Jharkhand High Court
Birbal Ganjhu vs Union Of India Through National ... on 10 June, 2024
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Rajesh Kumar
[Against the order dated 16.12.2022 passed in Misc. Criminal
Application No. 1890 of 2022 by the learned Additional Judicial
Commissioner-XVI-cum-Special Judge, NIA at Ranchi in connection
with Special (NIA) Case No. 03/18 (RC-06/2018/NIA/DLI), arising out of
Tandwa P.S. Case No. 02 of 2016]
Criminal Appeal (DB) No. 159 of 2023
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Birbal Ganjhu .... .... Appellant
Versus
Union of India through National Investigating Agency
.... .... Respondent
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Petitioner : Mr. Balaji Shirinivasan, Advocate
For the N.I.A. : Mr. A.K. Das, Spl. P.P.
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C.A.V. on 02/02/2024 Pronounced on 10/06/2024
Per Rongon Mukhopadhyay, J.
Heard Mr. Balaji Shirinivasan, learned counsel for
the appellant and Mr. A.K. Das, learned Spl. P.P. for the National
Investigating Agency.
2. This appeal is directed against the order dated
16.12.2022 passed in Misc. Criminal Application No. 1890 of 2022
by the learned Additional Judicial Commissioner-XVI-cum-Special
Judge, NIA at Ranchi in connection with Special (NIA) Case No.
03/18 (RC-06/2018/NIA/DLI), arising out of Tandwa P.S. Case
No. 02 of 2016, for the offences registered u/s 414, 384, 386, 387
and 120B of the Indian Penal Code, Sections 25(1-b)(a), 26 and 35
of the Arms Act and Section 17(1)(2) of the Criminal Law
Amendment Act and u/s 17, 18 and 20 of the Unlawful Activities
(Prevention) Act, 1967, whereby and whereunder the learned
Special Judge has rejected the prayer for bail of the appellant.
3. A written report was submitted by Ramdhari Singh,
Sub Inspector of Police, posted at Simaria P.S. to the effect that on
10.01.2016, a secret information was received by the
Superintendent of Police that in Amrapali Magadh Coal area in
Tandwa some local people have formed an association which is
related to the banned extremist outfit TPC. The members of such
association were extracting levy from coal traders and DO holders
by creating fear in the name of the extremists of TPC, namely
Gopal Singh Bhokta @ Brijesh Ganjhu, Mukesh Ganjhu, Kohram
Ji, Akraman Ji @ Ravindra Ganjhu, Anischay Ganjhu, Bhikan
Ganjhu, Deepu Singh @ Bhikan and Bindu Ghanju. It was also
alleged that if any businessmen hesitates to pay levy, they are
threatened by members of such organization and are also
subjected to hardships. In order to verify the truthfulness or
otherwise of such information a raiding party was constituted on
the orders of Superintendent of Police, Chatra. A raid was
conducted in the house of the President of the association Binod
Kumar Ganjhu and from under his bed as well as from an almirah
Rs. 91,75,890/- was recovered. No satisfactory explanation could
be submitted by Binod Kumar Ganjhu with respect to the recovery
of such a huge amount of cash. From the house of Binod Kumar
Ganjhu two persons were also apprehended who disclosed their
names as Birbal Ganjhu and Munesh Ganjhu and on search of
their persons a loaded Mauser pistol was recovered from the
possession of Birbal Ganjhu while from the possession of Munesh
Ganjhu a country made pistol and two live cartridges were
recovered. Both had confessed of being associated with TPC
organization. Binod Ganjhu had disclosed that he is the President
of "Magadh Sanchalan Samittee" and the levy collected is sent to
Gopal Singh Bhogta @ Brijesh Ganjhu and thereafter it is
distributed between Mukesh Ganjhu, Kohramji, Akramanji @
Ravindra Ganjhu, Anischyaji, Bhikan Ganjhu and Deepu Singh @
Bhikan. He had further disclosed that Bindu Ganjhu is a member
of "Amrapali Sanchalan Samittee" who collects levy on behalf of
TPC and since he is at present in jail the collection of levy is being
done by Pradeep Ram. On such information a raid was conducted
in the house of Pradeep Ram and from under his bed as well as
from an almirah Rs. 57,57,710/- in cash was recovered. No
satisfactory explanation could be given by Pradeep Ram with
respect to the cash recovered.
4. Based on the aforesaid allegations Tandwa P.S.
Case No. 02 of 2016 was instituted for the offences under Sections
414, 384, 386, 387, 120B of the I.P.C., Section 25(1-b)(a), 26/35 of
the Arms Act and Section 17 (1)(2) of Criminal Law Amendment Act
against Binod Kumar Ganjhu, Munesh Ganjhu, Pradeep Ram,
Birbal Ganjhu, Gopal Singh Bhokta @ Brijesh Ganjhu, Mukesh
Ganjhu, Kohramji, Akramanji @ Ravindra Ganjhu, Anischya
Ganjhu, Deepu Singh @ Bhikan, Bindu Ganjhu @ Bindeshwar
Ganjhu and Bhikan Ganjhu.
