Jharkhand High Court
Rishi Kumar vs National Investigation Agency on 16 April, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2025:JHHC:11760-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.913 of 2024
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Rishi Kumar, aged about 51 years, son of Indranath Singh, R/o Village-
Benipur, PO & PS-Salimpur, District-Patna, State-Bihar
... ... Appellant
Versus
National Investigation Agency ... ... 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. R.S. Mazumdar, Sr. Advocate
For the Respondent : Mr. Amit Kumar Das, Advocate
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th
Order No.08 /Dated:16 April, 2025
Per Sujit Narayan Prasad, J:
Prayer
1. At the outset, it needs to mention herein that the instant appeal
was listed on Board on 03.04.2025. On that day the matter was heard on
merit by this Court and hearing was concluded. Thereafter, the matter
was fixed for today, i.e., on 16.04.2025 under the heading for "Orders".
2. The instant criminal appeal has been preferred on behalf of the
appellant under Section 21(4) of the National Investigation Agency Act,
2008 for setting aside the order 10.06.2024 passed in Misc. Criminal
Application No. 1503 of 2024 by the learned AJC-XVI-cum-Spl. Judge,
NIA, Ranchi whereby and whereunder the prayer for regular bail of the
appellant in connection with Special (NIA) Case No.04 of 2021
corresponding to R.C. No.04/2021/NIA/RNC, arising out of A.T.S.
Ranchi P.S. Case No. 01/2021 registered for the offence under Sections
120B of the Indian Penal Code, under Section 25(1-b)A, 26 and Section
35 of Arms Act, Section 17 of CLA Act and Sections 13, 19, 20 and
Section 21 of U.A.(P) Act, has been rejected.
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Factual Matrix
3. The prosecution case is based upon the typed report of sub
inspector Vishal Pandey of ATS on 14.11.2021. In his typed report SI
Vishal Pandey alleged that while investigation of the Tandwa P.S. Case
No. 132/2021 he came to know that Avinash Kumar S/o Jairam Sharma
and few other persons are supplying arms and ammunitions to miscreants
and extremist groups.
4. Accordingly, officer in- charge ATS police station entered
station diary 8/2021 dated 12.11.2021 and after giving information to the
superior police officials, he was being handed over matter for
certification, one team was constituted. He along with team members
proceeded to certify the fact on 12.11.2021. On 13.11.2021, Informant
with his team members reached Imamganj police station and
communicated information and requested for co-ordination, accordingly,
officer in-charge Imamganj and STF team of Bihar proceeded for
Imamganj market where they met Avinash Kumar Sharma @ Chunnu
resident of Parasia PS Imamganj District- Gaya and he was accompanied
for inquiry.
5. During inquiry Avinash Kumar Sharma @ Chunnu disclosed that
he along with Rishi Kumar (appellant herein) used to provide arms and
ammunitions to members of CPI Maoists organisation and other
miscreant's gang. They were being assisted in illegal trade by Pankaj
Kumar Singh. Avinash Kumar Sharma @ Chunnu further informed that
in the month of January 2020 Sanjay Kumar Singh who works as
contractor in Kharsawan, and on the request of Sanjay Kumar Singh they
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provided 250 cartridges of Insas rifle to Moshahid for which Moshahid
had paid Rs.1,75,000/ to them. Recently they had provided arms to
Vishal Mishra who kept the said arms in his house which can be
recovered. He also admitted that he and Rishi Kumar (appellant herein)
through unknown persons had arranged 450 cartridges for supply to
Aman Sao. But due to non-communication from side of Aman Sao they
hide 450 cartridges under Ormanjhi police station near Sheikh Bhikhari
Samadhi Asthal, which can also be recovered.
6. Accordingly, informant recorded confessional statement of
Avinash Kumar Sharma @ Chunnu and his team alongwith members of
Imamganj PS had gone to certify this information to village Chuwabar
where officer in-charge Imamganj raided house of Vishal Mishra from
where one country made loaded pistol was recovered for which
Imamganj PS case no 183/2021 dated 13.11.2021 under section 25(1- b)
a/26 of Arms Act was registered. The team further proceeded with
Avinash Kumar Sharma @ Chunnu to Salimpur from Imamganj police
station where they received cooperation from Salimpur police. Team
raided house of present appellant at village Benipur.
7. The appellant Rishi Kumar was found in his house who disclosed
that he, Avinash Kumar Sharma @ Chunnu and Pankaj Kumar are
supplying arms and ammunition to CPI Maoist and criminal gang. Rishi
Kumar also accepted that in the month of January 2020, 200 cartridges
of Insas rifle at the rate of Rupees 700/- per cartridge was supplied to
Sanjay Kumar Singh, who further supplied the same to MCC members
through Moshahid Khan after taking Rs.175000/-(One lakh seventy-five
thousand). He also admitted that he and Avinash Kumar Sharma @
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Chunnu through one unknown person was going to supply 450 cartridges
to Aman Sao, since Aman Sao did not reply, the cartridges were hide
near Sheikh Bhikhari Samadhi Asthal which can be recovered.
