Page No.# 1/8 vs The State Of Assam
2025 Latest Caselaw 3691 Gua

Gauhati High Court

Page No.# 1/8 vs The State Of Assam on 4 March, 2025

Author: Manash Ranjan Pathak

Bench: Manash Ranjan Pathak

                                                                                    Page No.# 1/8

GAHC010003072025




                                                                            2025:GAU-AS:2217

                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : Bail Appln./100/2025

             MAMUNUR RASHID
             S/O HAJI PARA,
             P.S. HOWLY
             DIST. BARPETA, ASSAM,
             PIN-781316

             VERSUS

             THE STATE OF ASSAM
             REP BY THE PP, ASSAM

Advocate for the Petitioner   : MR H R A CHOUDHURY, P. GHOSH,B DAS,MR. A M AHMED

Advocate for the Respondent : PP, ASSAM,

BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

04/03/2025

Heard Mr. A. M. Ahmed, learned counsel for the petitioner and Mr. B. Sarma, learned Additional Public Prosecutor, Assam for the State.

2. Petitioner, Mamunur Rashid, son of Eusuf Ali, resident of Village-Haji Para, Police Station-Howly, District-Barpeta has filed this application under Section 483 BNSS, 2023 praying for his bail in Sessions Case No. 10/2023, arising out of Barpeta Police Station Case No. 763/2022, registered under Sections 120(B)/ 121/ 121-A IPC read with Sections 17/18/18(B)/19/20 of the Unlawful Activities (Prevention) Act, 1967, in which, he was arrested on 12.09.2022 and is in custody since then.

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3. As per the FIR dated 28.07.2022 lodged before Barpeta Police Station, the case is that based on intelligence inputs and local enquiries on certain information that came to light during the investigating of two other Barpeta Police Station Cases, being (i) Barpeta P.S. Case No. 268/2022 under Sections 120(B)/121/121(A) IPC read with Sections 17/18/18(B)/19/20 of the Unlawful Activities (Prevention) Act, 1967 read with Section 12(1)(c) of the Passport Act, 1967 and 14 A(b) of the Foreigners Act, 1946 and (ii) Barpeta P.S. Case No. 419/2022 under Sections 120(B)/121/121(A) IPC read with Sections 17/18/18(B)/19/20 of the Unlawful Activities (Prevention) Act, 1967 regarding existence of a Jehadi (terror) outfit based in Bangladesh and operating in the district of Barpeta, it was learnt that several modules of the banned Ansarullah Bangla Team (ABT) having affiliation to Al-Qaeda in the Indian Subcontinent (AQIS) being active in Barpeta district and that the members/supporters of ABT are indoctrinating and motivating youth/men of Barpeta district to join such Jehadi outfits and work in modules "Ansars" (Sleeper cells) for creating a base for Al-Qaeda and its manifestations in various forms of names and styles in India, all of which are declared terrorist organisations in India as per the provisions of the Unlawful Activities (Prevention) Act, 1967. On examination, it is found that those modules had hatched a criminal conspiracy with other members of ABT along with a group of men/youth of the district for facilitating further training of indoctrinated youth/men for waging Jehad and related terrorist activities in the district where they are working towards advocating, abetting, inciting, assisting, harbouring, recruiting and collecting funds for organizing and committing unlawful and terrorist activities in the name of Jehad.

4. In the said FIR dated 28.07.2022, initially eight such persons involved in the case were named and others were yet to be identified. Said FIR was accordingly registered as Barpeta Police Station Case No. 763/2022 under Sections 120(B)/121/121-A IPC read with Sections 17/18/18(B)/19/20 of the Unlawful Activities (Prevention) Act, 1967.

5. During the course of the investigation, many such accused persons of the case were arrested including the petitioner and on completion of the investigation of the case, charge-sheet in said Barpeta P.S. Case No. 763/2022 was submitted on 17.01.2023 against fifteen such arrested persons, including the petitioner.

6. After submitting the charge-sheet on 17.01.2023, said Barpeta P.S. Case No. 763/2022 was re-numbered as Sessions Case No. 10/2023 before the Court of leaned Sessions Judge, Barpeta.

