Md. Abdul Rhman Ali Khan @ Md. Abdul ... vs The State Of Jharkhand
2024 Latest Caselaw 2597 Jhar

Jharkhand High Court

Md. Abdul Rhman Ali Khan @ Md. Abdul ... vs The State Of Jharkhand on 4 March, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
        Cr. Appeal (DB) No.1741 of 2023
Md. Abdul Rhman Ali Khan @ Md. Abdul Rehman Ali Khan
@ Md. Abdul Rahman @ Abdul Rehman @ Katki
                                          ...    ...    ...   Appellant
                   Versus
The State of Jharkhand ...           ...   ...     ...      ...    Respondent
                   ---------

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD CORAM: HON'BLE MR. JUSTICE ARUN KUMAR RAI

---------

For the Appellant:         Md. Shadab Ansari, Advocate
For the State:             Mr. Pankaj Kumar, P.P.
                           ---------
             th
03/Dated: 04 March, 2024

1. The appeal filed under Section 21(4) of the National Investigation

Agency Act, 2008 is directed against the order dated 18.09.2023

passed by the learned Addl. Sessions Judge-I, Jamshedpur in

Sessions Trial No.219 of 2021 arising out of Bistupur P.S. Case

No. 21 of 2016 (G.R. No.246 of 2016) registered under Sections

121/121-A/124-A/120-B/34 of the IPC, Sections 25-1A, 25(1-

b)a/26/35 of the Arms Act, Section 17 of the C.L.A. Act and

Sections 6/8/16/17/18/18-(B)/19/20/21/23 of the Unlawful Activities

(Prevention) Act, 1967, whereby and whereunder the prayer for

regular bail of the appellant has been rejected.

2. The prosecution case has arisen on the basis of self statement of

the informant Jitendra Kumar, the then Officer-in-Charge of

Bistupur P.S. Jamshedpur who has stated that on 22.01.2016 an

information was given by the Special Police Team of Delhi Police

that one Ahmad Masood Akram Sheikh @ Masood @ Mom,

resident of Rajjak Colony, Dhatkidih is linked with the terrorist

organization "Al-Qaeda" and he is connecting other youths of the

city to his network and as such investigation was started by

registering a Sanha.

3. It is further stated that on 22.01.2016 the aforesaid Ahmad Masood

Akram Sheikh @ Masood @ Monu was called in police station and

after some necessary interrogation he was released from the

police station. It is further alleged that a detailed investigation was

done in respect of the aforesaid Sanha and during the course

some questions arose and to verify it he again called the aforesaid

Ahmad Masood Akram Sheikh @ Masood @ Monu to police

station on 25.01.2016 and in that interrogation he accepted his

involvement in the terrorist activity and it was told by him that in the

year 2003 he met with Abdul Rahman @ Katki in Jama Masjid,

Sakchi, who is resident of Cuttak, Orrisa and he is one of the main

organizer of "Al-Qaeda" Terrorist organization and now that Abdul

Rahman @ Katki has been arrested by Delhi Police and it was the

said Katki who got him connected with the "Al-Qaeda" group and

he used to meet with aforesaid Abdul Rahman @ Katki at the

house of Maulana Kalimuddin, resident of Jawahar Nagar, Mango

and it was also told by him that for taking Zehadi Training he had

gone to Saudi Arabia in the year 2011 and when he returned from

there he met with Abdul Shami of Dhatkidih who had just returned

from Pakistan after taking Zehadi training and he has also been

arrested by Delhi Police.

4. It was also told by the said accused that for increasing terrorist

activity arms are supplied to us by Raju @ Nasim Akhtar, resident

of Road No 6, Zakir Nagar Old Purulia Road, Jamshedpur and that

arms have been kept by him in his house. He has further stated

that one another person is also connected with his organization

and that person has also taken Zehadi training in Pakistan.

5. It is further alleged that on the basis of disclosure statement of

aforesaid Ahmad Masood Akram Sheikh @ Masood @ Monu, a

team was constituted in his leadership with SI Fulan Nath, the then

Officer-in-charge Mango, SI Suman Anand, the then Officer-in-

charge Sonari, ASI Surendra Kumar Malakar, ASI Krishna Prasad

Mandal, constable Munir Khan, Dilip Kumar Yadav and he

proceeded to the place of occurrence with the accused and search

was made in the house of aforesaid accused in presence of two

independent witnesses namely Laxmi Narayan Singh and Shrawan

Singh following the search rules and a 9 m.m. Pistol, made in

Japan no. 7111 loaded with five live cartridges of 9 mm, which had

9 m.m. 2 Z560K written on its bottom hidden in the drawer of T.V.

