Patna High Court
Abid K. M vs The Union Of India Through National ... on 18 April, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.875 of 2024
Arising Out of PS. Case No.-827 Year-2022 Thana- PHULWARISHARIF District- Patna
======================================================
Abid K. M., S/o K Kader Abbu, R/o Razi Manzil, JEL Road, Post -
Kunjathur, P.S. - Manjeshwar, Distt. - Kasargod, Kerala.
... ... Appellant
Versus
The Union of India through National Investigation Agency
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 949 of 2024
Arising Out of PS. Case No.-31 Year-2022 Thana- NIA District- Patna
======================================================
Abdul Rafeek M., Son of Mohammad Byari, R/o- Mannapu House, Vill+Post-
IRDE Puttur Taluk, PS- Puttur Rural, Dist- Dakshin Kannada Karnataka.
... ... Appellant
Versus
The Union of India through National Investigation Agency
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 875 of 2024)
For the Appellant/s : Mr. Kundan Kumar Ojha, Advocate
For the Respondent/s : Mr. Dr. K.N. Singh (ASG)
Mr. Arvind Kumar, Spl. PP, NIA
Mr. Shivaditya Dhari Sinha, Advocate
Mr. Paritosh Parimal, Advocate
(In CRIMINAL APPEAL (DB) No. 949 of 2024)
For the Appellant/s : Mr. Kundan Kumar Ojha, Advocate
For the Respondent/s : Mr. Dr. Krishna Nandan Singh (ASG)
Mr. Arvind Kumar, Spl. PP, NIA
Mr. Shivaditya Dhari Sinha, Advocate
Mr. Paritosh Parimal, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE S. B. PD. SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 18-04-2025
Heard learned counsel for the appellants and learned
counsel for the National Investigating Agency (in short 'NIA').
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
2/21
2. These two appeals are arising out of the common
order dated 28.06.2024 (hereinafter called 'the impugned orders')
passed by learned Special Judge, NIA, Patna, Bihar (hereinafter
called the 'learned trial court') in Special Case No. 07 of
2022/R.C. No. 31 of 2022.
3. By the impugned orders, the learned trial court has
been pleased to reject the prayer for bail of the appellants during
the ongoing trial. Both the appellants are aggrieved by and
dissatisfied with the orders of the learned trial court.
4. In order to appreciate the matter, it would be
necessary to take note of the prosecution case.
Prosecution Case
5. The prosecution case is based on a self-written report
dated 12.07.2022 of Akrar Ahmed Khan, the Inspector of Police-
cum-Officer-in-Charge of Phulwarisharif Police Station, Patna. In
the written report, the informant alleged that on 11.07.2022, at
about 7:30 PM, he got an information that some miscreants are
planning to do some occurrence during the proposed Patna visit of
the Prime Minister of India, they are doing training for a fortnight
for this purpose. On this information, the Officer-in-Charge of
Phulwarisharif Police Station brought it to the notice of the senior
officers. The senior officers constituted a team of police officers
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
3/21
and with the said team, the Officer-in-Charge/informant reached
'Ahmed Palace' situated in Naya Tola Nahar under Phulwarisharif
Police Station. On reaching there and in course of verification, it
came to his notice that some unknown persons are holding meeting
on the second floor of the 'Ahmed Palace' during last two months
and visit of unknown persons are frequent there. The informant
came to know that during 6th-7th July also, a meeting had taken
place in which some doubtful people had come.
6. It is alleged that as the informant was conducting the
verification, in the meantime, Md. Jalaluddin and Athar Parvez,
who are the owner of 'Ahmed Palace', came there. In their
presence, in presence of two independent witnesses, when the
second floor of 'Ahmed Palace' was searched, in course of search
from a room, he found a literature, namely, 'India 2047 towards
Rule of Islamic India, Internal Document not for circulation'
which was in seven pages and there were five copies of the same.