8. Accordingly, police team and STF proceeded from Salimpur. At
about 8 AM, they reached Chutupalu Sheikh Bhikhari Samadhi Asthal,
on 14.11.2021, informant did not find any independent witness there, in
presence of police witnesses, ATS Team recovered one soil colour bag
marked "double Pari" Egmark branch Kachhi Ghani Sarso tel (mustard
oil) and on bottom purchaser Sri Shakun Oil limited Brij Industrial area
Bharatpur Rajasthan mobile no 94xxxx9397 written, was taken out. On
search 450 piece of 5.56 mm cartridge was recovered, out of which KF13
5.56 mm written 135 live cartridges, KF 04 5.56 mm written four live
cartridges, KF 06 5.56 written two live cartridges and of V 5.56 mm
written 175 piece of live cartridge, OF V 12 5.56 mm written 124 live
cartridge, OF V 10 5.56 mm written 9 piece of live cartridge, OF V 5
5.56 mm written one piece of live cartridge and one Samsung Galaxy
mobile J600 G/DS 64 GB of Avinash Kumar Sharma @ Chunnu with
SIM NO 9472348219 was seized. Accordingly, seizure list was prepared,
copy of seizure list was supplied to witnesses, accused persons Avinash
Kumar Sharma @ Chunnu and Rishi Kumar (appellant herein).
9. Accordingly, FIR being A.T.S. Ranchi P.S. Case No. 01/2021,
dated 14.11.2021 was registered under Sections 120B of the Indian Penal
Code(IPC), Section 25(1-b), 26, and 35 of the Arms Act, Section 17 of
the CLA and Section 13, 19, 20 and 21 of UA(P) Act against Avinash
Kumar @ Chunnu Sharma (A-1), present appellant Rishi Kumar(A-2),
Pankaj Kumar Singh (A-3), Arun Kumar Singh @ Fauji (A-5) Sanjay
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Kumar Singh(A-11) and Moshadid Khan (A-12). Accordingly, present
appellant was arrested on 14.11.2021.
10. The Ministry of Home Affairs (MHA), Government of India, in
view of the gravity of the offence and its cross border and international
ramification, issued orders in exercise of power vested under Section
6(5) read with section 8 of the NIA Act 2008 and directed the NIA to
take up the investigation of the aforesaid case.
11. On the direction of the Ministry of Home Affairs, NIA re-
registered the case being NIA Case no 04/2021/NIA-RNC dated
09.12.2021 under section 120B of IPC Section 25(1-B) (a), 26, and 35 of
the Arms Act, Section 17 of the CLA and Section 13, 19, 20 and 21 of
UA(P) Act 1967 against the other accused persons including present
appellant Rishi Kumar(A-2).
12. In consequences of the aforesaid, the present appellant had
preferred bail application being MCA No. 1049 of 2022 but the same had
been rejected by the learned special Judge, thereafter the present
appellant moved before this Court by way of filing Cr. Appeal (DB)
No.1356 of 2022 for grant of bail but the same was also dismissed as
withdrawn vide order dated 22.01.2024 passed by this Court.
13. Thereafter, again the appellant has preferred an application for
bail being Misc. Criminal Application No.1503 of 2024 before the
Special Judge NIA Ranchi, but the same was rejected by the learned trial
Court vide order dated 10.06.2024 against which the instant appeal has
been preferred by the appellant.
Submissions by the learned Senior Counsel for the Appellant:
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14. Learned senior counsel for the appellant has assailed the
impugned order, by which the prayer for bail of the appellant has been
rejected, on the following grounds:
(i) There is no specific attributability of the appellant in
commission of offence said to be committed under the Schedule
offence as per the allegation leveled in the FIR and nothing
substantial has come in course of investigation against the
appellant in the charge-sheet also.
(ii) The name of the applicant has come in the present case on
his own as well as the confessional statement of the co-accused
persons before the police which has no evidentiary value in the
eyes of law and save and except the same, there is no material
available on record to connect the appellant with the alleged
offence.
(iii) It has been submitted that that from perusal of chargesheet,
it would be evident that save and except the confessional statement
of co-accused persons nothing has come so as to connect the
complicity of the appellant in the alleged commission of crime or
even involvement in conspiracy said to attract the offence under
the Schedule offences.
(iv) Ground has been taken about the period of custody, as also
there is no likelihood of trial to be concluded at an early date and
hence by taking into consideration the said fact, submission has
been made that the impugned order may be interfered with.
(v) The appellant is languishing in custody since 14.11.2021
in a case where the charge has already been framed on 21.02.2023
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and out of 152 charge-sheeted witnesses only 13 prosecution
witnesses have been examined.
(vi) 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.
(vii) The learned court 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
(viii) It has been submitted that in the charge-sheet, it is alleged
that the appellant was closely associated with Accused No.1, 3, 5,
11 and 12. It has been alleged that in the year 2020, the appellant
had procured 200 live ammunitions from Accused No.3 and
knowingly passed the same to Accused No.11. Further, Accused
No.11 had supplied the same to armed cadres of CPI (extremist
group). It has also been alleged that the appellant has also
conducted meeting with Zonal Commander of CPI and he came in
contact with Accused No.10 and as per his direction, he had
procured 450 live ammunitions from Accused No.5 through
Accused No.3 and above ammunitions were seized on the pointing
out of accused persons and they were also trying to arrange
ammunition of AK-47 Rifle and hand-grenade for the gang of
Accused No.10 and appellant has also pointed the place where he
had handed over the live ammunitions to the name accused A-12.