Stand and a mobile of Samsung Company vide model ET57582

bearing IMEI no. 351550067719319/01, 351601607719310101

containing SIM card no. 8877656699, two books of Barmud Atkun,

Dajal Adkare Masnoon, Chips, in which Tran-send 8 GB Micro

HCL was written and material for increasing terrorist activity was

loaded therein, terrorist literature in Urdu and English language 1

to 9 pages, paper cutting of news paper related with terrorism were

seized.

6. It is further alleged that so many incidents of increasing the

terrorism activity have been uploaded in seized chips and seized

books are also related to radicalism, which encourage the activities

of terrorism group "Al-Qaeda" and thereby the above-named

accused and his associates used to instigate the other youths of

the locality to join the Jehadi Training to commit terrorist activities.

In this written report, the informant has mentioned the name of

Ahmad Masood Akram Sheikh @ Masood @ Monu, Raju @

Nasim, Abdul Shami and Abdul Rahman @ Katki (appellant) as

accused persons of this case.

7. Md. Shadab Ansari, learned counsel appearing for the appellant

has taken a ground that save and except the confessional

statement of the co-accused persons, no incriminating material has

been surfaced said to attract any of the offence under which the

appellant has been implicated.

8. It has been contended that the appellant is in custody since

26.04.2016 in a case where there is no incriminating article said to

be recovered showing the direct complicity of the appellant for

imparting training to the young citizens of the country to be a part

of the terrorist group i.e. "Al-Qaeda".

9. A submission has also been made that one co-accused Maulana

Kalimuddin Muzahiri @ Maulana Kalimuddin Muzahid has been

directed to be released on bail by the learned Single Judge in B.A.

No.6730 of 2020 dated 03.11.2020. The contentions of the learned

counsel for the appellant are as follows:-

(i) The appellant is in custody since 26.04.2016 and since then,

almost eight years have lapsed and hence, taking into

consideration the period of custody, a sympathetic view

should be taken by setting aside the impugned order.

(ii) The learned counsel in order to strengthen his argument has

relied upon a judgment rendered by the Hon'ble Supreme

Court in the case of Union of India Vs. K.A. Najeeb [(2021)

3 SCC 713].

(iii) Another ground has been taken by the learned counsel for

the appellant that there is no incriminating article save and

except confessional statement of the co-accused persons.

(iv) One of the co-accused persons namely Maulana Kalimuddin

Muzahiri @ Maulana Kalimuddin Muzahid has been directed

to be released on regular bail by the learned Single Judge

vide order dated 03.11.2020 passed in B.A. No.6730 of

2020.

10. The submission based upon the aforesaid grounds has been made

that the learned Court below ought to have taken into consideration

the aforesaid grounds while considering the prayer for regular bail,

but having not done so, therefore, in this appeal the impugned

order needs to be interfered with.

11. While on the other hand, Mr. Pankaj Kumar, the learned Public

Prosecutor appearing for the respondent-State, has vehemently

opposed the prayer for bail on the following grounds:-

(i) The confessional statement so recorded of the other co-

accused persons in paragraphs 39 and 110 and the

confessional statement of the appellant at paragraph 123

and several other paragraphs are the substantive piece of

evidence collected in course of investigation showing the

culpability of the appellant in commission of crime by

imparting training to the young citizens of the country to be

part of the international terrorist group Al-Qaeda.

(ii) It has been submitted that it is not only that he was imparting

training, rather it has come in the confessional statement so

recorded in the aforesaid paragraphs that he had visited

Saudi Arabia for getting training as a course to impart

training to the others so that they be utilized for the purpose

of terrorist activities being members of the "Al-Qaeda".

(iii) The ground in response to the submission that the appellant

is in judicial custody since 26.04.2016, it has been submitted

that the appellant has also been implicated in a case of like

nature in Delhi wherein since he was in judicial custody at

the time when he was remanded in the present case on

26.04.2016, but time and again he on the basis of transit

remand and the appearance sought for by the competent

court of criminal jurisdiction of the Delhi Court had been

produced before the Delhi Court which ultimately culminated

in his conviction. It has been submitted that now after the

judgment of conviction having been passed against the

appellant in the Delhi case, the appellant has been produced

in the instant case and now he is languishing in the judicial

custody and the trial of the present case is going on and out

of 15 witnesses 02 witnesses have already been examined

as would appear from the order impugned.

