Jharkhand High Court
Kunwar Ganjhu vs Union Of India Through National ... on 15 January, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1 Cr.Appeal(DB) No.358/2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.358 of 2023
------
Kunwar Ganjhu, aged about 45 years, son of Rambarath Ganjhu
.... .... Appellant
Versus
Union of India through National Investigation Agency
.... .... Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
------
For the Appellant : Mr. Indrajit Sinha, Advocate
: Mr. Shashank Shekhar Pradad, Adv.
For the NIA : Mr. Amit Kumar Das, Advocate
------
10/Dated: 15.01.2024
Per Sujit Narayan Prasad, J.
1. The instant appeal preferred under Section 21(4) of the National
Investigation Agency Act, 2008 is directed against the order
dated 13.02.2023 passed by the AJC-XVI-cum-Spl. Judge, NIA,
Ranchi in Misc. Cr. Application No.183 of 2023 [Special (NIA)
Case No.03 of 2020], corresponding to R.C. No.38 of
2021/NIA/DLI, arising out of Chandwa P.S. Case No.04 of 2020
registered for the offence under Sections 386, 411 and 120B of
the I.P.C., Section 17 of the C.L.A. Act and Sections 13, 16, 17,
20, 21 & 23 of the Unlawful Activities (Prevention) Act, whereby
and whereunder, the prayer for regular bail of the appellant has
been rejected.
Facts
2. The brief facts of the prosecution case leading to this Criminal
Appeal is that on 05.01.2020, Inspector cum SHO of Chandwa
police station had received a reliable information that three
persons came at Budhbazar, Chandwa by a motor-cycle
bearing registration number JH 01 CW773 after collecting levy
from a contractor and further proceeding to deliver the amount
to Maoist Ravindra Ganjhu (A-4).
3. On receipt of the said information, the SHO along with his staff
reached near Shiv Mandir, Budhbazar and noticed that 03
persons were going towards stadium by a motorcycle bearing
registration number JH-01-CW773. It is alleged that after
seeing the police party, all three persons tried to escape but
they were chased and apprehended by the police and on
enquiry, the persons revealed their names as Rajesh Kumar
Ganjhu (A-2), Baijnath Ganjhu (A-1) and Kunwar Ganjhu (A-3)
the appellant herein.
4. It is alleged that when search of the aforesaid persons was
conducted in the presence of two independent witnesses, cash
amounting to Rs. 05 (five) lakhs, a pair of new clothes, a letter
of Maoist Ravindra Ganjhu (A-4) addressed to Sonu Singh (A-
5) and other documents etc. were recovered from their
possession.
5. It is further stated that during preliminary examination, these
persons disclosed that, Ravindra Ganjhu (A-4) called them to
meet at Beerjangha forest, gave a letter with direction to deliver
it to contractor Sonu Singh (A-5) and collect money of Rs. 5
lakhs from Sonu Singh (A-5).
6. Accordingly, they went to Sonu Singh's house, collected cash
of Rs. 5 lakhs from Sonu Singh (A-5) by producing the letter of
Maoist Ravindra Ganjhu (A-4) and delivered the cash to Maoist
Ravindra Ganjhu (A-4) in the forest. They admitted that they
are the couriers of terrorist organization CPI (Maoist) and
involved in collection of levies and passing police information to
Maoist cadres.
7. Accordingly, a case was registered as FIR No.04/2020 dated
05.01.2020 at PS Chandwa, District Latehar, Jharkhand under
sections 386, 411, 120B of the Indian Penal Code(IPC), section
17 of the Criminal Law (Amendment) Act (CLA Act) and
sections 13, 16, 17, 20, 21 and 23 of the Unlawful Activities
(Prevention) Act, (UA(P) Act) against Rajesh Kumar Ganjhu (A-
2), Baijnath Ganjhu (A-1), Kunwar Ganjhu (A-3), Ravindra
Ganjhu (A-4) and Sonu Singh (A-5).