But on record there is no evidence available to substantiate the
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aforesaid facts as such the appellant has no concern either with any
extremist organization or with the seized articles.
(ix) The co-accused persons, namely, Kamendra Singh has
been granted bail vide order dated 13.10.2022 passed in Cr.
Appeal (DB) No.611 of 2022 by a co-ordinate Bench of this Court
and another co-accused Hirlal Guma Singh Ucchwara, Shivlal
Dhawan Singh Chouhan @ Shivlal Chouhan and Kumar Gurulal
Uchware have also been granted the privilege of bail vide order
dated 14.09.2023 passed in Cr. Appeal (DB) No.752 of 2022 by a
co-ordinate Bench of this Court and the case of the present
appellant is based on the similar footing as of the aforesaid co-
accused person.
(x) Further the other co-accused person namely Sanjay Kumar
@ Sanjay Kumar Singh has already been granted bail by the co-
ordinate Bench of this Court in Cr. Appeal (DB) No. 533 of 2022
vide order dated 12.09.2022, as such, the present appellant may be
granted bail on the basis of parity also.
15. Learned senior counsel for the appellant, on the aforesaid
premise, has submitted that the learned trial Court ought to have
considered the aforesaid aspect of the matter, while considering the
prayer for regular bail, but having not been considered, therefore, the
impugned order needs to be interfered with.
Submissions by the learned counsel for the NIA:
16. While on the other hand, Mr. Amit Kumar Das, learned counsel
appearing for the National Investigating Agency (NIA) has defended the
impugned order by taking following grounds:
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(i) Learned counsel for the NIA has contended that on earlier
occasion prayer for bail of the present appellant was dismissed as
withdrawn vide order dated 22.01.2024 passed in Cr. Appeal (DB)
No.1356 of 2022 by this Court.
(ii) There is specific attributability against the appellant, as
would be evident from various paragraphs of the charge-sheet
particularly i.e., paragraph nos. 17.7.02.
(iii) One of the co-accused persons namely, Avinash Kumar @
Chunnu Sharma to whom the appellant was involved in supplying
arms and ammunitions, his prayer for bail has been rejected vide
order dated 17.01.2023 passed by the co-ordinate Bench of this
Court in Cr. Appeal (DB) No. 1120 of 2022.
(iv) So far as the issue of incarceration and period which will
be taken into the examination of the witnesses is concerned, 152
in numbers have submitted that at this stage only 13 prosecution
witnesses have been examined and, as such, it is not applicable to
come to a decision with respect to the pruning of witnesses since
so many things is to be assessed before taking decision of pruning
in the matter of the present case where the nature of the offence is
serious, but so far as the pruning of witnesses is concerned, it can
only be done after examination of at least 20 prosecution
witnesses.
(v) Since 13 witnesses have already been examined and the
allegation against the present appellant is serious in nature which
is pertaining to the supply of arms and further the appeal
preferred by the co-accused persons namely Pankaj Kumar Singh
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the appellant in Cr. Appeal (DB) No.596 of 2024 and Arun Kumar
Singh @ Fauji the appellant in Cr. Appeal (DB) No.596 of 2024
has already been rejected by the co-ordinate Bench vide order
dated 04.12.2024 and 13.02.2024 respectively, hence, merely
non-conclusion of the trial cannot be only ground based upon the
privilege of bail is to be granted without taking into consideration
the issue of national security and applicability of section 43 D(5)
of the Act 1967.
17. Mr. Das, learned counsel for the respondent-NIA based upon
the aforesaid grounds has submitted that since the nature of allegation
leveled against the appellant is very grave and bail of identically placed
accused persons to whom the appellant used to supply arms have already
been rejected, therefore, the present appeal is also fit to be dismissed.
Analysis
18. 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 which is available on the record.
19. 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.
20. 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
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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.
21. 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.
22. 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.
23. 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.
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24. 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.
25. The "terrorist act" has been defined under Section 2(k) has the
meaning assigned to it in Section 15. Section 15 contains the activities
which will be treated to be a "terrorist act". Section 15 reads as under:
"15. Terrorist act.--4(1) Whoever does any act with intent to
threaten or likely to threaten the unity, integrity, security, economic
security, or sovereignty of India or with intent to strike terror or
likely to strike terror in the people or any section of the people in
India or in any foreign country,--
(a) by using bombs, dynamite or other explosive substances or
inflammable substances or firearms or other lethal weapons or
poisonous or noxious gases or other chemicals or by any other
substances (whether biological radioactive, nuclear or otherwise) of
a hazardous nature or by any other means of whatever nature to
cause or likely to cause--
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life of the
community in India or in any foreign country; or
(iiia) damage to, the monetary stability of India by way of production
or smuggling or circulation of high quality counterfeit Indian paper
currency, coin or of any other material; or]
(iv) damage or destruction of any property in India or in a foreign
country used or intended to be used for the defence of India or in
connection with any other purposes of the Government of India, any
State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal
force or attempts to do so or causes death of any public functionary
or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or
injure such person or does any other act in order to compel the
Government of India, any State Government or the Government of a
foreign country or an international or inter-governmental
organisation or any other person to do or abstain from doing any
act; or commits a terrorist act.
