Punjab-Haryana High Court

Jagtar Singh Johal Alias Jaggi vs National Investigation Agency on 15 March, 2022

CRA-D-405-2020(O&M)                                        1

                IN THE HIGH COURT OF PUNJAB AND HARYANA
                         AT CHANDIGARH

                                CRA-D-405-2020(O&M)
                                Order Reserved on: 03.03.2022
                                Order Pronounced on: 15.03.2022


Jagtar Singh Johal alias Jaggi                      ....... Appellant

            versus

National Investigating Agency                        ...... Respondent


CORAM : HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA
         HON'BLE MR. JUSTICE LALIT BATRA
                            ***
Present: Mr.Baldev Singh Badhran, Advocate and
         Ms.Arshdeep Kaur, Advocate
         for the appellant.

            Mr.S.S.Sandhu, Advocate for NIA.
                             ***

TEJINDER SINGH DHINDSA, J.

The instant appeal filed under Section 21(4) of the National

Investigation Agency Act, 2008 is directed against the order dated

24.06.2020 passed by the Special Judge, NIA, SAS Nagar, Mohali in terms

of which the bail application of the appellant in RC No. 24/2017/NIA/DLI

dated 10.12.2017, FIR No.27/2016, Police Station Basti Jodhewal,

Ludhiana, under Sections 307/34, 120-B of the IPC, Sections 25/27 of the

Arms Act, Sections 16, 17, 18, 18-A, 18-B, 20, 21 and 23 of the Unlawful

Activities (Prevention) Act, 1967 (hereinafter to be referred to as the '1967

Act' for short), Police Station NIA, New Delhi, has been dismissed.

Operative part of the impugned order declining bail to the

appellant reads as under:-

" On perusal of the record it has been found that prima

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facie there is sufficient evidence against the applicant/accused

Jagtar Singh Johal @ Jaggi to establish his involvement in the

conspiracy of targeted killings/attempted killings (including

instant incident of attempted killing of Amit Arora) of persons

that took place in the State of Punjab during the period 2016-

17. It has also come on record that funds facilitated by the

applicant/accused Jagtar Singh Johal @ Jaggi was handed

over to accused Hardeep Singh @ Shera who along with

Ramandeep Singh @ Bagga used that funds for carrying out

eight incidents of targeted killings/attempted killings (including

this incident of attempt to killing of Amit Arora). Thus, in this

way, it has been established that Jagtar Singh Johal @ Jaggi

has conspired, abetted, funded and facilitated the incident of

instant terrorist act. Thus, from the perusal of record, this

court is of the considered opinion that there is sufficient

grounds for believing that accusation against the

applicant/accused is prima facie true. Still further in case the

applicant is granted bail, he may threatened or influence the

witnesses of the instant case and hamper the trial of the instant

case. Thus, keeping in view the serious nature of allegations,

this Court does not deem it fit to grant the concession of bail to

the applicant/accused Jagtar Singh Johal @ Jaggi. As such, the

bail application filed by the applicant/accused Jagtar Singh

Johal @ Jaggi is hereby dismissed. Papers be attached with the

main file."

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Counsel for the appellant contends that it is a case of false

implication by the NIA and Punjab police. Multiple FIRs have been

registered in the State of Punjab in which appellant was not even named and

no incriminating material having been found against him during the course

of investigation. For ready reference the particulars as also status of all the

FIRs have been detailed in the grounds of appeal and are as follows:-

"(i) FIR No. 63 Dated 26-06-2017, U/S 25 Arms Act, 17, 18,

20 of UA (P) Act, PS Bajakhana Faridkot, Discharged on 24-

07-2019 by the court of Sh. Rakesh Kumar, Additional Sessions

Judge, Faridkot.

(ii) FIR No.193 Dated 17-12-2016, U/S 25 Arms Act, 17, 18,

19, 20 Unlawful Activities (P) Act PS Bagha Purana, Moga.

Pending in the Court of Ms. Anjana, ASJ, Moga for

Prosecution Evidence.

(iii) RC-24/2017/NIA/DLI of 2017, FIR No. 27 Dated 04-02-

2016, U/S 307/34 IPC, 25 Arms Act, 10, 11, 13, 16 UA (P) Act,

PS Jodhewal, Ludhiana. Pending in the court of Sh. Karunesh

Kumar, Special NIA Court Punjab at SAS Nagar Mohali for

consideration on Charge (Present Case).

(iv) RC-7/2019/NIA/DLI of 2019: RC-10 (S)/2016/SCU.V/SC-

II/New Delhi, Dated: 07-09-2016, FIR No.113 Dated 07-08-

2016, U/S 302/34 IPC, 25 Arms Act, 10, 11, 13, 16 UA (P) Act,

PS Div. No. 4, Jalandhar, Pending in the court of Sh. Karunesh

Kumar, Special NIA Court Punjab at SAS Nagar Mohali for

consideration on Charge.

(v) RC-18/2017/NIA/DLI of 2017, FIR No.442 Dated 17-10-

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2017 U/S 302/34 IPC, 25 Arms Act, 10, 12, 13 UA (P) Act, PS

Salem Tabri, Ludhiana. Pending in the court of Sh. Praveen

Kumar, Special NIA Court at Patiala House, New Delhi for

Compliance of Section 207 Cr.P.C.

(vi) RC-22/2017/NIA/DLI of 2017, FIR No.218 Dated 15-07-

2017, U/S 302/34 IPC, 25 Arms Act, 10, 11, 13, 16 UA (P) Act,

PS Salem Tabri, Ludhiana. Pending in the court of Sh.