8. After investigation, the Jharkhand state police had filed charge-
sheet vide Final Report No.59/2020 on 02.07.2020 under
sections 386, 411 and 120B of the IPC, section 17 of the CL(A)
Act and sections 13, 16, 17, 20, 21 and 23 of the UA(P), Act
against 03 arrested accused (i) Rajesh Ganjhu (A-2), (ii)
Baijnath Ganjhu (A-1) and (iii) Kunwar Ganjhu (A-3) and
cognizance of the offence was taken on 16.07 2020. Further
investigation of the case was continued by the state police
against other absconding accused.
9. Later on, the Central Government had received information
about registration of case being FIR No.04 2020 dated
05.01.2020 at PS Chandwa, District Latehar, Jharkhand under
sections 386, 411, 120-B of the IPC, section 17 of the CL(A)
Act and sections 13, 16, 17, 20, 21 and 23 of the UA(P) Act
1967 relating to arrest of 03 persons, namely, Rajesh Kumar
Ganjhu (A-2), Baijnath Ganjhu (A-1) and the appellant herein,
Kunwar Ganjhu (A-3) and seizure of cash Rs.5 Lakh, from their
possession.
10. Considering the gravity of the offence, Ministry of Home Affairs,
Government of India, vide order F.No.11011/66/2020/NIA
dated 29.10.2020 directed NIA to take over the investigation of
the aforesaid case.
11. In compliance to the directions of the Ministry of Home Affair
Government of India, NIA, New Delhi PS, re-registered the PS
Chandwa, District Latehar, Jharkhand case FIR No. 04/2020
dated 05.01.2020 as RC-38/ 2020/ NIA/DLI dated 03.11.2020
under sections 386, 411 and 120B of the IPC, section 17 of the
CL(A) Act and sections 13, 16, 17, 20, 21 and 23 of the UA (P)
Act against the aforesaid accused persons and took up the
investigation.
12. During pendency of the investigation, the appellant/accused
Kunwar Ganjhu (A-1) and his accomplices cum co-accused
Baijnath Ganjhu (A-1) and Rajesh Ganjhu (A-2) had filed a bail
petition under section 167 of Cr.PC before the NIA Special
Court, Ranchi but the same was rejected on 19.07 2021.
13. Being aggrieved by the aforesaid bail dismissal order dated
19.07.2021, the appellant Kunwar Ganjhu (A-3), his accomplice
moved to this Court, by way of filing Cr. Appeal (DB) No. 181
of 2021 but the same was rejected by this Hon'ble Court vide
order dated 29.11 2022.
14. Consequently, the above-named appellant had preferred the
regular bail application vide Misc Criminal Application No. 183
of 2023 before the NIA Special Court, Ranchi but the same has
been rejected vide order dated 13.02.2023, against which, the
present appeal has been filed.
Submission of the Learned Counsel for the Appellant
15. Learned counsel for the appellant has assailed the impugned
order on the following grounds: -
(i) The NIA has not established through its investigation as
to what terrorist act was committed by the appellant and
thus no offence under Unlawful Activities (Prevention) Act
can be said to be made out.
(ii) The learned Court below failed to appreciate and
consider that the Appellant has not been found to be a
member of any terrorist organization, nor in any manner
taken part in any decision-making process of the Naxal
organization, thus the appellant cannot be brought within
the ambit and scope of Act, 1967.
(iii) No hard copy of either any Naxal Purcha or Literature has
been recovered from the vehicle which clearly suggests
that the appellant was not going to commit any offence as
alleged in the First Information Report.
(iv) No incriminating articles has been recovered from the
possession of the appellant and he was only pillion rider of
the motorcycle.
(v) The appellant has been arrayed as an accused in the
instant case only on the basis of his own confessional
statements which was made before the Police, however,
the said confession has got no evidentiary value in the eye
of law.
(vi) Appellant is in custody since 06.01.2020, i.e., more than
three years and still investigation is going on and there is
no chance to conclude the trial in near future.
(vii) As per the judgment passed by the Hon'ble Apex Court in
the case of Union of India Vs. K.A. Najeeb reported in
(2021) 3 SCC 713 the personal liberty of the individual has
paramount importance. In the instant case, the trial has not
yet commenced, hence, taking into consideration the period
of custody, it is a fit case where the appellant deserves to
be released from judicial custody.