[Explanation.--For the purpose of this sub-section,--
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(a) "public functionary" means the constitutional authorities or any
other functionary notified in the Official Gazette by the Central
Government as public functionary;
(b) "high quality counterfeit Indian currency" means the counterfeit
currency as may be declared after examination by an authorised or
notified forensic authority that such currency imitates or
compromises with the key security features as specified in the Third
Schedule.]
(2) 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.
26. As per the provision of Section 15, whoever has acted with intent
to threaten or likely to threaten the unity, integrity, security, economic
security, or sovereignty of India or with intent to strike terror or likely to
strike terror in the people or any section of the people in India or in any
foreign country would be covered under the definition of "terrorist act".
This provision, therefore, stipulates that any activity with an intent to
strike terror or likely to strike terror will come under the fold of terrorist
act if done to threaten the unity, integrity, security, sovereignty of India
or economic security, which has been inserted by way of Act 3 of 2013
with effect from 01.02.2013.
27. Section 17 provides punishment for raising funds for terrorist act
which reads as under :
"17. Punishment for raising funds for terrorist act.--Whoever, in
India or in a foreign country, directly or indirectly, raises or
provides funds or collects funds, whether from a legitimate or
illegitimate source, from any person or persons or attempts to
provide to, or raises or collects funds for any person or persons,
knowing that such funds are likely to be used, in full or in part by
such person or persons or by a terrorist organisation or by a
terrorist gang or by an individual terrorist to commit a terrorist act,
notwithstanding whether such funds were actually used or not for
commission of such act, shall be punishable with imprisonment for
a term which shall not be less than five years but which may extend
to imprisonment for life, and shall also be liable to fine.
Explanation.--For the purpose of this section,--
(a) participating, organising or directing in any of the acts stated
therein shall constitute an offence;
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(b) raising funds shall include raising or collecting or providing
funds through production or smuggling or circulation of high quality
counterfeit Indian currency; and
(c) raising or collecting or providing funds, in any manner for the
benefit of, or, to an individual terrorist, terrorist gang or terrorist
organisation for the purpose not specifically covered under section
15 shall also be construed as an offence.
28. It is evident from the contents of Section 17 of the Act, 1967 that
whoever, in India or in a foreign country, directly or indirectly, raises or
provides funds or collects funds, whether from a legitimate or
illegitimate source, from any person or persons or attempts to provide to,
or raises or collects funds for any person or persons, knowing that such
funds are likely to be used, in full or in part by such person or persons or
by a terrorist organisation or by a terrorist gang or by an individual
terrorist to commit a terrorist act, notwithstanding whether such funds
were actually used or not for commission of such act, the same would be
covered under the aforesaid provision. Meaning thereby, raising of funds
directly or indirectly to commit a terrorist act by a terrorist organization
or by terrorist gang or by an individual terrorist, irrespective of the fact
whether this was actually used for commission of such act, would be
punishable under Section 17.
29. Sub-section (c) of Section 17 of the Act, 1967 enlarges the scope
of the terrorist act since the same provides that any act for the benefit of
an individual terrorist, terrorist gang or terrorist organisation even if not
specifically covered under Section 15 shall also be construed as an
offence.
30. 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
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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.
31. 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.
32. 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
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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 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...."
33. 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.
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34. Further, the Hon'ble Apex Court by setting out propounding the
law in the same case of National Investigation Agency v. Zahoor Ahmad
Shah Watali (supra), has observed that the elaborate examination or
dissection of the evidence is not required to be done at this stage and 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 stated offence or otherwise. For ready reference paragraph 24 and
25 of the aforesaid judgment is being quoted herein under:-
"24. A priori, the exercise to be undertaken by the Court at this
stage--of giving reasons for grant or non-grant of bail-- is markedly
different from discussing merits or demerits of the evidence. The
elaborate examination or dissection of the evidence is not required
to be done at this stage. 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 stated offence or otherwise.
25. From the analysis of the impugned judgment, it appears to us
that the High Court has ventured into an area of examining the
merits and demerits of the evidence. For, it noted that the evidence
in the form of statements of witnesses under Section 161 are not
admissible. Further, the documents pressed into service by the
investigating agency were not admissible in evidence. It also noted
that it was unlikely that the document had been recovered from the
residence of Ghulam Mohammad Bhatt till 16-8-2017 (para 61 of
the impugned judgment). Similarly, the approach of the High Court
in completely discarding the statements of the protected witnesses
recorded under Section 164 CrPC, on the specious ground that the
same was kept in a sealed cover and was not even perused by the
Designated Court and also because reference to such statements
having been recorded was not found in the charge-sheet already
filed against the respondent is, in our opinion, in complete disregard
of the duty of the Court to record its opinion that the accusation
made against the accused concerned is prima facie true or
otherwise. That 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 case diary and including the charge-sheet (report
under Section 173 Cr.P.C.) and other material gathered by the
investigating agency during investigation."