In search, thirty pamphlets written in Urdu and twenty five
pamphlets written in Hindi of Popular Front of India, 20 February
2021, forty nine flags made of clothes, red, green and white
bearing blue colour star on the flag, booklets printed in Urdu were
found. The search team also found thirty chairs placed in the big
hall and on a table, photocopy of lease deed on a non-judicial
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
4/21
stamp paper, showing the name of house owner of Farhat Bano,
wife of Jalaluddin and the name of lessee as Athar Parvez, son of
Abdul Qayum Ansari was found. The house owner informed that
the second floor of the building was taken by Athar Parvez for
purpose of giving training and training was provided on 6-7 July
2022 in which people from other states had come and several
doubtful person had also received training there. Athar Parvez,
however, denied but when the police enquired from him in
presence of Jalaluddin and local people, he told them that he was
an active member of SIMI organization and after the SIMI
organization was banned and the members of the same were in jail,
he was providing them legal help.
7. He informed that at present he was District General
Secretary of SDPI party. He disclosed that the parcha, flags and
the booklets are of Popular Front of India (in short 'PFI'). At the
instance of the PFI, he is adding the former members of SIMI with
this party and is establishing a secret organization. He disclosed
that the main object of the organization is to take revenge against
the atrocities upon Muslims and whosoever makes comment or
abuses Islam religion, he is targeted and attacked. Recently, Nupur
Sharma had said wrong against the religion, against her steps are
being taken to take the revenge. For this reason, revenge had been
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
5/21
taken in Amravati in Maharashtra and Udaipur in Rajasthan. He
further disclosed that in this planning, other persons are also
actively participating with him. He named twenty five other
persons who were members of the PFI in different areas and were
conducting the activities of the PFI. He disclosed that there are
other people whom he identifies by face and all of them could
come and get training here and they are motivated to raise their
voice and unleash war against a particular community of the local
society.
The Officer-in-Charge conducted a raid in the house of Athar
Parvez in Mohalla, Gulistan from where a bag containing red,
green and white colour flags inscribed with a blue colour star on
the flag and copy of the lease deed were found. From the bag, the
documents known as India 2047 towards rule of Islamic India,
Internal document not for circulation and other documents were
also found. The contents of the documents India 2047 towards
Rule of Islamic India has been mentioned in the FIR which is
being reproduced as under:
"... Popular Front of India (PFI) is confident that even if
10% of total Muslim population rally behind it, PFI would
subjugate the coward majority community to their knees
and being back the glory of Islam in India.
External Help
In the scenario of full-fledged show down with the State,
apart from relying on ours trained PE cadres, we would
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
6/21
need held from friendly Islamic countries. In the last few
years, PFI has developed friendly relationship with
Turkey, a flag-bearer of Islam. Efforts are on to cultivate
reliable friendship in some other Islamic countries"
8. In course of investigation, the NIA carried out
searches in the premises of the accused and suspects in the State of
Bihar, Karnataka and Tamil Nadu. It is stated that from the house
search of accused Tausif Alam (A-6), one green colour notebook
"Divine" was found which revealed that the training was organized
to attain the "Total Muslim Empowerment". The seized document
revealed the methodology as "Cadre-cum-Mass Movement. The
NIA found that a criminal conspiracy was hatched with a malafide
intention to cause violence, acts of terror which were bound to
create an atmosphere of terror and insecurity, endangering the
unity and integrity of the nation.
9. As regards these two appellants, it is stated that they
were involved in channelizing the illegal funds. The appellants are
said to be the members of the syndicate who were acting with
hands in glove with other accused persons. These appellants were
chargesheeted in supplementary Chargesheet No. 1B/2023 dated
01.09.2023
filed under Sections 120B, 121, 121A and 123 of IPC
and Sections 10, 13, 17 and 18 of the UA(P) Act.
10. It is stated in paragraph '17.28' that suspicious
transactions in form of cash deposits were made from Md. Sinan
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
(A-31) and Abdul Rafeek M (one of the appellants) from the
Canara Bank, Panemangalore, Bantwal and Vittala Branches of
Dakshina Kannad District of Karnataka in the Canara Bank
Account No. 6342101000497 of Md. Sajjad Alam. The cash
amount less than Rs. 50,000/- were deposited in multiple
transactions to avoid generation of Suspicious Transaction Report
(STR). It is stated that Abdul Rafique M (A-34) and Abid K M (A-
35) were involved in channelizing the illegal funds to PFI from
United Arab Emirates and Saudi Arabia to various suspects in
India for committing terrorist acts.
11. In paragraph '17.30' of the charge-sheet, it is stated
that searches were conducted at several locations in Kasaragod
district of Kerala and Dakshina Kannada District of Karnataka on
05.03.2023. During searches, large number of incriminating
evidences were recovered and seized pertaining to huge illegal
transactions including to above-mentioned arraigned accused Md.
