Jharkhand High Court

Prakash Sahu @ Chotu Sahu Aged About 25 ... vs The State Of Jharkhand on 18 January, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        Cr. Appeal (DB) No. 704 of 2023
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Prakash Sahu @ Chotu Sahu aged about 25 years S/o Late Ramdayal Sahu R/o Village-Sogra P.O. & P.S. Sisai District-Gumla(Jharkhand) ... ... Appellant Versus The State of Jharkhand ....Respondent

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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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For the Appellant : Mr. Kripa Shankar Nanda, Advocate For the Resp.State : Mr. Bhola Nath Ojha, A.P.P.

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th 05/Dated: 18 January, 2024

1. The instant criminal appeal has been filed under Section 21(4) of the

National Investigation Agency Act, 2008 against the order dated 06.04.2023

passed by the learned Sessions Judge, Gumla in Anticipatory Bail Petition

No. 21 of 2023, whereby and whereunder the prayer for pre-arrest bail in

connection with Sisai P.S. Case No.155 of 2022 registered under Section

379 and 411 of Indian Penal Code, under section 21 of Mines &

Minerals(Development & Regulation) Act, 1957, under Rule 54 of

Jharkhand Minor Minerals Concession Rules, 2004, Rule 13 of Jharkhand

Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules,

2017 and Section 4/5 of Explosive Substance Act, has been rejected.

2. Learned counsel for the appellant has submitted that it is a case where the

appellant has falsely been implicated, since, no incriminating material has

been recovered and no connectivity has been found against the appellant,

although, the name of the appellant has come in the instant case based upon

the confessional statement of the co-accused. The Ground has also been

taken that there is one criminal antecedent i.e. under the Arms Act and

prayer has been made that since there is no recovery of any explosive

substance from the physical possession of the appellant and as such it is not

a case where the ingredient of sections 4/5 of Explosive Substance Act is

made out.

3. On the other hand, learned Additional Public Prosecutor for the State of

Jharkhand has vehemently opposed the prayer of bail by referring the

counter affidavit. By taking instance of the one criminal antecedent pending

against the appellant, learned counsel for the State has submitted that

considering the gravity of the offence, it is not a fit case where the pre-arrest

bail can be granted to the appellant and considering the aforesaid facts that

the prayer for pre-arrest bail has been rightly rejected by the court below and

as such the same can not be interfered.

4. We have heard the learned counsel for the parties, come across the findings

recorded by the learned court by considering the prays for pre-arrest bail and

the stand taken in the counter affidavit.

5. We are conscious of the fact that personal liberty is a very precious

fundamental right enshrined in Article 21 of the Constitution of India and

deprivation of liberty is a matter of grave concern. It should be curtailed only

when it becomes imperative to the peculiar facts and circumstances of the

case.

6. Further, the argument has been advanced regarding no ingredient of Section

3/4 of the Explosive Substance Act, 1908 in order to assess the said

argument has come across, the allegation as levelled in the First Information

Report and also the counter affidavit, we found therefrom that no allegation

regarding recovery of any Explosive Substance Act has been referred.

Therefore, the prima facie we are of the view that till date the prosecution

has not been able to come up with evidence of attracting ingredient of

sections 3/4 of the Explosive Substance Act.

7. Therefore, even accepting the prosecution version that there is illegal mining

and as such the allegation of section 21 of Mines & Minerals(Development

& Regulation) Act, 1957, under Rule 54 of Jharkhand Minor Minerals

Concession Rules, 2004, Rule 13 of Jharkhand Minerals (Prevention of

Illegal Mining, Transportation and Storage) Rules, 2017 is fit to be attracted

then only the maximum punishment under section 21 of MMDR Act is five

years and so far as the penal offence under the Jharkhand Minor Mineral

Concession Rule is concerned of three years and hence applying the

principle laid down by Hon'ble Apex Court in the case of Satender Kumar

Antil Vs. Central Bureau of Investigation & Anr. reported in (2021) 10

SCC 773, wherein the Hon'ble Apex Court has been pleased to hold that the

custodial interrogation is not required if the offence is less than 7 years. The

relevant paragraph of the aforesaid judgment is being quoted here as under:-

3. We are inclined to accept the guidelines and make them a part of the order of the Court for the benefit of the courts below. The guidelines are as under:

"Categories/Types of Offences (A) Offences punishable with imprisonment of 7 years or less not falling in Categories B and D. (B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.

(C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (Section 37), PMLA (Section 45), UAPA [Section 43-D(5)], Companies Act [Section 212(6)], etc. (D) Economic offences not covered by Special Acts.

Requisite Conditions (1) Not arrested during investigation. (2) Cooperated throughout in the investigation including appearing before investigating officer whenever called.

(No need to forward such an accused along with the charge- sheet Siddharth v. State of U.P. [Siddharth v. State of U.P., (2022) 1 SCC 676] ) Category A After filing of charge-sheet/complaint taking of cognizance

(a) Ordinary summons at the 1st instance/including permitting appearance through lawyer.

(b) If such an accused does not appear despite service of summons, then bailable warrant for physical appearance may be issued.

(d) NBW may be cancelled or converted into a bailable warrant/summons without insisting physical appearance of the accused, if such an application is moved on

behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.

(e) Bail applications of such accused on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided.

Category B/D On appearance of the accused in court pursuant to process issued bail application to be decided on merits.

Category C Same as Categories B and D with the additional condition of compliance of the provisions of bail under NDPS (Section 37), Section 45 of the PMLA, Section 212(6) of the Companies Act, Section 43-D(5) of the UAPA, Pocso, etc."

8. This Court considering the aforesaid fact is of the view that it is a case where

the privilege of pre-arrest bail is to be considered and granted, accordingly,

the learned trial court has failed to consider the aforesaid principles and

hence, we are of the view that the impugned order must be interfered with.

9. Accordingly, the order dated 06.04.2023 passed in A.B.P. Case No.21 of

2023 in connection with Sisai P.S. Case No. 155 of 2022, is hereby quashed

and set aside.

10.In view thereof, the instant appeal stands allowed.

11.On consideration of the aforesaid facts, this Court is inclined to extend the

privilege of pre-arrest bail to the appellant. The appellant, named above,

accordingly, is directed to surrender before the learned court below within

10 days and on his surrender, he shall be released on bail on furnishing bail

bond of Rs.25,000/- (Rupees Twenty Five Thousand Only) with two sureties

of the like amount each, to the satisfaction of the learned J.M.1st Class,

Gumla in connection with Sisai P.S. Case No. 155 of 2022, subject to the

condition as follows:

(i) that the appellant shall co-operate in the investigation and shall appear

before the investigation agency and the learned trial court, as and

when required;

(ii) that the appellant shall not, directly or indirectly make any

inducement, threat or promise to any person acquainted with the facts

of the case so as to dissuade him from disclosing such facts to the

court or tamper with the evidence;

(iii) that the appellant shall surrender his passport, if any, to the concerned

trial Court forthwith. His passport will remain in custody of the

concerned trial Court;

(iv) that the petitioner shall not leave India during the pendency of trial

without prior permission from the concerned trial Court;

(v) that in default of any of the conditions mentioned above, the

investigating officer shall be at liberty to file appropriate application

for cancellation of anticipatory bail granted to the appellant;

13. In view thereof, the instant appeal stands disposed of.

12.

13.

(Sujit Narayan Prasad, J.)

(Pradeep Kumar Srivastava, J.) pappu/-