(iv) So far as the ground taken of long custody and the judgment

of the Hon'ble Supreme Court in the case of K.A. Najeeb

(supra) is concerned, the same cannot be said to be

applicable in the facts and circumstances of the present

case.

(v) The learned counsel appearing for the State has also

submitted that the instance which has been taken of the

order of bail granted in favour of one co-accused Maulana

Kalimuddin Muzahiri @ Maulana Kalimuddin Muzahid who

has been directed to be enlarged on bail vide order dated

03.11.2020 passed in B.A. No.6730 of 2020 is quite different

as the learned Single Judge has granted bail after observing

that no material has been collected with regard to his

involvement in any of the "Al-Qaeda" activities and thereafter

the case of co-accused Nasim Akhtar @ Raju has been held

to be different as there was material against him that he

went to different States for undergoing training.

(vi) The learned State Counsel has also submitted that the

identically placed accused persons have been refused to be

enlarged on bail as would appear from the reference to the

effect having been made in the impugned order i.e. the order

dated 28.01.2021 passed in B.A. No.1195 of 2020, the order

dated 22.11.2019 passed in B.A. No.9017 of 2019, the order

dated 10.05.2019 passed in B.A. No.4032 of 2019 and the

order dated 28.08.2020 passed in B.A. No.4056 of 2020.

The prayer for bail of other co-accused persons namely

Nasim Akhtar @ Raju has also been rejected by the Hon'ble

Apex Court in S.L.P. (Crl.) No.8711 of 2018, therefore, it has

been submitted that the case of this appellant since is

identical to the case of the co-accused persons whose bail

has been rejected and, therefore, the contention that the

identically placed accused persons have been granted bail is

not correct.

12. Learned counsel appearing for the State based upon the aforesaid

grounds has submitted that it is not a fit case where the prayer for

bail should be granted by interfering with the impugned order.

13. This Court has heard the learned counsel appearing for the parties,

gone through the finding recorded by the learned Court below in

the impugned order and the case diary which has been called for

by this Court vide order dated 25.01.2024.

14. The main ground as has been taken on behalf of the appellant is

the long custody. In addition to that, the merit and identically

placed co-accused person having been granted regular bail,

namely, Maulana Kalimuddin Muzahiri @ Maulana Kalimuddin

Muzahid by the learned Single Judge in B.A. No.6730 of 2020 is

concerned, in response to the same it has been submitted on

behalf of the State that long custody cannot be said to be a ground

for releasing on bail in a case having impact across the country

leading to terrorist activities by imparting training to the young

citizens of the country. Therefore, this Court deems it fit and proper

first to consider the issue of custody.

15. The learned counsel for the appellant has taken the ground of

custody by putting reliance upon the judgment of K.A. Najeeb

(supra). Therefore, this Court needs to go through the factual

aspect of the said judgment.

16. It is evident from the factual aspects that in the said case the

period of custody was taken note in the facts and circumstances

wherein the co-accused persons whose trial was split up and they

have been convicted on culmination of trial for maximum

punishment of eight years and subsequently, the appellant of the

said case namely K.A. Najeeb was apprehended and when the trial

proceeded, at that time altogether 276 witnesses were to be

examined. The Hon'ble Apex Court in the aforesaid pretext and

taking into consideration that by that time said K.A. Najeeb was

already in custody for five years, sought for a query from the

National Investigation Agency as to whether there is any chance of

reducing of number of witnesses so that the trial may be concluded

at an early date.

17. The NIA did not agree to reducing the number of witnesses and in

that view of the matter, the Hon'ble Apex Court has observed that

since 276 witnesses have to be examined and the appellant has

already remained in custody for about five years, hence in

examining the remaining 276 witnesses, the maximum punishment

which was inflicted upon the other co-accused person after

culmination of their trial on splitting up the same, it will cross the

maximum punishment of eight years and in that view of the matter,

the Hon'ble Apex Court has not interfered with the order granting

bail which has already been granted by the High Court.

18. Thus, it is evident that the sole criteria of custody were not taken

into consideration, rather the maximum punishment of eight years

since was imposed against the co-accused persons after splitting

up their trial, was the paramount consideration for enlarging on bail

said K.A. Najeeb.