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7. On 20.07.2023 in said Sessions Case No. 10/2023, charges under Sections 18/19/20 of the Unlawful Activities (Prevention) Act, 1967 were framed against all the fifteen accused persons of the case, including the petitioner. Out of those fifteen charge-sheeted accused persons of the case, except the petitioner, Mamunur Rashid and another, namely, Saiful Islam, thirteen were already granted bail, out of which, two were granted bail on 04.01.2023 and 09.01.2023 before submission of the charge-sheet in the case and others were granted bail on 27.01.2023, 08.12.2023, 19.01.2024, 01.02.2024 and 29.11.2024.

8. Mr. Ahmed, learned counsel for the petitioner submitted that all the fifteen accused persons of the case of said Barpeta P.S. Case No. 763/2022, including the present petitioner have been convicted and punished for three years by the NIA Court in its Judgment dated 22.01.2025 passed in Special NIA Case No. 3/2023.

9. Mr. Ahmed, learned counsel submitted that as on 11.02.2025, the prosecution had examined 19 (nineteen) numbers of its witnesses and 36 (thirty-six) numbers of named prosecution witnesses are yet to be examined before the Trial Court in said Sessions Case No. 10/2023 (arising out of said Barpeta P.S. Case No. 763/2022) and that 10.03.2025 is the date fixed for recording of further evidence in the said Sessions Case.

10. Mr. Ahmed, learned counsel for the petitioner submitted that other co-accused of the case as have been released on bail, the petitioner is also entitled for his bail, at least on parity, in said Sessions Case No. 10/2023, arising out of said Barpeta P.S. Case No. 763/2022. Mr. Ahmed placed reliance, more particularly on Para 98 of the Judgment of the Hon'ble Apex Court in the case of Satender Kumar Antil -Vs- Central Bureau of Investigation and Another, reported in (2022) 10 SCC 51, wherein, their Lordships have observed that --

"98. Uniformity and certainty in the decisions of the court are the foundations of judicial dispensation. Persons accused with same offence shall never be treated differently either by the same court or by the same or different courts. Such an action though by an exercise of discretion despite being a judicial one would be a grave affront to Articles 14 and 15 of the Constitution of India."

11. Mr. Ahmed, learned counsel for the petitioner reiterated that the Co-ordinate Bench, while granting bail to eight of the accused persons of the case considered the said Judgment of Antil of the Hon'ble Apex Court while granting them bail in said Sessions Case No. 10/2023, arising out of Page No.# 4/8

Barpeta P.S. Case No. 763/2022, pending before the Court of learned Sessions Judge at Barpeta.

12. Mr. B Sharma, learned Additional Public Prosecutor, Assam submitted that parity in granting bail in all of the cases cannot be considered. The burden shifts to the accused when the matter relates to the accusation under the Unlawful Activities (Prevention) Act, 1967.

13. With regard to granting of bail, Mr. B. Sharma, learned Additional Public Prosecutor, Assam relied on the decision of the Hon'ble Apex Court in the case of Ramesh Bhavan Rathod -Vs- Vishanbhai Hirabhai Makwana (Koli) & Another, reported in (2021) 6 SCC 230, wherein, their lordships have referred and discussed its earlier judgments such as the case of Ram Govind Upadhyay -Vs- Sudarshan Singh & Others, reported in (2002) 3 SCC 598 wherein it is held that

-- While granting bail it is the duty of the Court to consider the nature and gravity of the crime and the seriousness of the offence. In the said judgment of Ram Govind Upadhyay (Supra), the Hon'ble Apex Court has laid down that -- The Court should consider all the important circumstances as to whether bail should be granted or not, where the nature of the crime to record is one of the basic considerations which has a bearing on the granting or denial of bail.

14. Mr. B. Sharma, learned Addl. PP, Assam submitted that considering the involvement of the petitioner under the Unlawful Activities (Prevention) Act, 1967, his bail application in said Sessions Case No. 10/2023 should be rejected.