On 10.03.2016 charge sheet was submitted against
the other accused persons before the learned Chief Judicial
Magistrate, Chatra. On 09.04.2017 on the prayer made by the
Investigating Officer offences under Sections 16, 17, 20 and 23 of
the Unlawful Activities (Prevention) Act, 1967 (herein after referred
to as the UAP Act for the sake of brevity) were added. Since the
offences involved a scheduled offence, in exercise of powers
conferred u/s 6(3) read with Section 8 of the National Investigation
Agency, Act 2008, the Central Government vide order dated
13.02.2018 had directed the National Investigation Agency to take
up the investigation of the case consequent to which Tandwa P.S.
Case No. 02 of 2016 was re-registered as NIA Case No. RC-
06/2018/NIA/DLI.
The first supplementary charge sheet bearing
Charge Sheet No. 32/2018 was filed by the NIA on 21.12.2018.
5. It has been submitted by Mr. Balaji Shirinivasan,
learned counsel appearing for the appellant that the appellant has
been implicated only on account of a Mauser pistol and a loaded
magazine having been recovered from the possession of the
appellant. Learned counsel has submitted that from the
supplementary charge-sheet submitted by the N.I.A. there does not
appear to be any material which would indicate association of the
appellant with a terrorist organization. It has further been
submitted that in the supplementary charge- sheet, it has been
indicated that the appellant has got criminal antecedents but the
same cannot form the basis for rejection of the prayer for bail of
the appellant and in such context, he has referred to the case of
"Vernon versus State of Maharashtra and Another" reported in 2023
SCC OnLine SC 885. Mr. Shirinivasan, has submitted that in order
to bring the offence u/s 38 of the Unlawful Activities (Prevention)
Act, 1965, it is necessary to prove the intention on the part of the
said accused to further the activities of the organization and
merely on a vague allegation that the appellant is involved in
extortion and collection of levy on behalf of the terrorist
organization would not suffice to conclude his involvement with the
terrorist organization in the backdrop of there being no materials
indicating the intent of the appellant. Mr. Balaji Shirinivasan, has
also attacked the order of sanction by submitting that the sections
under the UAP Act were never included in the charge-sheet and in
fact on a misconception the order of sanction has been passed. It
has been submitted that in spite of specific direction of the Hon'ble
Supreme Court to expedite the trial the trial has not concluded
and he apprehends that there will be a prolonged trial which would
lead to incarceration of the appellant for an indefinite period and
while submitting so it has been brought to the notice of the Court
that the petitioner had earlier remained in custody from
11.01.2016 till 16.11.2016 and he was granted bail and once the
investigation was taken over by the N.I.A. the appellant is in
custody since 20.04.2019. It has thus been submitted that the
appellant has remained in custody for a total period of more than
five years and considering the fact that there is no active role
depicted by the N.I.A. in the supplementary charge-sheet so far as
the appellant is concerned, he deserves to be released on bail.
Learned counsel for the appellant in support of
such contention has referred to the case of "Subhan Mian versus
Union of India through National Investigating Agency" in Criminal
Appeal (D.B.) No. 394 of 2021 and the order passed on 19.12.2022
was affirmed by the Hon'ble Supreme Court in SLP (Crl.) D No.
21803/2023 on 06.07.2023. Mr. Shirinivasan has also drawn the
attention of the Court to an order passed by the Hon'ble Supreme
Court in Miscellaneous Application No. 2653 of 2023 in SLP (Crl.)
No. 7609 of 2022, wherein pursuant to a request made by the
learned Additional Judicial Commissioner-XVI-cum-Special Judge,
NIA, Ranchi seeking extension of time for conclusion of trial the
same was extended for a period of one year from the date of the
order i.e. 12.01.2024. In the context of the said order, learned
counsel apprehends that there is remote possibility of the trial
being concluded in the near future.
6. Mr. A.K. Das, learned Spl. P.P. for the N.I.A. has
contradicted the commencing point addressed by the leaned
counsel for the appellant by referring to Clause 16.1 of the first
supplementary charge-sheet wherein it has been noted that on a
raid conducted in the house of Binod Kumar Ganjhu Rs.