35. 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
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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."
36. 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.
37. The Hon'ble Apex Court in the case of Gurwinder Singh Vs
State of Punjab and Another reported in 2024 SCC OnLine SC 109
while taking in to consideration of the judgment as rendered in the
National Investigation Agency v. Zahoor Ahmad Shah Watali (supra)
has observed that, the proviso to Sub-section (5) of Section 43D of Act
1967, 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
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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.
38. 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.
39. 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.
40. 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
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application in accordance with the 'tripod test' (flight risk, influencing
witnesses, tampering with evidence).
41. For ready reference following paragraphs of the aforesaid
Judgment are being quoted herein 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 scrutinising 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--"
42. 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
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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.
43. The Hon'ble Apex Court in the aforesaid judgment after textual
reading of Section 43D(5) 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')?"
44. 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.
45. It is apparent from record that Special (NIA) case no. 4/2021
was initially instituted at ATS police station Ranchi case no 01/2021
dated 14.11.2021, Ranchi Jharkhand under section 120B of I.P.C.,
section 17 of CLA Act, section 25(1-b)A/26/35 of Arms Act and sections
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13, 19, 20, 21 of the UA(P) Act, 1967 against six named accused persons
and one unknown army personnel, on the typed report of sub inspector
Vishal Pandey of ATS on 14.11.2021.
46. Informant had stated that while investigation of the Tandwa PS
case no. 132/2021 he came to know that Avinash Kumar and few other
persons are supplying arms and ammunitions to miscreants and extremist
groups. During inquiry Avinash Kumar Sharma @ Chunnu disclosed that
he along with appellant namely Rishi Kumar used to provide arms and
ammunitions to members of CPI Maoist organisation and other
miscreant's gang.
47. They were being assisted in illegal trade by Pankaj Kumar Singh.
Avinash Kumar had also admitted that he and Rishi Kumar through
unknown persons had arranged 450 cartridges for supply to Aman Sao.
But due to non-communication from side of Aman Sao they hide 450
cartridges under Ormanjhi police station near Sheikh Bhikhari Samadhi
Asthal, which can also be recovered.
48. Accordingly, house of Rishi Kumar was raided and he was found
in his house and had disclosed that he, Avinash Kumar Sharma @
Chunnu and Pankaj Kumar were supplying arms and ammunition to CPI
Maoist and criminal gang. He also admitted that he and Avinash Kumar
Sharma @ Chunnu through one unknown person was going to supply
450 cartridges to Aman Sao, since Aman Sao did not reply. The
cartridges were hide near Sheikh Bhikhari Samadhi Asthal which can be
recovered.
49. On search 450 piece of 5.56 mm cartridge was recovered,and
accordingly seizure list was prepared and FIR being ATS police station
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Ranchi, case no 01/2021 has been instituted and the present appellant
was arrested on 14.11.2021.
50. Accordingly in compliance to the Government of India, Ministry
of Home Affairs, NIA re-registered case as RC 04/2021/NIA/RNC dated
9.12.2021, under section 120B of IPC, section 17 of the CLA Act, section
25(1-b)A, 26, 35 of the Arms Act and section 13, 19, 20, 21 of the UA(P)
Act 1967 against Avinash Kumar Sharma @ Chunnu, Pankaj Kumar
Singh, Rishi Kumar, Sanjay Kumar Singh, Mujahid Khan, Aman Sahu
and one unknown accused.
51. After completion of investigation against the appellant-Rishi
Kumar and others, NIA has submitted chargesheet against him under
section 120B of IPC(substantively), section 25 (1AA), 26 and 29 of Arms
Act and section 13, 18, 20 and 39 of the UA(P) Act after obtaining
prosecution sanction from Ministry of Home affairs u/s 45(1) of UA(P)
Act vide memo no F. No.11011/73/2021/2021/ NIA dated 3.12.2021
Govt of India Ministry of Home Affairs CTCR division dated 105.2022
and prosecution sanction u/s 120B of IPC(substantively) , section 25
(1AA), 26 and 29 of Arms Act and section 13, 18, 20 and 39 of the UA(P)
Act against present appellant Rishi Kumar A-2.
52. It has been alleged that during investigation, NIA collected
prosecutable evidence against appellant that he was closely associated
with charge-sheeted accused A-11 Sanjay Kumar Singh and A-12
Maharaj Parmanik. He supplied ammunitions of different calibers to the
armed cadres of CPI Maoist on the direction/ demand of A-11 and A-12.
53. In consequences of the aforesaid, the present appellant had
preferred bail application being MCA No. 1049 of 2022 but the same had
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been rejected by the learned special Judge, thereafter the present
appellant moved before this Court by way of filing Cr. Appeal (DB)
No.1356 of 2022 for grant of bail but the same was also dismissed as
withdrawn vide order dated 22.01.2024. The appellant has again
preferred an application for bail being Misc. Criminal Application
No.1503 of 2024 before the Special Judge NIA Ranchi, but the same
was rejected by the learned trial Court vide order dated 10.06.2024
against which the instant appeal has been preferred by the appellant.