19. Further, it needs to be referred herein that after the judgment

rendered in the case of K.A. Najeeb (supra), the Hon'ble Apex

Court very recently has taken into consideration the said judgment

and also the judgment as rendered by the Hon'ble Apex Court in

National Investigation Agency v. Zahoor Ahmad Shah Watali,

(2019) 5 SCC 1 in the case of Gurwinder Singh Versus State of

Punjab, 2024 SCC OnLine SC 109, wherein it has been observed

by the Hon'ble Apex Court that, the proviso to Sub-section (5) of

Section 43D puts a complete embargo on the powers of the

Special Court to release an accused on bail and lays down that if

the Court, on perusal of the case diary or the report made under

Section 173 of the Code of Criminal Procedure, is of the opinion

that there are reasonable grounds for believing that the accusation,

against such person, as regards commission of offence or offences

under Chapter IV and/or Chapter VI of the UAP Act is prima facie

true, such accused person shall not be released on bail or on his

own bond.

20. The Hon'ble Apex Court further observed that the conventional

idea in bail jurisprudence vis-à-vis ordinary penal offences that the

discretion of Courts must tilt in favour of the oft-quoted phrase -

"bail is the rule, jail is the exception‟ - unless circumstances justify

otherwise - does not find any place while dealing with bail

applications under UAP Act and the "exercise" of the general

power to grant bail under the UAP Act is severely restrictive in

scope.

21. In the aforesaid context it has further been observed by the

Hon'ble Supreme Court that the courts are, therefore, burdened

with a sensitive task on hand and in dealing with bail applications

under UAP Act, the courts are merely examining if there is

justification to reject bail and the "justifications‟ must be searched

from the case diary and the final report submitted before the

Special Court.

22. In the aforesaid background the Hon'ble Apex Court has held that

the test for rejection of bail is quite plain and Bail must be rejected

as a "rule‟, if after hearing the public prosecutor and after perusing

the final report or Case Diary, the Court arrives at a conclusion that

there are reasonable grounds for believing that the accusations are

prima facie true. It has further been observed that it is only if the

test for rejection of bail is not satisfied - that the Courts would

proceed to decide the bail application in accordance with the

"tripod test' (flight risk, influencing witnesses, tampering with

evidence).

23. For ready reference following paragraphs of the Gurwinder Singh

Versus State of Punjab (supra) are being quoted herein under,

wherein the Hon'ble Apex Court has held that in the UAPA, the jail

will be the rule and bail will be the exception. The relevant

paragraph of the said case of is as under: -

"27. A bare reading of Sub-section (5) of Section 43D shows that apart from the fact that Sub-section (5) bars a Special Court from releasing an accused on bail without affording the Public Prosecutor an opportunity of being

heard on the application seeking release of an accused on bail, the proviso to Sub-section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail. It lays down that if the Court, „on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure‟, is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the UAP Act is prima facie true, such accused person shall not be released on bail or on his own bond. It is interesting to note that there is no analogous provision traceable in any other statute to the one found in Section 43D(5) of the UAP Act. In that sense, the language of bail limitation adopted therein remains unique to the UAP Act.

28. The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - "bail is the rule, jail is the exception‟ - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act. The "exercise‟ of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D (5)- "shall not be released‟ in contrast with the form of the words as found in Section 437(1) CrPC - „may be released‟ - suggests the intention of the Legislature to make bail, the exception and jail, the rule.

29. The courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under 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 Court when scrutinizing the justifications [materials on record]. This standard can be contrasted with the standard of "strong suspicion‟, which is used by Courts while hearing applications for discharge--"

24. In this background, the test for rejection of bail is quite plain. Bail

must be rejected as a "rule‟, if after hearing the public prosecutor

and after perusing the final report or Case Diary, the Court arrives

at a conclusion that there are reasonable grounds for believing that

the accusations are prima facie true. It is only if the test for

rejection of bail is not satisfied that the Courts would proceed to

decide the bail application in accordance with the "tripod test"

(flight risk, influencing witnesses, tampering with evidence). This

position is made clear by Sub-section (6) of Section 43D, which

lays down that the restrictions, on granting of bail specified in Sub-

section (5), are in addition to the restrictions under the Code of

Criminal Procedure or any other law for the time being in force on

grant of bail. The Hon'ble Apex Court in the aforesaid judgment

after textual reading of Section 43 D(5) of the UAP Act, has

formulated the guideline which was summarized in the form of a

twin-prong test. For ready reference the relevant paragraph is

being quoted herein under:

"31. On a textual reading of Section 43 D(5) UAP Act, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarised in the form of a twin-prong test:

1) Whether the test for rejection of the bail is satisfied?

1.1 Examine if, prima facie, the alleged "accusations‟ make out an offence under Chapter IV or VI of the UAP Act 1.2 Such examination should be limited to case diary and final report submitted under Section 173 CrPC;

2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC ("tripod test‟)?"