15. As per the charge-sheet submitted in said Barpeta P.S. Case No. 763/2022, the petitioner Mamunur Rashid met the co-members of Ansarullah Bangla Team (ABT), a Jehadi (terror) outfit based on Bangladesh and provided accommodation to Saiful Islam, Aminul Islam @ Mehdi Hassan, Mehbubur Rahman @ Sayed @ Faruk @ Sultan, Abdullah Falha @ Zakir, Shariful Mandal @ Fahim @ Farbar Ali @ Tauhidur Rehman etc. at his Dhakaliapara Madrasa, who are the members of said Jehadi outfit of Ansarullah Bangla Team of Bangladesh.

16. The chargesheet of the case indicates that it is the petitioner who appointed one Aminul Islam @ Mehdi Hassan, a member of the Ansarullah Bangla Team, Bangladesh as Emam of Dhakaliapara Masjid and also as an Arabic teacher in his Madrasa. It is seen that the petitioner also appointed another Ansarullah Bangla Team member, Mehbubur Rahman @ Sayed @ Faruk @ Sultan as an Arabic teacher in his said Madrasa.

17. The petitioner voluntarily visited different Dharma Sabhas along with the members of banned Ansarullah Bangla Team and helped those ABT members in spreading the ideas and Page No.# 5/8

views of ABT and also in recruiting new members to the ABT.

18. From the records, it is seen that it is the petitioner who helped those members of the banned Ansarullah Bangla Team to transfer their money through his own SBI account and sending/forwarding such money of ABT's to different places for organisational work of the ABT.

19. The petitioner also allowed those members of banned ABT to use his Office chamber along with logistic support like computer, printer etc. for propagating Jehadi activities, whereas the petitioner was fully aware that those members of the banned ABT are Bangladeshi nationals, who are advocating terrorist activities that are against the Unity, Integrity and Sovereignty of the Country.

20. It is well settled that, amongst other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

21. In the case of Ramesh Bhavan Rathod (Supra) the Hon'ble Apex Court reaffirmed its earlier decisions and have held that -- The considerations which must weigh with the Court in granting bail have been formulated in the decisions of this Court in Ram Govind Upadhyay -Vs- Sudarshan Singh [(2002) 3 SCC 598], Prasanta Kumar Sarkar -Vs- Ashis Chatterjee [(2010) 14 SCC 496], Sanjay Chandra -Vs- CBI [(2012) 1 SCC 40] and State of Kerala -Vs- Mahesh [(2021) 14 SCC 86].

22. In Neeru Yadav -Vs- State of U.P., reported in (2014) 16 SCC 508, the Hon'ble Supreme Court have 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.

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23. The Hon'ble Apex Court in the case of Ramesh Bhavan Rathod (supra) have held that -- 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.

24. With regard to the claim of parity in bail when bail was granted to a co-accused, it is settled by the Hon'ble Apex Court that -- Bail cannot be granted to an accused without having due regard to the seriousness and gravity of crime. [emphasis provided (2021) 17 SCC 788, Mahadev Meena -Vs- Praveen Rathore]

25. In a case of co-accused granted bail, the Hon'ble Apex Court in the case of Tarun Kumar Vs. Assistant Director of Enforcement , reported in AIR 2024 SC 169 have held that -- Parity is not the law. Parity in law pertaining to bail to an accused person involved in serious and heinous offences is not applicable. When the offences are serious in nature, the burden shifts to the accused to prove that he is not involved in the case so as to get the bail. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration.

26. In the case in hand, it is a case where the petitioner is involved with a banned organization 'Ansarullah Bangla Team' (ABT), a Jehadi (terror) outfit based on Bangladesh that is related to Al- Qaeda, another banned terrorist organization.

27. Excepting the parity in granting bail, the petitioner did not place any other material before the Court to show that the grounds set forth in the charge-sheet of the case are prima-facie not true.

28. The Hon'ble Apex Court in the case of NIA Vs. Zahoor Ahmed Shah Watali reported in (2019) 5 SCC 1 have held that -- The question as to whether there are reasonable grounds for believing that the accusation made against an accused are prima facie true or not have to be answered keeping in mind the totality of materials including the one presented along with the police report.