16. Learned counsel for the appellant, on the aforesaid premise, has
submitted that the learned trial Court ought to have considered
that aspect of the matter, while considering the prayer for regular
bail, but having not been considered, therefore, the impugned
orders need to be interfered with.
Submission of the Learned Counsel for the N.I.A
17. While, on the other hand, learned counsel appearing for the
N.I.A. has defended the impugned orders on the following
grounds: -
(i) The appellant, namely, Kunwar Ganjhu is the named
accused in the FIR and are acted as courier of the CPI
Maoists Organization (A banned Organization).
(ii) When the appellant along with his associates were
apprehended from the spot Rs.05 (five) lakhs cash and
a letter of Maoist Ravindra Ganjhu (A-4) addressed to
Sonu Singh (A-5) and other items/documents etc.
were recovered from their conscious possession.
(iii) The appellant had confessed his guilt in commission of
alleged crime as referred in the charge-sheet and in the
instant case, the confessional statement of the
appellant was in consonance of the incriminating
articles seized, therefore such confessional
statements of the appellant/accused have all the
evidentiary value in the eyes of law.
(iv) The appellant is actively involved in obtaining
extortion of levy from contractors in the name of his
brother Ravindra Ganjhu A-4 who is a top cadre of CPI
Maoist proscribed terrorist organisation.
(v) The ratio of judgment relied upon by the learned counsel
for the appellant as rendered by the Hon'ble Apex Court
in the case of Union of India Vs. K.A. Najeeb (Supra),
is not applicable in the instant case, reason being that, in
the aforesaid case, accused having no criminal
antecedent and in the said case, nature and background
of the offence was different but in the instant case, it has
come on record that appellant has direct nexus with the
banned organisation and altogether, there are two
criminal case pending against him, in which, one is
related to section 10/13 of the UA(P) Act and second
is related to section 17(i)(ii) of CLA Act.
18. Learned counsel appearing for the NIA, therefore, has submitted
on the aforesaid premise that the impugned order requires no
interference.
Analysis
19. We have heard the learned counsel for the parties and
considered the finding recorded by learned Court in the impugned
orders as also the charge-sheet.
20. This Court, before proceeding to examine as to whether the
appellant has been able to make out a prima facie case for
enlarging him on bail, deems it fit and proper to discuss some
settled proposition of law and the relevant provisions of
Unlawful Activities (Prevention) Act, 1967(hereinafter referred
to as Act, 1967) which is required to be considered herein.
21. The main objective of the Act, 1967 is to make powers
available for dealing with activities directed against the integrity
and sovereignty of India. As per Preamble, Act, 1967 has been
enacted to provide for the more effective prevention of certain
unlawful activities of individuals and associations and dealing
with terrorist activities and for matters connected therewith.
Therefore, the aim and object of enactment of U.A.(P) Act is
also to provide for more effective prevention of certain unlawful
activities.
22. To achieve the said object and purpose of effective prevention
of certain unlawful activities the Parliament in its wisdom has
provided that where an association is declared unlawful by a
notification issued under Section 3, a person, who is and
continues to be a member of such association shall be
punishable with imprisonment for a term which may extend to 2
years, and shall also be liable to fine.
23. Clause (m) of Section 2 of the 1967 Act defines "terrorist
organization". It is defined as an organization listed in the First
Schedule. CPI (Maoist) has been listed at Item no. 34 in the
First Schedule. Chapters III onwards of the 1967 Act
incorporate various offences. Chapter IV has the title
"punishment for terrorist act". Clause (k) of Section 2 provides
that "terrorist act" has the meaning assigned to it under Section
15 and the terrorist act includes an act which constitutes an
offence within the scope of, and as defined in any of the
treaties specified in the Second Schedule.
24. Further section 10(a)(i) of Act, 1967 provides that where an
association is declared unlawful by a notification issued under
Section 3 which has become effective under sub-section (3) of
that Section, a person, who is or continues to be a member of
such association shall be punishable with imprisonment for a
term which may extend to two years, and shall also be liable to
fine, therefore, so long as Section 10(a)(i) stands a person who
is or continues to be a member of such association shall be
liable to be punished.