54. From perusal of record, it is evident that offences established
against appellant/accused in the charge sheet has been mentioned in
paragraph nos. 17.6.5 and 17.7.02 which read as under:
"17.6.5 Collection of CDR, IPDR & its analysis-
During the investigation CDR, & IPDRs data pertaining to accused
persons/suspects were collected from the respective service
providers. Analysis of CDR of A-5 and A-9 established that both
were in contact with each other. A-5 & A-9 were also exchanging
calls during July 2021. Apart from thar Call ID location of the
mobile numbers of A-5 & A-9 were also found in Firozpur, Punjab,
which corroborated the facts that both the above accused had a
meeting at Firozpur, for taking the delivery of ammunitions during
July, 2021. Analysis of mobile number of A-3 and A-5 established
that they were in contact during the relevant period of delivery.
Analysis of the contact numbers of A-2, A-3 and A-4 established that
they were closely associated. It is also established that A-1 was in
contact with A-2 and A-2 was in contact with A-11 and A-12.
17.7.02. Role and offences established against accused Rishi
Kumar (A-2):
Role of the petitioner Rishi Kumar A-2 has been mentioned in para
17.5.2 of the chargesheet. During investigation it has been brought
on record that A-2 Rishi Kumar was closely associated with A-1
Avinash Kumar Sharma @ Chunnu, A-3 Pankaj Kumar Singh A-5
Arun Kumar Singh A-11 Dr Sanjay Kumar A-12 Maharaj Pramanik.
During year 2020 A-2 had procured 200 live ammunitions of 5.56
MM from A-3 and knowingly provided the same to accused A-11. A-
2 had also conducted meeting with Maharaj Pramanik then Zonal
commander of CPI. Apart from that accused A-2 came in contact
with A10 through A-1. As per direction of A-10, A-1 and A-2 had
procured 450 live ammunitions from A-5 through A-3. The above
ammunitions were concealed near a tree at Sheikh Bhikhari
Memorial Saheed Sthal. Chutupalu Ghati Ormanjhi Ranchi
Jharkhand which was later on recovered and seized on the pointing
of accused persons A-1, A-2. Accused petitioner A-2 and accused A-
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3 were also trying to arrange ammunition of AK47 rifle and hand
grenade for the gang of A-10. Accused A-2 also pointed out the
places where he had handed over the live ammunition to the FIR
named accused A-12.
Thereby, A-2 committed offences u/s 120 B of the IPC
(Substantively), Section 411 IPC Section 25 (1AA), 26 and 29 of
Arms Act, Sections 13, 18, 20 & 39 of the UA (P) Act 1967 (as
amended)."
55. It appears from the record that the name of present appellant has
come on the basis of his own confessional statement as well as
confessional statement of the co-accused persons. In his confessional
Rishi Kumar accepted that people of Maharashtra also used to supply
arms and ammunitions to the members of CPI Maoist gang. On the
confessional statement of Avinash Kumar Sharma @ Chunnu and the
present appellant, Pankaj Kumar Singh and other accused persons were
arrested and they further confessed that they got proximity with Aman
Sahu gang.
56. It has come in investigation that the accused Avinash Kumar @
Chunnu, Pankaj Kumar, Mujahid Khan including present appellant
namely Rishi Kumar, being members of the gang involved in unlawful
activities, have criminally conspired to supply arms and ammunitions to
the cadres of the Communist party of India (Maoists), and to the
members of the terrorist gang of Aman Sahu. The arms and ammunitions
so provided are being used to execute terrorist attacks on the security
forces by the Maoists. The members of the Aman Sahu gang are using
the said arms and ammunitions to fire at different places and injure
persons for the purpose of extortion.
57. It is revealed in the investigation that Mujahid khan supplied 250
live rounds (ammunition) of INSAS to the Maoists. For procuring these
rounds Mujahid Khan paid Rs. 1,75,000/- to the accused/appellant Rishi
Kumar. The said accused persons were procuring the arms and
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ammunitions illegally and were storing them at different locations, for
their onward supplies.
58. As per record 450 rounds of 5.56 MM ammunitions were
recovered by the police near the Sheikh Bhikhri Memorial of Chutupalu
Ghati on the pointing out of the accused/ appellant Rishi Kumar and co-
accused Avinash Kumar.
59. From para 17.6.7 of the charge-sheet it is evident that the
specimen handwriting of the accused A-9 and specimen voice sample of
accused Avinash Kumar A-1 and Rishi Kumar A-2 established that
incriminating documents were in the handwriting of the accused A-9
which was obtained. Documents were related to pilferage of
ammunitions from BSF magazine. Specimen handwriting was obtained
and further on 25.4.2022 the same was sent to CFSL Kolkata for forensic
examination in which incriminating voice sample of A-1 and A-2 were
obtained and further with the prior order of the NIA Special Court Ranchi
on 21.4.2022 the specimen voice sample was obtained by the experts of
SFSL, Ranchi and the same was forwarded to CFSL, New Delhi for
matching with question voice which is still pending. Para 17.6.10
mentions seizure of arms and ammunitions shows that on the disclosure
of the arrested accused persons A-1 A-2, A-5, A-6, A-7 A-8 and A-9
huge number of arms and ammunition were recovered.