25. From the above, it is evident that the Hon'ble Apex Court has been

pleased to set at rest the issue of custody in the matter of UAP Act

even by taking into consideration the principles laid down under

Article 21 of the Constitution of India holding that in such

circumstances the jail is the rule and the bail is exception.

26. This Court is now to examine the submission as to whether the

delay will be the cause in concluding the trial on behalf of the

prosecution? It has been submitted by the learned State Counsel

that that the appellant had been tried in another identical matter in

competent court of criminal jurisdiction in Delhi from which case he

was remanded in the present case on 26.04.2016. Thereafter, time

and again he was sought to be produced in the said case at Delhi

which lingered the trial of the Court at Jamshedpur which is the

subject-matter of the present appeal.

27. This Court is, therefore, of the view that it cannot be said that there

is laches on the part of the prosecution in concluding the trial,

rather it is due to the circumstances of pending criminal case of the

like nature in Delhi the delay has been caused. It has been

submitted by the learned counsel on behalf of the State that after

the conclusion of the trial in Delhi Court, the appellant has again

been produced before the competent Court at Jamshedpur and

thereafter the trial has progressed and out of only 15 witnesses, 02

witnesses have already been examined which would be evident

from the order impugned.

28. This Court, therefore, is of the view that the ground which has been

taken by stating that there is a violation of Article 21 of the

Constitution of India and placing reliance on the judgment rendered

by the Hon'ble Apex Court in the case of K.A. Najeeb (supra)

which has been taken into consideration in another judgment

rendered by the Hon'ble Apex Court in the case of Gurwinder

Singh (supra), cannot be said that due to the laches of the

prosecution, the trial has been lingered.

29. So far as the issue of parity with the case of co-accused Maulana

Kalimuddin Muzahiri @ Maulana Kalimuddin Muzahid who has

been directed to be enlarged on bail vide order dated 03.11.2020

passed by the learned Single Judge in B.A. No.6730 of 2020 is

concerned, this Court before entering into the aforesaid legal issue

with the aid of the principle of parity, thinks it pertinent to refer the

settled legal proposition as well as the judicial pronouncements of

the Hon'ble Apex Court.

30. It is well settled connotation of law that the principle of parity is to

be applied if the case of the fact is exactly to be similar then only

the principle of parity in the matter of passing order is to be passed

but if there is difference in between the facts then the principle of

parity is not to be applied.

31. It is further settled connotation of law that Court cannot exercise its

powers in a capricious manner and has to consider the totality of

circumstances before granting bail and by only simple saying that

another accused has been granted bail is not sufficient to

determine whether a case for the grant of bail on the basis of parity

has been established. Reference in this regard may be taken from

the judgment as rendered by the Hon'ble Apex Court in Ramesh

Bhavan Rathod v. Vishanbhai Hirabhai Makwana, (2021) 6 SCC

230, wherein, it has been held as under:

"25. We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 :] ,

this Court has 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. This Court observed: (SCC p. 515, para

17) "17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history-sheeter, it was imperative on the part of the High Court to scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of parity.

It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge- sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside.

26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12-2020 [Pravinbhai Hirabhai Koli v. State of Gujarat, 2020 SCC OnLine Guj 2986], [Khetabhai Parbatbhai Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2988] , the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22-10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High Court recorded) that he was "assigned similar role of armed with stick (sic)". Again, bail was granted to Vanraj Koli (A-16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-

10), Kheta (A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. 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."

32. Similarly, the Hon'ble Apex Court in Tarun Kumar Versus

Assistant Director Directorate of Enforcement, 2024 SCC

OnLine SC 148, has held that parity is not the law and while

applying the principle of parity, the Court is required to focus upon

the role attached to the accused whose application is under

consideration.

33. It has further been held in the said judgment that the principle of

parity is to be applied in the matter of bail but equally it has been

laid down therein that there cannot be any negative equality,

meaning thereby, that if a co-accused person has been granted

bail without consideration of the factual aspect or on the ground

said to be not proper, then, merely because the co-accused person

has been directed to be released on bail, the same will not attract

the principle of parity on the principle that Article 14 envisages

positive equality and not negative equality. For ready reference,

relevant paragraph, i.e., paragraph- 18 and 19, of the aforesaid

judgment reads as under:

"18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that

parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/operator/controller of various shell companies were granted bail on the ground of infirmity and medical grounds. The co-accused Raman Bhuraria, who was the internal auditor of SBFL has been granted bail by the High Court, however the said order of High Court has been challenged by the respondent before this Court by filing being SLP (Crl.) No. 9047 of 2023 and the same is pending under consideration. In the instant case, the High Court in the impugned order while repelling the said submission made on behalf of the appellant, had distinguished the case of Raman Bhuraria and had observed that unlike Raman Bhuraria who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day-to-day operations of the company. It was also observed that the appellant's role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said order passed by the High Court."