25. As per mandate of section 13 of the Act, 1967 who takes part
in or commits, or advocates, abets, advises or incites the
commission of, any unlawful activity, shall be punishable with
imprisonment for a term which may extend to seven years, and
shall also be liable to fine.
26. At this juncture, it will be purposeful to discuss the core of
Section 43D(5) of the Act, 1967 which mandates that the
person shall not be released on bail if the court is of the opinion
that there are reasonable grounds for believing that the
accusations made are prima facie true apart from the other
offences the appellant is accused of committing offences under
Sections 17, 18 and 21 of the UA(P) Act, 1967.
27. The reason of making reference of the provision of Section
43D(5) of the Act that in course of investigation, the
investigating agency has discovered the material against the
appellant attracting the offence under various Sections of
UA(P) Act. Since, this Court is considering the issue of bail
based upon now also under the various sections of UA(P) Act
and hence, the parameter which has been put under the
provision of Section 43D(5) of the Act is also required to be
considered.
28. The requirement as stipulated under Section 43D(5) of the
UA(P) Act, 1967 in the matter of grant of regular bail fell for
consideration before the Hon'ble Apex Court in the case of
National Investigation Agency Vrs. Zahoor Ahmad Shah
Watali, reported in [(2019) 5 SCC 1], wherein, at paragraph 23,
it has been held by interpreting the expression "prima facie
true" as stipulated under Section 43D(5) of the Act, 1967 which
would mean that the materials/evidence collated by the
investigation agency in reference to the accusation against the
accused concerned in the First 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 offence. It has further
been observed that it must be good and sufficient on its face to
establish a given fact or the chain of facts constituting the
stated offence, unless rebutted or contradicted. 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
the accused "not guilty" of such offence as required under the
other special enactments. For ready reference, paragraph 23 of
the aforesaid judgment is required to be quoted herein which
reads hereunder as :-
"23. By virtue of the proviso to sub-section (5), it is the
duty of the Court to be satisfied 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 the offences under the 1967
Act as well. Notably, under the special enactments such
as TADA, MCOCA and the Narcotic Drugs and
Psychotropic Substances 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
offence. There is a degree of difference between the
satisfaction to be recorded by the Court that there are
reasonable grounds for believing that the accused is "not
guilty" of such offence and the satisfaction to be recorded
for the purposes of the 1967 Act that there are
reasonable 11 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
accused concerned in the first 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 offence. It must be good and sufficient on its face
to establish a given fact or the chain of facts constituting
the stated offence, 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 the accused "not
guilty" of such offence 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 offences under the 1967 Act...."
29. It is, thus, evident from the proposition laid down by the Hon'ble
Apex Court in the case of National Investigation Agency Vrs.
Zahoor Ahmad Shah Watali (Supra) that it is the bounden
duty of the Court to apply its mind to examine the entire
materials on record for the purpose of satisfying itself, whether
a prima facie case is made out against the accused or not.
30. Further, it is settled proposition of law that at the stage of
granting or non-granting of the bail, the Court is merely
expected to record a finding on the basis of broad probabilities
regarding the involvement of the accused in the commission of
the said offence or otherwise and the elaborate examination or
dissection of the evidence is not required to be done at this
stage. Reference in this regard may be made to the Judgment
rendered by the Hon'ble Apex Court in the case of Ranjitsing
Brahmajeetsing Sharma Vrs. State of Maharashtra, reported
in (2005) 5 SCC 294. For ready reference, the following
paragraph of the aforesaid Judgment is being referred as under:
"46. The duty of the court at this stage is not to weigh
the evidence meticulously but to arrive at a finding 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 finding that the materials
collected against the accused during the investigation may
not justify a judgment of conviction. The findings 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."
31. Further, it is the duty of the Court to record its opinion that the
accusation made against the accused concerned is prima facie
true or otherwise and such 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 charge-sheet and other
material gathered by the investigating agency during
investigation.