Sajjad Alam. Based on recoveries, on 06.03.2023, Md. Sinan (A-
31), Sarfaraz Nawaz (A-32), Iqbal (A-33) and Abdul Rafeek M (A-
34), all residents of Dakshina Kannada, Karnataka and Abid K M
(A-35), resident of Kasaragod, Kerala were arrested in this case.
12. It is stated that Md. Sajjad Alam was associated with
Chakiya unit of PFI along with Md. Yakub Khan @ Sultan @
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
Usman (A-27), FIR named accused Reyaj Moarif (A-4), Md.
Tanveer @ Md. Tanveer Barkati (A-28), Md. Belal @ Irshad (A-
30) and other members of PFI. Sajjad Alam had gone to Dubai in
the beginning of the year 2022 and since then he is still there. He
arranged illegal funds in Dubai and UAE and hatched criminal
conspiracy with Iqbal (A-33) and further forwarded the same from
Dubai to accused persons of District East Champaran, Bihar
through the arrested persons at Dakshina Kannada of Karnataka
and Kasaragod of Kerala. It is stated that these funds were further
used in extending unlawful activities of PFI even after the ban of
PFI by the Central Government. In paragraph '17.36' of the
charge-sheet, it is alleged that these appellants along with Md.
Sinan (A-31), Sarfaraz Nawaz (A-32) and Iqbal (A-33) used to
collect money from Md. Sajjad Alam in Dubai, UAE and send the
same to India through illegal channels. On instruction of Iqbal (A-
33), Sarfaraz Nawaz (A-32) and Abdul Rafiq M (A-34) collected
money from Abib K M (A-35) in India and deposited the same in
the account of Md. Sajjad Alam using credentials of Md. Sinan (A-
31).
13. The appellants have been chargesheeted for the
offences punishable under Sections 120B, 121, 121A and 123 of
IPC and Sections 10, 13, 17 and 18 of the UA(P) Act. Sanction for
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
prosecution under Section 196 CrPC and Section 45 (1) (i) of
UA(P) Act in respect of accused persons for the offences under the
relevant sections of the IPC and UA(P) Act as applicable has been
accorded by the Ministry of Home Affairs, Government of India
vide order dated 30.08.2023.
Submissions on behalf of the appellants
14. Learned counsel for the appellants have assailed the
impugned order of the learned trial court. It is submitted that the
appellants are not named in the FIR, however, their names are said
to have transpired in course of investigation.
15. Learned counsel submits that the allegations against
the appellants are that of channelizing transfer of illegal funds. The
submission is that the appellants are not members of PFI as alleged
by the prosecution agency. Regarding both the appellants, it is
stated that they are running a small welding shop at their local
market and they have no concern with any person in the State of
Bihar.
16. It is their statement that they have transferred total
Rs.40-50 thousand only using their account and UPI and such
transfers have been done by the appellants for the commission of
Rs. 100-500 for each transactions. They have stated that the
appellants have transferred such small amounts without knowing
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
the identity of the recipient, for their petty gain and without any
criminal intent.
17. Learned counsel submits that the appellants are not
even remotely connected with the PFI and mere allegation of
transferring amount without any corroborative evidence of using
the same for procuring arms and ammunition and achieving any
goal to commit terrorist act, does not attract any provision of the
UA(P) Act as defined under Section 2(1)(k) of the UA(P) Act. It is
submitted that they are rotting in jail since 06.03.2023.
18. Learned counsel further submits that in this case, this
Court has earlier rejected the prayer for bail of the co-accused Md.
Irshad Alam and Md. Reyaz Moarif in Criminal Appeal (DB) No.
130 of 2024 and Cr. Appeal (DB) No. 42 of 2024, however, it
would appear from the materials on the record that so far as Md.
Irshad Alam is concerned, the allegations against him are that of
being involved in arranging arms and ammunition and conducting
recce of a youth in order to kill him. The appellant Md. Reyaz
Moarif (A-4) has been found to be the person directly in touch
with the FIR named accused persons and he was operating the
Syndicate Bank Account (now Canara Bank) of PFI as General
Secretary of the PFI, Bihar State. The said account was opened in
the name of Mehbood Alam Nadvi (A-7), President of PFI, Bihar
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
State, Reyaz Moarif (A-4), General Secretary of PFI, Bihar State,
Abdur Rahman (A-24) as Treasurer of PFI, Bihar State in which
Rs. Seven Lakhs was deposited twice from other PFI accounts. It
is submitted that the case of Md. Reyaz Moarif (A-4) is also
clearly distinguishable.