19. It is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitution. However, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order. Article 14 is not meant to perpetuate the illegality or

irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision."

34. It is evident from the said judgment that the principle of parity

although is to be made applicable in the matter of bail also, but the

factual background along with the involvement of one or other the

accused persons is to be assessed before reaching to the

conclusion on the ground of parity.

35. Before entering into the principle laid down under Article 14 of the

Constitution of India this Court thinks it proper to consider the

imputations so made against the co-accused Maulana Kalimuddin

Muzahiri @ Maulana Kalimuddin Muzahid who has been directed

to be enlarged on bail by the learned Single Judge in B.A. No.6730

of 2020 vide order dated 03.11.2020.

36. The other facts which also need to be considered based upon the

submissions made by the learned State Counsel are that the

identically placed accused persons have been refused to be

granted bail vide order dated 28.01.2021 passed in B.A. No.1195

of 2020, the order dated 22.11.2019 passed in B.A. No.9017 of

2019, the order dated 10.05.2019 passed in B.A. No.4032 of 2019

and the order dated 28.08.2020 passed in B.A. No.4056 of 2020.

37. So far as the issue of parity with regard to grant of bail to co-

accused Maulana Kalimuddin Muzahiri @ Maulana Kalimuddin

Muzahid in B.A. 6730 of 2020 dated 03.11.2020 is concerned, it is

pertinent to mention here that the prayers for bail of other co-

accused vide order dated 28.01.2021 passed in B.A. No.1195 of

2020, the order dated 22.11.2019 passed in B.A. No.9017 of 2019,

the order dated 10.05.2019 passed in B.A. No.4032 of 2019 and

the order dated 28.08.2020 passed in B.A. No.4056 of 2020 have

been rejected by the learned Single Judges of this Court.

38. This Court has also gone through the material collected in course

of investigation as taken note in the case diary particularly the

confessional statement made by the co-accused persons at

paragraphs 39 and 110 wherefrom it is evident that the appellant

has visited foreign country i.e. Saudi Arabia for the purpose of

getting training so that he be able to impart training to the young

people of the country to be active members of the Al-Qaeda, a

terrorist organization, as has been declared in the schedule to the

Unlawful Activities (Prevention) Act, 1967.

39. It is, thus, evident that the allegation against the appellant is

serious, while the allegation against Maulana Kalimuddin Muzahiri

@ Maulana Kalimuddin Muzahid, since no specific attributability

has been found against him, led the learned Single Judge of this

court to grant the bail.

40. The issue of parity since this court is considering hence, the entire

imputation levelled against the appellant is to be considered along

with imputation made against the person concerned who has been

granted bail in view of the judgment rendered by the Hon'ble Apex

Court in the case of Tarun Kumar Versus Assistant Director

Directorate of Enforcement (Supra).

41. This Court, therefore, is of the view that it is not a case where the

benefit of privilege of bail is to be granted in favour of the appellant

on the ground that co-accused person, namely, Maulana

Kalimuddin Muzahiri @ Maulana Kalimuddin Muzahid has been

granted bail for the reasons as stated hereinabove.

42. This Court after having gone through the disclosures made by the

co-accused persons at paragraphs 39 and 110 having been

confessed by the appellant as would be evident from paragraph

123 of the case diary and further the case of the identically placed

accused persons have already been dealt with by the learned Trial

Court and the prayer for the regular bail has already been rejected,

the learned Trial Court on the aforesaid pretext has rejected the

prayer for bail by passing the impugned order which, according to

our considered view, cannot be said to be suffering from infirmity,

that too, when in one matter even the Hon'ble Apex Court has

refused to enlarge co-accused, namely, Nasim Akhtar @ Raju on

bail in S.L.P. (Crl.) No.8711 of 2018.

43. This Court based upon the aforesaid discussions is of the view that

the impugned order needs no interference by this Court. Therefore,

the prayer for bail of the appellant is hereby rejected.

44. Resultantly, this appeal fails and it is dismissed.

(Sujit Narayan Prasad, J.)

(Arun Kumar Rai, J.) Manoj/-