32. This Court, on the basis of the abovementioned position of law
and the factual aspect, as has been gathered against the
appellant is proceeding to examine as to whether the
accusation against the appellant is prima facie true as
compared to the opinion of accused not guilty by taking into
consideration the material collected in course of investigation.
33. This Court had directed the learned counsel for the N.I.A. to file
counter affidavit, as would appear from the order dated
31.08.2023 and in pursuance thereto, the counter affidavit has
been filed.
34. It is evident from the counter affidavit based upon the material
collected in course of investigation as in the charge-sheet that
the appellant is named accused of this case and from FIR, it is
evident that appellant along with his associates were
apprehended from the place of occurrence, then in presence of
independent witnesses, all the apprehended accused persons
were searched one by one. On search of Baijnath Ganjhu, ten
bundle of 500 notes containing 100 notes in each bundle total
1000/- note valued Rs.5 lakhs cash was seized and from the
back of the shirt, one hand written letter by Naxalite Ravindra
Ganjhu (A-4) addressed to Sonu Singh was found, wherein,
Rs.5 lakh which was levy amount, has been demanded.
35. On recovery of Rs.5 lakhs cash and a letter to Sonu Singh(A-5) by
Ravindra Ganjhu (A-4), all the three persons failed to provide
reasonable explanation, rather, they disclosed that they belong to
close aid of CPI (M) commander Ravindra Ganjhu(A-4) and on the
direction of Ravindra Ganjhu, they used to provide logistic support in
the shape of providing articles, supply letters to other people and
they also inform Ravindra Ganjhu about police movement.
36. The present appellant confessed his guilt and admitted that he is
brother of Ravindra Ganjhu (A-4) who called them and handed over
letter and told to hand over letter to Sonu Singh (A-5). He also told
them that Sonu Singh will give Rs.5 lakh after taking letter and they
all after taking money come to Birjanga forest and hand over to him.
Accordingly, they proceeded to Sonu Singh as per direction of
Ravindra Ganjhu to Chandwa. Accordingly, they handed over letter
to Sonu Singh who immediately gave Rs.5 lakhs to them and also
returned the letter. They were going to hand over money to
Ravindra Ganjhu meanwhile they were caught red handed.
37. Appellant Kunwar Ganjhu (A-3) in his voluntary disclosure,
statement recorded on 18.1.2021, in presence of two independent
witnesses admitted that in 2013-2014 he purchased ten decimals of
land in Kundo village, Kudu Panchayat for a sum of Rs.2,50,000/-
and out of Rs.2,50,000/- his brother Ravindra Ganjhu (A-4)
arranged Rs.50000/- which were collected form one contractor as
levy.
38. It appears from the record that the appellant/ accused had
threatened a contractor for getting work, taking name of his
brother Ravindra Ganjhu (A-4), a top cadre of CPI Maoist and
he got 2/2.50 lakh profit from the said work.
39. It has come on record that the appellant during his disclosure
statement revealed that he used to meet his brother Ravindra
Ganjhu A-4 in the forest upon receiving message from the
letter. On 20/11/2019, appellant along with accused Baijnath
Ganjhu A-1 and Sunil Ganjhu, met accused Ravindra Ganjhu
and discussed about bail matter of Lalita Devi. In his presence
accused Ravindra Ganjhu A-4 asked one person about
Mrityunjay Kumar Singh @ Sonu Singh A-5 and gave one letter
to that person with direction to hand it over to Mrityunjay Kumar
Singh.
40. It is evident from the prosecution version that all 03 accused
were intercepted by police and subsequently arrested together
with cash amounting to Rs. 5 lakhs and one letter of
CPI(Maoist) cadre Ravindra Ganjhu (A-4) addressed to Sonu
Singh (A-5), which indicates that, the appellant/accused Kunwar
Ganjhu (A-3) and his associates had absolute knowledge about
the offence and they had committed the offence, conjointly.
