Application No. 29/2017, granting bail to the respondent/accused,
namely, Shri Tapitu @ Tapi (A-13), son of Yichutu, resident of village Phor,
P.S. Melluri, District-Phek, Nagaland.
4. The learned Senior Counsel for the appellant submits that the learned
Trial Court could not have granted bail to the respondent/accused, in view
of Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 (herein
after referred to as the "UA(P) Act, 1967"), inasmuch as, an accused
person can only be released on bail, if the Court is of the opinion that
there are reasonable grounds for believing that the information against
such person is prima facie untrue. He submits that the learned Trial Court
has however granted bail, only after considering the statement of the
respondent/accused made under Section 161 Cr.PC and has decided the
bail application of the respondent/accused in a cryptic manner. He
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accordingly submits that the bail granted to the respondent/accused
should be cancelled. He also submits that the learned Trial court, while
granting bail to the respondent/accused had stated that the allegation of
conspiracy under Sections 120B IPC and 18 UA(P) Act had not been prima
facie made out, which would prejudice the case of the appellant during
the trial proceedings. He also submits that the observation made by the
learned Trial court in the impugned order dated 01.05.2017 "whether the
prosecution can secure the conviction of the accused for being a member
of a terrorist organization under Section 20 of the UA(P) Act after
conclusion of the trial," could also prejudice to the appellant during the
trial proceedings. He submits that the said observations should be struck
off from the impugned order dated 01.05.2017.
5. The challenge made in this appeal against the impugned order dated
01.05.2017 is that bail could not have been granted to the
respondent/accused, who belongs to the NSCN(K), a banned organization
under the Sl. No. 39 of the 1st Schedule to the UA(P) Act, 1967.
6. The case against the respondent/accused has its genesis from the FIR
dated 26.03.2015, which states that on 26.03.2015, at around 7:00 to
8:00 am, a telephonic information had been received from the SDPO
Kohima, stating that a firing incident had taken place at I.G. stadium,
Kohima. Thereafter Police officials had rushed to the spot for verification,
where it was ascertained that 6 to 7 personnels of Bravo company of the
19th Assam Rifles, who were waiting for a bus near the gate at I.G.
stadium, were shot at by 3-4 persons, who had alighted from a silver
coloured vehicle (Alto or Maruti, number unknown), with AK-47 rifles and
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pistols and fled the scene. During enquiry, empty AK-47 shell, 9 mm shells
and 1 AK bullet head and 9mm bullet head were recovered from the spot.
4 (four) of the 19th Assam Rifle personnels were injured in the incident.
The allegations against the respondent/accused was that he had supplied
arms to the NSCN(K).
7. Persuant to the FIR dated 26.03.2015, a case was registered.
Thereafter, the appellant filed charge-sheet before the Court of the Special
Judge, NIA Nagaland, Dimapur on 23.11.2015. The respondent/accused
was thereafter arrested on 18.12.2015. A supplementary charge-sheet
was filed by the appellant on 14.06.2016, wherein the respondent was
named as Accused No. 13 (A-13).
8. The respondent/accused thereafter filed an application for bail vide
Bail Application No. 29/2017. The same was allowed vide the impugned
order dated 01.05.2017.
9. Section 43(D)5 of the UA(P) Act states as follows:-
"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 released.
Provided that such accused person shall not 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."
10. On a perusal of the impugned order, we find that the learned Trial
Court had come to an opinion that the allegation of conspiracy under
Sections 120B IPC and 18 UA(P) Act was not prima facie made out against
the respondent/accused. It also made an observation as to whether the
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prosecution could secure the conviction of the respondent for being a
member of a terrorist organization under Section 20 of the UA(P) Act,
1967 at the conclusion of trial. Thereafter bail was granted to the
respondent.
11. As stated above, the challenge to the impugned order is on the
ground that the learned Trial Court had decided the bail application, after
considering the statement of the respondent/accused made under Section
161 Cr.PC only and that the impugned order had been made in a cryptic
manner.
12. On considering the impugned order, there is nothing to show that the
impugned order has been made without considering the charge-sheet or
the supplementary charge-sheet or that it had been made only after
considering the statement made by the respondent under Section 161
Cr.PC. The impugned order is not cryptic, inasmuch as, reasons for
granting bail has been given. The above being said, we also find that 5
years and 9 months have elapsed from the date of grant of bail to the
respondent/accused.
13. This Court vide order dated 13.12.2022 had directed the learned
Senior Counsel to obtain instructions, as to whether the
respondent/accused was regularly appearing and facing trial before the
learned Trial Court.
14. Mr. DK Das, learned Senior Counsel has submitted various orders
passed by the learned Trial Court, which shows that the
respondent/accused has been regularly appearing and facing trial before
the learned Trial Court.
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15. In view of the above facts, we are of the view that no case for
cancellation of bail has been made out. The application for cancellation of
bail is accordingly rejected. However, keeping in view the apprehension of
the appellant, the observations of the learned Trial Court made in the
impugned order, which is to the effect that the " allegation for conspiracy
under Sections 120B IPC and 18 UA(P) Act is not prima facie made out "
and "whether the prosecution can secure the conviction of the accused for
being a member of a terrorist organization under Section 20 of the UA(P)
Act after the conclusion of the trial " should not be regarded by the learned
Trial Court as findings made on the merits of the case at the time of
disposal of the main case.
16. The Criminal Appeal stands disposed of accordingly.
JUDGE JUDGE
Comparing Assistant