19. Learned counsel further submits that one accused,
namely, Nooruddin Jangi @ Advocate Nooruddin Jangi has been
granted bail by a learned coordinate Bench of this Court in
Criminal Appeal (DB) No. 749 of 2023 after this Court found that
the allegations against him would not be said to have been made
out as he had never attempted to wage war or conspire against the
Government of India.
20. This Court earlier rejected the prayer for bail of Md.
Jalaluddin Khan @ Md. Jalaluddin in Criminal Appeal (DB) No.
514 of 2023 and that of Athar Parwez in Criminal Appeal (DB)
No. 516 of 2023, however, these two appellants have already been
granted bail by the Hon'ble Supreme Court in Criminal Appeal
No. 3173 of 2024 and Criminal Appeal No. 5387 of 2024
respectively. It is submitted that the Hon'ble Supreme Court has
recorded in the order allowing bail to Athar Parvez and Jalaluddin
that in the chargesheet, there is no allegation that the appellant was
a member of terrorist gang or organization. The PFI has not been
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
declared a terrorist organization within the meaning of Section
2(m) of the UA(P) Act, 1967. The PFI is not mentioned as terrorist
organization in the first schedule of UA(P) Act, 1967 and from the
statement of the charge-sheet witnesses, it would not be possible to
record prima-facie finding that commission of offence under the
UA(P) Act, 1967 would be attracted. Learned counsel submits that
these observations would be equally available in case of these
appellants.
21. Learned counsel for the appellants has also invited
attention of this Court towards the observations of the Hon'ble
Supreme Cout in paragraphs '30' and '32' of the order in case of
Athar Parwez (A-1) which according to learned counsel for the
appellants, would equally apply in case of these appellants.
Submissions on behalf of the NIA
22. Learned ASG for the NIA has opposed the prayer for
bail of the appellants. It is submitted that these appellants have
been found involved in channelising illegal funds for the unlawful
activities of the PFI. Attention of this Court has been drawn
towards the relevant paragraphs of the chargesheet to submit that
these two appellants had made some suspected deposits in some of
the accounts of the members of the PFI. It is submitted that the
extracted data of the mobile phones of Iqbal (A-33), Sarfaraz
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
Nawaz (A-32), Abdul Rafiqe M (A-34), Abid K M (A-35) are
having hand-written details of account, names of account holder,
amount to be deposited or deposited. The seized mobile phones of
the appellants shall establish their association with the PFI and
their involvement in deposits of illegal funds in different bank
accounts. It is submitted that both the appellants were involved in
channelising of illegal funds to accused persons Md. Belal @
Irshad (A-30), Reyaz Moarif (A-4), Md. Yaqub Khan @ Sultan @
Usman (A-27), Tanveer Barkati (A-28) and Md. Abid (A-29) of
East Champaran, Motihari Module of PFI for extending terrorist
activities of PFI even after its ban by the Central Government.
Consideration
23. We have heard learned counsel for the appellants and
learned ASG for the NIA.
24. These two appellants are the residents of the State of
Kerala and Karnataka. They are allegedly involved in channelizing
of illegal funds. On going through the chargesheet which has been
filed in case of these two appellants, we find that in paragraphs
'17.28' and '17.29' of the chargesheet, it is stated that the
suspicious transactions in form of cash deposit were made from
Md. Sinan (A-31) and Abdul Rafique M from the Canara Bank
Panemangalore, Bantwal and Vittala Branches of Dakshina
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
Kannada, District of Karnataka in the Canara Bank Account of
Md. Sajjad Alam. The cash amount of less than Rs. 50,000/- were
deposited in multiple transactions to avoid generation of
suspicious transaction report and escape scrutiny of Law
Enforcement Agencies. In these paragraphs, however, there is no
disclosure of the date of deposit of money in the bank account of
Md. Sajjad Alam, all that is stated in paragraph '17.30' is that
searches were conducted at seven locations in Kasaragod District
of Kerala and Dakshina Kannada District of Karnataka on
05.03.2023. During the searches, large number of incriminating
evidences were recovered and seized pertaining to huge illegal
transactions including to above-mentioned arraigned accused Md.