41. During investigation, it has revealed that a mobile number
6200870200 was being used by the accused Kunwar Ganjhu (A-3)
till his arrest and call detail record (CDR) analysis of the said mobile
number revealed that he was in frequent contact with co-accused
persons, namely, Baijnath Ganjhu (A-1), Rajesh Ganjhu (A-2) and
the contact number of accused Kunwar Ganjhu (A-3) was found in
the saved contact list of the mobile phone of accused Baijnath
Ganjhu (A-1) which was seized in the instant case.
42. It appears that during investigation, it has come on record that
the appellant/accused Kunwar Ganjhu (A-3) is an over-Ground
Worker/courier of CPI (Maoist), a proscribed terrorist
organisation and he is actively involved in collection of levies,
extortion of different amounts from the contractors, in the name
of his brother Ravindra Ganjhu (A-4), who is a top cadre of
proscribed extremist organisation CPI (Maoist) and accused of
many terrorist related cases of murder, attempt to murder,
extortion, robbery etc.
43. Thus, it appears from record that the appellant/ accused Kunwar
Ganjhu (A-3) had a clear knowledge that, CPI (Maoist) is a
proscribed terrorist organization and involved in many terrorist acts
across the State. Despite having such knowledge, he continued to
help the said terrorist organization and he acted in blatant
contravention of laws and impair the safety and security of citizens
and the State.
44. It has come on record that the appellant/accused Kunwar Ganjhu
(A-3) is also an accused in two more criminal cases of extortion and
causing hurt or threatening to a public servant, registered at PS-
Chandwa, District-Latehar, Jharkhand vide FIR No.140/18 dated
04.11.2018 under sections 147, 148, 149, 341, 342, 386, 487,
427,435, 436 of IPC, sections 10, 13 of UA (P) Act, section 17 (i)
and 17 (ii) of the CLA Act and FIR No. 34/19 dated 06.04.2019
under sections 341, 323,353, 34 of IPC.
45. The facts disclosed by the appellant were duly corroborated during
course of investigation by way of statement of witnesses and
thereby, prima facie the allegation as made against the accused/
petitioner appears to be true.
46. Thus, from perusal of the various annexures and paragraphs of the
charge sheet, prima facie appears that the appellant (A-3) has
associated himself with terrorist organisation CPI (Moist) knowingly
and aided the said organisation voluntarily and further he has
provided logistics support to terrorist organisation CPI (Moiist), took
part in meeting with its cadres and has collected or received funds
from Sonu Singh (A-5) and others for terrorist organisation CPI
(Maoist) knowing that such funds would be used for terrorism.
47. Thus, it is evident that the appellant connected with CPI Mandet
and actively participating and aiding to the banned organisation.
Recently, the Hon'ble Apex Court has also held in the case of Arup
Bhuyan Vrs. State of Assam & Anr., reported in (2023) 8 SCC
745 that being a member of the banned organization is also an
offence under the UA(P) Act.
48. Learned counsel for the appellant has taken the ground of custody
and has also taken the aid of the judgment passed by the Hon'ble
Apex Court in the case of Union of India Vs. K.A. Najeeb (supra).
49. It has been contended by taking aid of the aforesaid judgment that
in the instant case, many witnesses are there but the trial has not
yet been commenced, hence, taking into consideration the period of
custody, and probable delay in trial, it is a fit case where the
appellant deserves to be released from judicial custody.
50. While, on the other hand, Mr. Amit Kumar Das, learned counsel
appearing for the Respondent-N.I.A. has seriously disputed the
aforesaid fact apart from the merit that against the present
appellant, altogether two criminal cases are pending and his
involvement is direct in commission of offence having closed
associates of four people of the CPI (Maoist).
51. The contention has been made that the judgment relied upon
by the learned counsel for the appellant, i.e., the judgment
rendered by the Hon'ble Apex Court in the case of Union of
India Vs. K.A. Najeeb (Supra), is not fit to be accepted, reason
being that, in the said case, respondent/accused whose bail
was allowed by the High Court and against the order granting
bail, the Union of India had preferred the appeal, was having
no criminal antecedent and in the said case the nature of
offence was different.