91,75,890/- was seized and the appellant as well as one Munesh
Ganjhu were apprehended from the said house. He has also
submitted that at the instance of Binod Kumar Ganjhu the Police
had conducted a raid in the house of Pradeep Ram wherein an
amount of Rs. 57,57,710/- were seized. So far as the appellant is
concerned, one loaded Mauser pistol was seized from his
possession. While referring to para 16.1 of the supplementary
charge-sheet, Mr. Das has tried to contradict the submission
advanced by the learned counsel for the appellant with respect to
the allegations against the appellant being vague and baseless. So
far as the question of antecedent is concerned, reference has been
made to para 17.9 of the first supplementary charge-sheet wherein
it has been categorized that five criminal cases involving Arms Act,
Extortion and other offences have been registered against the
present appellant. The case of "Vernon versus State of Maharashtra
and Another" (supra) upon which much reliance has been placed
by Mr. Shirinivasan has been sought to be distinguished by Mr.
Das by submitting that the allegations against the said accused
operated in a different field which cannot be of any assistance to
the appellant. Mr. Shirinivasan has pointedly referred to the
sanction order which according to him is illegal to which Mr. Das
has referred to an order passed by this Court in W.P.(Cr.)(DB) No.
308 of 2022, wherein the sanction order was under scrutiny but
the same was dismissed by a coordinate Bench of this Court. It
has been stated that since the legal sanctity of the order of
sanction has been settled by virtue of the order of the coordinate
Bench in W.P.(Cr.)(DB) No. 308 of 2022, therefore, there is no
question for the issue to be raised and considered at this stage.
Mr. Das has also submitted that the prayer for bail of the appellant
was earlier rejected by this Court and was affirmed up to the
Hon'ble Supreme Court and the grounds which have been agitated
by the learned counsel for the appellant have already been
considered in the earlier round of litigation and, therefore, there is
no fresh ground for reconsideration of his prayer for bail.
In this context, he has referred to the case of
"Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav & Anr.",
reported in (2005) 2 SCC 42. So far as the progress of trial is
concerned, it has been submitted that 112 witnesses have already
been examined and the trial is pending for examination of some
formal witnesses and it is expected that the trial shall be
concluded at the earliest. According to Mr. Das, grant of bail to the
appellant when the trial is at the fag end would ultimately lead to
the trial being unnecessary prolonged as there is an apprehension
that the appellant once he is granted bail would abscond.
7. We have heard the learned counsel for the
respective parties and have also perused various affidavits brought
on record.
8. The prayer for bail of the appellant was earlier
rejected in Cr. Appeal (D.B.) No. 104 of 2020 on 24.06.2020.
Against the said order the appellant had moved the Hon'ble
Supreme Court in Special Leave to Appeal (Crl.) No. 4583 of 2020
which was dismissed on 12.10.2020.
9. The application for bail preferred by the appellant
was, therefore, dismissed on merits and affirmed up to the Hon'ble
Supreme Court.
10. So far as the question of sanction raised by the
learned counsel for the appellant is concerned, the same appears
to have been settled by virtue of the order passed in W.P.(Cr.)(DB)
No. 308 of 2022.
11. In the supplementary charge-sheet the role of the
appellant has been demarcated which reads thus:
"17.14 Role and activities of / offences
established against Birbal Ganjhu (A-3):
Therefore as per the averments made
hereinabove/in the pre-paragraphs, it is established
that he is armed cadre of TPC. He, being member of
terrorist gang, was closely associated with top
leaders of the gang and used to extort levy from coal
transporters / contractors and raised funds for the
terrorist gang. He was arrested on 11.01.2016 with
fire arms and ammunitions. Therefore, it is
established that Birbal Ganjhu (A-3), by becoming
member of terrorist gang / unlawful association
TPC, proscribed by Government of Jharkhand,
assisted in the operations / management of TPC in
criminal conspiracy with members of the terrorist
gang including A-1, A-2, A-4, A-14 with intent to aid
the above said terrorist gang collected funds from
illegitimate sources through extortion from the
contactors coal traders / Coal Transporters and
further was in unauthorized possession of fire arms
and ammunition and conspired with co-accused for
terrorist act. Thereby accused Birbal Ganjhu (A-3)
committed offences under sections 120B r/w 387,
384, 386, 414 of the IPC, sections 17, 18, and 20 of
the UA(P) Act, 25(1B)a, 26 and 35 of the Arms Act,
section 17 of the CLA Act, 1908."
12. Mr. Balaji Shirinivasan, learned counsel for the
appellant has contended that the appellant has remained in
custody since 20.04.2019 and had earlier remained in custody for
about 10 months prior to the investigation of the case being taken
up by the NIA which would indicate that the appellant has
remained in custody for about six years.
13. At this juncture, we may refer to the case of "Union
of India versus K.A. Najeeb" reported in (2021) 3 SCC 713, wherein
it has been held as follows:
"17. It is thus clear to us that the presence of
statutory restrictions like Section 43-D(5) of the UAPA
per se does not oust the ability of the constitutional
courts to grant bail on grounds of violation of Part III of
the Constitution. Indeed, both the restrictions under a
statute as well as the powers exercisable under
constitutional jurisdiction can be well harmonised.