60. The case has also been supported by the deposition of
independent witnesses cited as protected witnesses whose statements
were recorded under section 161 and 164 of Cr P.C.
61. Therefore, prima facie it appears that there is direct and specific
allegation against the appellant which is serious in nature wherein it has
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been stated that appellant along with other co-accused used to supply
arms and ammunition to CPI Maoist cadre and criminal gang after
receiving money which comes under purview of heinous crime, crime
against unity, its integrity, sovereignty and internal security of the
country.
62. Thus, prima-facie appears from the content of the charge-sheet
that there is prosecutable evidence against the appellant which is
supported by documentary as well as oral evidence of the witnesses of
chargesheet.
63. Further, the learned counsel for the appellant has emphatically
contended that if the period of custody of the appellant will be taken into
consideration, same is in the teeth of Article 21 of the Constitution of
India, hence appellant may enlarge to privilege of bail.
64. In the context of aforesaid this Court is of view that there is no
quarrel about the settled position of law that Article 21 of the
Constitution of India provides for protecting the fundamental right of
liberty but that is to be assessed by carving out the balance in enforcing
the law and order and merely because the custody is there, the availability
of other cogent evidence which prima facie indicates the involvement of
accused/appellant in supply of Arms to the proscribed organization
cannot be ignored.
65. Therefore, mere delay in trial pertaining to grave offences as one
involved in the instant case cannot be used as a ground to grant bail
reference in this regard may be made to the judgment rendered by the
Hon'ble Apex Court in the case of Gurwinder Singh v. State of Punjab,
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(supra). For ready reference the relevant paragraph is being quoted as
under:
46. As already discussed, the material available on record indicates
the involvement of the appellant in furtherance of terrorist activities
backed by members of banned terrorist organisation involving
exchange of large quantum of money through different channels
which needs to be deciphered and therefore in such a scenario if the
appellant is released on bail there is every likelihood that he will
influence the key witnesses of the case which might hamper the
process of justice. Therefore, mere delay in trial pertaining to grave
offences as one involved in the instant case cannot be used as a
ground to grant bail. Hence, the aforesaid argument on behalf of
the appellant cannot be accepted.
66. In the instant case as we discussed herein above that prima facie
the culpability of the appellant/ accused has been established on the basis
investigation culminated in to charge-sheet and further the witnesses
have corroborated the prosecution case and further the trial of the instant
case is continuing wherein about 13 charge-sheeted witnesses have
already been examined.
67. So far, the issue of the delay in conclusion of the trial which has
been made a ground to release the appellant on bail is concerned, Mr.
Amit Kumar Das, the learned counsel appearing for the NIA has
submitted that a decision has been taken to prune the witnesses but the
same will only attain finality after examination of at least 20 prosecution
witnesses. It has also been submitted that the altogether 13 witnesses
have already been examined and all endeavours will be taken to conclude
the trial expeditiously, therefore taking into consideration the nature of
allegation as alleged against the present appellant which is pertaining to
the supply of arms procured from the Para Military personnel namely,
Arun Kumar Singh @ Fauji whose bail application has already been
rejected vide order dated 13.02.2024 passed in Cr. Appeal (DB) No.1280
of 2022 , hence, as per the mandate of the judgment rendered by the
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Hon'ble Apex Court in the case of Gurwinder Singh Vs State of Punjab
and Another (supra), merely the non-conclusion of the trial cannot be a
ground to enlarge the appellant on bail particularly taking into
consideration the issue of national security and seriousness of the alleged
commission of the crime.
Issue of parity
68. Now coming to the ground of parity. Law is well settled 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.
69. 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 vs.
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
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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
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he was armed with a wooden stick and on the ground that
Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A13)
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."
70. The Hon'ble Apex Court in Tarun Kumar vs. Assistant Director
Directorate of Enforcement, (2023) SCC OnLine SC 1486 wherein at
paragraph-18, it has been 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.
71. This Court in order to come to the conclusion as to whether the
case of the present appellant is at par with Sanjay Kumar Singh and
Kamendra Singh who has been granted bail by the co-ordinate Bench of
this Court as referred herein above, needs to consider the allegation as
has been surfaced in course of investigation as available in the charge-
sheet for the purpose of clarification regarding the commission of the Act
by Sanjay Kumar Singh Kamendra Singh and the present appellant.
72. This Court deems it fit and proper to go through the paragraphs
of the said orders by which Sanjay Kumar Singh and Kamendra Singh
has been granted bail, so as to come to the conclusion that whether the
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accountability of Sanjay Kumar Singh and Kamendra Singh in
commission of alleged offence is at par with the case of present appellant
herein. The aforesaid orders granting bail are available on record.