Sajjad Alam. Again, in these paragraphs of the chargesheet, there
is no mention of the date of deposit. This Court further finds that
there is a general and omnibus kind of statement that this money
was sent to the PFI members in pursuance of conspiracy for
carrying out activities of the PFI.
25. It is noticed from the charge-sheet that during
investigation Md. Yaqub Khan @ Sultan @ Usman (A-27) was
found involved in hatching a conspiracy for a targeted killing of a
Hindu boy to flare up the communal tension post-ban period and in
his custodial examination, he corroborated the facts regarding
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
receiving of funds from Md. Belal @ Irshad (A-30) and its use in
arranging ammunition for carrying out attack. This has been
mentioned in paragraph '17.32' of the charge-sheet. In the charge-
sheet filed by the NIA, there is no mention that Md. Yaqub Khan
@ Sultan @ Usman (A-27) or Md. Belal @ Irshad (A-30) were
found in touch with these appellants over telephone or through any
mode of communication. In course of investigation, the mobile of
Md. Yaqub Khan @ Sultan @ Usman was seized by the NIA. In
paragraph '17.23' of the chargesheet, it is stated that even after
declaration of PFI as unlawful association, Reyaz Moarif (A-4)
conspired with Md. Yaqub Khan @ Sultan @ Usman, Md. Belal @
Irshad and other PFI members that the training, recruitment and
other activities of PFI would be carried out secretly and for this
purpose, Reyaz Moarif (A-4) had arranged a hideout at Parsauni
village of Muzaffarpur in District of Bihar.
26. This Court finds in paragraph '17.23' of the charge-
sheet also it is not the case of the NIA that these two appellants
were connected to either Md. Yaqub Khan or Md. Belal @ Irshad
or Reyaz Moarif. It is stated that the investigation and statement of
witnesses established the association of Iqbal, Sarfaraz Nawaz,
Md. Sinan, Abdul Rafique M and Abid K M.
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
27. Even assuming for the sake of argument that some
money were transferred by these two appellants which they claim
to be about Rs.40-50,000/- for commission, there is no specific
material in the charge-sheet to show that these appellants had taken
part or have committed unlawful activities as defined in the UA(P)
Act. In the case of Thwaha Fasal vs. Union of India reported in
(2022) 14 SCC 766, the Hon'ble Supreme Court has held that the
Court should examine the materials forming part of the charge-
sheet to decide, whether there are reasonable grounds for believing
that the accusations against the persons applying for bail are prima
facie true. While doing so, the Court must take the chargesheet as
it is.
28. Keeping in view the aforementioned view of the
Hon'ble Supreme Court, this Court has taken note of the case
averred by the NIA in the charge-sheet as against these appellants.
29. In the case of Athar Parwez (supra), the Hon'ble
Supreme Court has observed in paragraph '27' as under:-
"27. The Court had further gone to the extent of
saying and rightly so that in the chargesheet
there is no allegation that the Appellant was a
member of a terrorist gang or organisation. It is
worth mentioning here that the PFI of which the
Appellant was a member has not been declared
a terrorist organisation within the meaning of
Section 2(m) of the UAPA, 1967. It was also
found that the PFI is not mentioned as a terrorist
organisation in the first schedule of UAPA,
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
1967. The chargesheet and the statement of
witness 'Z' when seen as it is, it would not be
possible to record prima facie finding that
commission of offence under the UAPA, 1967
would be attracted as there are no reasonable
grounds for believing that the accusations are
prima facie correct."
30. This Court finds that what has been held by the
Hon'ble Supreme Court prima-facie in paragraph '27' that in the
chargesheet, there is no allegation that the appellant was a member
of terrorist gang or organisation equally applies in case of these
appellants. There is no such allegation that the appellants are
membes of a terrorist gang or an organisation. The PFI of which
the appellants are said to be members has not been declared a
terrorist organisation within the meaning of Section 2(m) of the
UA(P) Act, 1967. The UA(P) Act, 1967 would also be applicable
to the case of the appellants.