Whereas at commencement of proceedings, the courts
are expected to appreciate the legislative policy
against grant of bail but the rigours of such provisions
will melt down where there is no likelihood of trial
being completed within a reasonable time and the
period of incarceration already undergone has
exceeded a substantial part of the prescribed
sentence. Such an approach would safeguard against
the possibility of provisions like Section 43-D(5) of the
UAPA being used as the sole metric for denial of bail
or for wholesale breach of constitutional right to
speedy trial."
14. In the case of "Vernon versus State of Maharashtra
& Anr." reported in 2023 SCC OnLine SC 885, it has been held as
follows:
"44. In the case of Zahoor Ahmad Shah Watali (supra)
reference was made to the judgment of Jayendra
Saraswathi Swamigal v. State of Tamil Nadu [(2005) 2
SCC 13) in which, citing two earlier decisions of this
court in the cases of State v. Jagjit Singh (AIR 1962 SC
253) and Gurcharan Singh v. State of (UT of Delhi)
[(1978) 1 SCC 118), the factors for granting bail under
normal circumstances were discussed. It was held
that the nature and seriousness of the offences, 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 tempered
with; the larger interest of the public or the State
would be relevant factors for granting or rejecting bail.
Juxtaposing the appellants' case founded on Articles
14 and 21 of the Constitution of India with the
aforesaid allegations and considering the fact that
almost five years have lapsed since they were taken
into custody, we are satisfied that the appellants have
made out a case for granting bail. Allegations against
them no doubt are serious, but for that reason alone
bail cannot be denied to them. While dealing with the
offences under Chapters IV and VI of the 1967 Act, we
have referred to the materials available against them
at this stage. These materials cannot justify continued
detention of the appellants, pending final outcome of
the case under the others provisions of the 1860 Code
and the 1967 Act."
15. The prayer for bail of the appellant was rejected by
the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No.
4583 of 2020 and the learned trial court was requested to expedite
the trial. One of the co-accused namely, Bindeshwar Ganjhu @
Bindu Ganjhu had moved the Hon'ble Supreme Court against the
order of rejection of his bail in Special Leave to Appeal (Crl.) No.
7609 of 2022 which was disposed of on 28.11.2022 with a
direction to the learned trial court to proceed with the trial on a
day-today basis meaning thereby the witnesses be
examined/reexamined on all days except holidays and all
endeavour shall be made by the Investigating Agency to keep the
witnesses present for examination/reexamination so that the trial
may not have to be adjourned for non-availability of witnesses for
examination/reexamination. The learned trial court was directed to
conclude the trial at the earliest and preferably within a period of
one year. The trial has, as informed to us, not been concluded as
yet.
16. Several co-accused persons have been granted bail
by this Court and we may refer to the case of "Subhan Mian versus
Union of India through National Investigating Agency" in Criminal
Appeal (D.B.) No. 394 of 2021, wherein apart from the merits of the
case the period of incarceration undergone by the said co-accused
was also considered and it was concluded in the following manner.
"19. The trial though is likely to be concluded in the
near future considering the direction of the Hon'ble
Supreme Court in the case of Bindeshwar Ganjhu @
Bindu Ganjhu but regard being had to the facts, based
on the discussion made herein before that no prima
facie is made out against the appellant as envisaged
u/s 43-D(5) of the UAP Act and the period of
incarceration undergone by the appellant, we are of
the conscious view that the appellant deserves the
privilege of bail."
17. The Union of India against the aforesaid order had
moved the Hon'ble Supreme Court in SLP (Crl.) D No. 21803/2023
and the same was dismissed on 06.07.2023.
18. In view of the circumstances noted above specially
with respect to the fact that the appellant has remained in custody
for a total period of about six years, we hereby set aside the order
dated 16.12.2022 passed in Misc. Criminal Application No. 1890 of
2022 by the learned Additional Judicial Commissioner-XVI-cum-
Special Judge, NIA at Ranchi in connection with Special (NIA) Case
No. 03/18 (RC-06/2018/NIA/DLI), arising out of Tandwa P.S. Case
No. 02 of 2016, by which, the prayer for bail of the appellant was
rejected.
19. The appellant shall be released on bail on usual
conditions to be decided by the learned trial court.
20. We make it clear that the learned trial court shall
not be influenced while conducting the trial of any of the
observations made by us in this order as such observations /
findings are restricted only for the purpose of grant of bail to the
appellant.
21. This appeal is allowed.
22. Pending I.A., if any, stands closed.
(Rongon Mukhopadhyay, J.)
(Rajesh Kumar, J.)
High Court of Jharkhand at Ranchi
Dated, the 10th day of June, 2024.
A. Sanga/NAFR