73. On comparative assessment of the allegation as per the material
available on record it is evident that against the said Kamendra Singh the
NIA has submitted the charge-sheet for the offence under Sections 120B
of IPC (substantively) and under section 25 (1B) (A), 26 and 29 of Arms
Act only but against the present appellant the charge-sheet for the offence
under Sections section 120B of IPC (substantively), section 25 (1AA),
26 and 29 of Arms Act and section 13, 18, 20 and 39 of the UA(P) Act
has been submitted. Thus, it is evident that against the co-accused
Kamendra Singh charge-sheet for the offence under the Act 1967 has
also not been submitted.
74. So far as accused Sanjay Kumar @Sanjay Kumar Singh is
concerned the co-ordinate Bench has directed him to enlarge on bail on
the basis of submission of charge-sheet without following the due
procedure of law as stipulated under the statute which would be evident
from the order dated 12.09.2022. Thus, from the order dated 12.09.2022
by which the said co-accused has been directed to be enlarge on bail it is
evident that the co-ordinate Bench of this Court had not gone to
culpability of the said co-accused in the alleged commission of crime,
rather the said co-accused has been enlarged on bail due to non-
submission of the charge-sheet by the prosecuting agency within the
stipulated time frame as prescribed under the Act, 1967.
75. So far parity of the present appellant with the co-accused namely
Hirlal Guma Singh Ucchwara, Shivlal Dhawan Singh Chouhan @
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Shivlal Chouhan and Kumar Gurulal Uchware is concerned, against
them charge-sheet has not been submitted under the Act 1967. But
against the present appellant charge-sheet has been submitted under
Section 120B of IPC (substantively), Sections 25 (1AA), 26 and 29 of
Arms Act and Sections 13, 18, 20 and 39 of the UA(P) Act.
76. Thus, it is evident that there is difference between the culpability
of the present appellant with the said co-accused namely Hirlal Guma
Singh Ucchwara, Shivlal Dhawan Singh Chouhan @ Shivlal Chouhan
and Kumar Gurulal Uchware, as such parity cannot be claimed against
them.
77. Further as per discussion in preceding paragraph it has come in
the investigation that the present appellant was very much active and
instrumental in procurement and supply of the Arms and ammunition to
the proscribed organization and other criminal gang. Therefore, it is
evident from the discussion as made hereinabove as per the allegation
the case of the present appellant is different to that of the said co-accused
persons against whom the parity is claimed.
78. Thus, on the basis of the aforesaid discussion as made
hereinabove, it appears that during investigation it has come that there is
direct and specific allegation against appellant as he appears to have
provided the arms and ammunition to the proscribed organization and
other criminal gang.
79. Further, the charge sheet reveals that the appellant/accused being
the supplier of the arms and ammunition to the CPI (Maoist), was an
associate of other accused persons, hence considering the allegation
against this appellant which is of serious nature and there are evidences
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collected during investigation to prove the said charge as has been
indicated herein above.
80. This Court, on the basis of the facts and coming to the settled
position of law as referred hereinabove and the judgment rendered by the
Hon'ble Apex Court in the case of Zahoor Ahmad Shah Watali (supra)
and of Gurwinder Singh Vs State of Punjab and Another (supra), is of
the view that it cannot be said that the allegation levelled against the
appellant is prima facie untrue.
81. Even on the ground of parity as per the discussion made
hereinabove, the same on the basis of the role/involvement of the present
appellant in the commission of crime in comparison to that of the other
co-accused, is quite different.
82. As such this Court is of the view by going through imputation as
has found in course of investigation that the complicity of the appellant
in the alleged crime cannot be denied. It is thus evident that this Court on
the aforesaid allegation cannot come to the conclusion that whatever has
come in course of investigation against the appellant is said to be prima
facie untrue rather this Court is of the view that the allegations are
sufficient to come to the conclusion that the allegation is prima facie true.
83. Further, it has been submitted by learned counsel appearing for
the NIA that all endeavours will be taken to conclude the trial
expeditiously, and further the protected witnesses are to be examined and
therefore, efforts will be taken for the examination of the said witnesses
on day-to-day basis.
84. Therefore, this Court is of the view that it will not to be just and
proper to interfere with the impugned order. This Court is also of the
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view while coming to the aforesaid conclusion that as per the chargesheet
the specific attributability has been casted upon the appellant regarding
the commission of offence said to attract the criminal offence under
UA(P) Act.
85. In view of the foregoing discussions, we find no illegality in the
impugned order dated 10.06.2024 passed in Misc. Criminal Application
No. 1503 of 2024 by learned Additional Judicial Commissioner-XVI-
cum Special Judge, NIA, Ranchi in connection with Special NIA Case
No. 04/2021 (RC Case No RC 04/2021/NIA/RNC.) arising out of ATS
P.S. Case No. 01 of 2021 as such, we are of the view that the instant
appeal lacks merit, hence, the same is hereby dismissed.
86. We make it clear that the prima facie findings recorded in this
judgment are only for considering the prayer for bail of the appellant.
The reasons are confined to the prayer for bail of the appellant. The same
will have no bearing on the trial of the case of the appellant and co-
accused.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
Sudhir
AFR