31. Further, this Court finds that in case of Athar
Parwez (supra), the Hon'ble Supreme Court observed in
paragraph '30' as under:-
"30. Allegations against the Appellant with
regard to having collected Zakat from the
people for helping the PFI or recruiting
members of PFI, suffice it to say at this stage,
that on the day such activities were carried out
by the appellant, PFI was not a banned
organisation. None of the witnesses or the
protected witnesses stated that the money so
collected in the form of Zakat was ever
misappropriated by the appellant or was in any
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
manner used for illegal activities. The statement
of the protected witnesses has not mentioned
anything specific that would be attributed to the
appellant which could prima facie attract
charges under the UAPA, 1967."
32. Keeping in veiw the aforesaid observations of the
Hon'ble Supreme Court in case of Athar Parwez (supra), when
this Court goes through the allegations against these appellants, it
is found that they are said to have sent some amount in the account
of Sajjad Alam and in different accounts but nowhere in the
chargesheet, the date of such deposits by the appellants have been
disclosed. At the same time, there is no prima-facie material on the
record that the money said to have been sent by the appellants in
the account of Sajjad Alam were used for illegal activities post-ban
period. This Court, therefore, finds that the observations made in
paragraph '30' of the judgment in the case of Athar Parwez
(supra) would also be available to these appellants.
33. At this stage, this Court would briefly take note of
the fact that Section 15 of the UA(P) Act defines the activities
which would be covered under the word 'terrorist ac. Section 16
provides for punishment for terrorist act, Section 17 and 18 of the
UA(P) Act provides punishment for raising funds for terrorist act
and punishment for conspiracy etc. So far as these appellants are
concerned, in absence of any material on the record in the charge-
sheet showing that they were collecting funds for any person
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
knowing that such funds are likely to be used, in full or in part, by
such person or persons or by a terrorist organization or by a
terrorist gang or by an individual terrorist to commit a terrorist act,
it would not be possible to opine that there are reasonable grounds
for believing that the accusation against the appellants is prima-
facie true. In this view of the matter, in our opinion, the rigours of
Section 43D(5) of the UA(P) Act would not stand against the
prayer of the appellants for grant of bail.
34. An alternative submission has been advanced on
behalf of the appellants saying that this Court being a
constitutional court, in case of impossibility of the trial being
concluded within a reasonable period, can relax the rigours of
Section 43D(5) of the UA(P) Act, 1967 and the appellants may be
enlarged on bail by this Court if it is found that their fundamental
rights under Article 21 of the Constitution of India is being
violated. The statutory restrictions shall give way to the
fundamental rights under Part III of the Constitution of India.
Reliance has been placed on the judgment of the Hon'ble Supreme
Court in the case of Union of India vs. K.A. Najeeb reported in
(2021) 3 SCC 713, Javed Gulam Nabi Shaikh vs. State of
Maharashtra reported in (2024) 9 SCC 813 and Thwaha Fasal
vs. Union of India reported in (2022) 14 SCC 766. It is stated that
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
there are 160-170 witnesses to be examined in this case and
presently the cross-examination of only PW-2 is going on.
35. Since we have taken a view that the rigours of
Section 43D(5) of the UA(P) Act, 1967 would not stand against
the appellants for grant of bail, we need not go into the alternative
submissions of the appellants. We have noted that the appellants
are in custody for over two years and in case of Athar Parwez
(supra) the Hon'ble Supreme Court has having taken note of the
period of incarceration as well decided to enlarge him on bail. The
said observation of the Hon'ble Supreme Court in paragraph '32'
of the order of Athar Parwez shall be equally available to the
appellants.
36. In view of the discussions made hereinabove, we are
of the considered opinion that these appellants would deserve
privilege of bail during pendency of the trial subject to such
conditions as may be imposed by the learned Special Court as has
been ordered by the Hon'ble Supreme Court in the case of Athar
Parwez (supra), this Court would also direct the Special Court to
enlarge the appellants on bail immediately on appropriate terms
and conditions after hearing counsel for the respondent.
37. It is made clear that the observations made
hereinabove are tentative in nature and no part of it shall cause
Patna High Court CR. APP (DB) No.875 of 2024 dt.18-04-2025
prejudice to the case of the either parties and it will have no
bearing on the trial.
38. This appeal is allowed.
(Rajeev Ranjan Prasad, J)
(S. B. Pd. Singh, J)
Rishi/-
AFR/NAFR
CAV DATE 11.04.2025
Uploading Date 18.04.2025
Transmission Date 18.04.2025