52. In the background of aforesaid rival contention, this court has
gone through the judgment as rendered by the Hon'ble Apex
Court in the case of Union of India Vs. K.A. Najeeb (supra). It
is evident from the perusal of the aforesaid judgment that while
giving the indulgence to the facts of the said case, the Hon'ble
Apex Court put a pin-pointed question therein for reducing the
number of witnesses by the N.I.A. and when the same has
been shown to be not possible, then the Hon'ble Apex Court by
taking into consideration the period of custody and there is no
likelihood of the trial in near future, has not interfered with the
order granting bail to the respondent-accused.
53. But here in the instant case, the appellant is having criminal
antecedents and closed associate by giving direct aid to the
Naxal outfit. Further, on instruction, it has been submitted by
the learned counsel appearing for the Respondent-N.I.A that
the N.I.A. depending upon the situation will also reduce the
number of witnesses and try to conclude the trial without any
unnecessary delay.
54. Further, it has come on record that the appellant having
criminal antecedents and as such, submission has been made
that the release of appellant on bail would adversely affect the
trial. He may influence the independent witnesses and may
tamper evidence of this case and as such, his detention in
judicial custody is required for the fair trial of this case and for
the ends of Justice.
55. This Court, after considering the aforesaid fact as referred
hereinabove and based upon the investigation made against
the appellant, wherefrom, it is evident that he is the active
nexus with the Naxal outfit, having given aid to his brother, the
accused no.4, in collecting the money which has been
collected by him through levy and the appellant is having
criminal antecedent which is of like nature, therefore, is of the
view that the case of the appellant is not fit to be considered for
his release from judicial custody.
56. So far as the argument regarding reliance having been placed
upon the judgment of Union of India vs. K.A. Najeeb (Supra)
is concerned, this Court is of the view that in the facts and
circumstances, the aforesaid judgment will not be applicable
herein, since, in the said case, altogether 276 charge-sheeted
witnesses were to be examined and on the pin-pointed
question by the Hon'ble Apex Court, the NIA has submitted that
there is no question of reducing the number of charge-sheeted
witnesses and in view thereof and considering the period of
custody, i.e., more than 5 and half years and also taking into
consideration the spirit of Article 21 of the Constitution of India
the hon'ble Apex Court has not interfered in the order by which
the bail was granted to respondent-accused.
57. While, the fact of the instant case is that there are much less
witnesses and it has further been submitted by the learned
counsel appearing for the NIA, on instruction that in course of
trial, the number of charge-sheeted witnesses may also be
reduced depending upon the situation.
58. Further, the appellant is the active member of the banned
organization and he has got direct involvement in the activities
of the banned organization as per the discussion made
hereinabove and it has also come in the charge-sheet that
against the appellant, two criminal antecedents of the like
nature are also pending.
59. This Court, considering the aforesaid distinguishing facts in the
present case by taking into consideration the active
involvement of the appellant in the extremist activities being
direct associate of the banned organization, is of the view that
the judgment rendered by the Hon'ble Apex Court in the case
of Union of India vs. K.A. Najeeb (Supra) is not fit to be
applied.
60. Accordingly, This Court, on the basis of the facts as referred
hereinabove and coming to the provision of Section 43D(5) of
the Act, 1967 as also the judgment rendered by the Hon'ble
Apex Court in the case of Zahoor Ahmad Shah Watali
(supra) is of the view that it cannot be said that the allegation
levelled against the appellant is prima facie untrue.
61. In view of the foregoing discussions, we find no illegality in the
impugned order dated 13.02.2023 passed in Misc. Cr.
Application No.183 of 2023 by AJC-XVI-cum-Spl. Judge, NIA,
Ranchi, rejecting the bail application of the appellant and as
such, the order impugned requires no interference by this
Court.
62. In the result, we find no merit in instant appeal, hence, the
same is accordingly, dismissed.
63. Pending Interlocutory Application(s), if any, also stands
dismissed.
64. It is made clear that any observation made herein will not
prejudice the case of the appellant in course of trial and view
as expressed by this Court is only limited to the instant appeal.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
Rohit/-A.F.R.