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29. In the case in hand, charge under Sections 18, 19 and 20 have been framed against the petitioner under the Unlawful Activities (Prevention) Act, 1967. The Hon'ble Apex Court have held that a high burden in terms of the special provisions contained in said 1967 Act is on the accused to demonstrate that the prosecution has not been able to show that the accusation against him/her is prima-facie true and does not alter the legal positions ( Zahoor Ahmed Shah Watali) (Supra) referring the said Court's earlier decisions in the cases of K. Veeraswami -Vs- Union of India and Others, reported in (1991) 3 SCC 655 and Hitendra Vishnu Thakur -Vs- State of Maharashtra, reported in (1994) 4 SCC 602.

30. In the case in hand, the accused was booked under the provisions of said Unlawful Activities (Prevention) Act, 1967. The petitioner himself admitted that in a similar incident NIA Court has held him guilty and he is undergoing sentence imposed by the NIA Court.

31. As noted above, in the charge-sheet dated 17.01.2023 submitted by the Investigating Officer in said Barpeta P.S. Case No. 763/2022, the accusation made against the petitioner are very serious in nature where the petitioner not only provided accommodation to the core members of the 'Ansarullah Bangla Team' (ABT), a Jehadi (terror) outfit based on Bangladesh knowing well that those were Bangladeshi nationals and advocating terrorist activities against India, but also made one of such ABT member whom he accommodated in his house as Emam of the Masjid as well as an Arabic Teacher in his own Madrassa, also appointed another ABT member as an Arabic Teacher in his own Madrassa. The petitioner further allowed to use his own SBI Account to those ABT members to transfer their money to various places for organizational work of the ABT, allowed all those ABT members to use his office chamber along with logistic support like, computer, printer, etc. for propagating Jehadi activities.

32. As noted above, the petitioner has criminal antecedent for which he was convicted by the NIA Court and is now undergoing sentences. Petitioner himself is closely related and connected with the members of the Ansarullah Bangla Team', Jehadi (terror) outfit, based on Bangladesh, who is propagating Jehadi activities.

33. It is also seen that the petitioner could not place any materials before the Court that the accusation made against him by the prosecution prima-facie are not true as under the UA(P) Act, 1967, it is the burden on the accused to overcome the threshold limit as provided under the said Act. For an accused involved in Unlawful Activities (Prevention) Act, 1967 to grant bail or not, the Page No.# 8/8

Hon'ble Apex Court in the case of Karender Singh -Vs- State of Punjab and Others , reported in (2024) 5 SCC 403 have held that -- The courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under the UAP Act, the courts are merely examining if there is justification to reject bail. The "justifications" must be searched from the case diary and the final report submitted before the Special Court. The legislature has prescribed a low, "prima facie" standard, as a measure of the degree of satisfaction, to be recorded by the Court when scrutinising the justifications [materials on record].

34. In the said decision of Karender Singh after considering the various provisions of the UA(P) Act, the Hon'ble Supreme Court have also held that -- Mere delay in trial pertaining to grave offences cannot be used as a ground to grant bail.

35. In the case in hand, after examination of about 19 prosecution witnesses out of 36 numbers of named prosecution witnesses in the charge-sheet as on 15.10.2024, the prosecution did not adduce any evidence and as noted earlier, the next date of recording of further evidence in said Sessions Case No. 10/2023 is fixed on 10.03.2025.

36. Considering the decisions of the Hon'ble Apex Court, noted above and the materials placed before the Court by the prosecution vide charge-sheet dated 17.01.2023 and also considering the involvement of the petitioner in criminal activities of similar nature for which he has been convicted by the NIA Court, this Court is of the opinion that the law of parity will not be applicable in the case in hand though the other accused persons have already been released on bail in said Sessions Case No. 10/2023 in which he is in custody since 12.09.2022.

37. Accordingly, this bail application of the petitioner, Mamunur Rashid, son of Eusuf Ali in said Sessions Case No. 10/2023 arising out of Barpeta Police Station Case No. 763/2022 stands rejected.

JUDGE

Comparing Assistant