Praveen Kumar, Special NIA Court at Patiala House, New

Delhi for Compliance of Section 207 Cr.P.C.

(vii) RC-23/2017/NIA/DLI of 2017, FIR No.13 Dated 26-02-

2017, U/S 302/34 IPC, 25 Arms Act, 10, 11, 13 UA (P) Act, PS

Maloud, Polce Distt. Khanna. Pending in the court of Sh.

Praveen Kumar, Special NIA Court at Patiala House, New

Delhi for Compliance of Section 207 Cr.P.C.

(viii) RC-25/2017/NIA/DLI of 2017, FIR No.119 Dated 24-04-

2016, U/S 302/34 IPC, 25 Arms Act, 10, 11, 13 UA (P) Act, PS

City Khanna. Pending in the court of Sh. Praveen Kumar,

Special NIA Court at Patiala House, New Delhi for Compliance

of Section 207 Cr.P.C.

(ix) RC-26/2017/NIA/DLI of 2017, FIR No. 7 Dated 18-01-

2016 U/S 307 IPC, 25 Arms Act, 10, 11, 13, 16 UA (P) Act, PS

Div. No. 2, Ludhiana. Pending in the court of Sh. Praveen

Kumar, Special NIA Court at Patiala House, New Delhi for

Compliance of Section 207 Cr.P.C.

(x) RC-27/2017/NIA/DLI of 2017, FIR No. 6 Dated 15-01-

2017, U/S 302/34 IPC, 25 Arms Act, 10, 11, 13, 16 UA (P) Act,

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PS Div. No. 8, Ludhiana. Pending in the court of Sh. Praveen

Kumar, Special NIA Court at Patiala House, New Delhi for

Compliance of Section 207 Cr.P.C."

Giving out a backdrop to the matter, counsel submits that one

Amit Arora had got recorded his statement before the police that on

03.02.2016 two unknown persons had fired upon him at about 20:30 hrs.

while he was at Jodhewal road along with his servant Mani and gunman

Om Parkash. Pursuant thereto FIR No.27 dated 04.02.2016, under Section

307/34 IPC and Section 25 of the Arms Act, 1959 was registered at Police

Station Basti Jodhewal, Ludhiana, Punjab against unknown persons.

Investigation was carried out by the Punjab police and a final report under

Section 173 Cr.P.C. was prepared. As per final report FIR had been lodged

falsely by complainant Amit Arora, Youth President of Shiv Sena, Punjab.

His servant Mani and gunman Om Parkash were arrested along with

complainant by the police and they had confessed that the attack had been

planned and a friendly iron rod blow had been given by servant Mani to

create false evidence. On the basis of such investigation final report under

Sections 420, 417, 177, 193, 120-B, 34 IPC and Section 25 of the Arms Act,

1959 was prepared by the police against Amit Arora and his accomplices.

Thereafter based on a reference from the Government of Punjab in

accordance with Section 6(2) of the National Investigation Act, 2008 and

Ministry of Home Affairs' order dated 08.12.2017, the case was transferred

to NIA whereby NIA re-registered the case bearing FIR

No.24/2017/NIA/DLI dated 10.12.2017, under Sections 120-B, 307 IPC,

Sections 16, 17 ,18, 18-A, 18-B, 20, 21 and 23 of the 1967 Act and Sections

25 and 27 of the Arms Act, 1959. A final report/chargesheet dated

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22.02.2019 already stands presented before the Special Judge, NIA Court,

Punjab at SAS Nagar, Mohali against the appellant herein and others,. Copy

of such chargesheet stands appended as Annexure P-3 along with the appeal.

Counsel has argued that the appellant is entitled to bail

inasmuch as in the chargesheet at Annexure P-3 the only allegation is that

the appellant had delivered 3000 British Pounds to Harminder Singh @

Mintu (since deceased) and these very allegations are already part of FIR

No. 193 of 2016 registered at Police Station Bagha Purana, Moga under

Section 25 of the Arms Act, 1959 and Sections 17, 18, 19, 20 of the 1967

Act. Further asserted that the appellant had been arrested in afore-noticed

FIR No.193 of 2016 on the basis of disclosure statement made by one Taljit

Singh Jimmy who in turn had been implicated in the said case on the basis

of disclosure statement of one Tarlok Singh Laddi. It is submitted that both

Taljit Singh Jimmy and Tarlok Singh Laddi have been discharged by the

NIA in the present case. That apart counsel has adverted to order dated

06.11.2020 passed by this Court in CRM-M-32730-2020 whereby the

petitioner (appellant herein) has been granted concession of bail in FIR

No.193 dated 17.12.2016. Counsel emphasises that the NIA has solely

relied upon the alleged disclosure statement made in FIR No. 193 of 2016 at

Moga insofar as present case is concerned. Counsel further argues that the

impugned order passed by the Special Judge rejecting the bail plea of the

appellant is based on surmises and conjectures and no

material/document/evidence has been adverted to on the basis of which a

finding has been returned against him. Still further contended that NIA has

cited 197 witnesses to be examined and 182 documents to be exhibited

during trial and as such the whole process would likely to take considerable

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time to conclude whereas the appellant has faced incarceration since

04.11.2017.

Per contra Mr.S.S.Sandhu, Advocate, Special Prosecutor for

NIA has opposed the prayer for bail. A preliminary objection has been

raised stating that under Section 21(5) of the NIA Act, 2008 a limitation

period of 30 days is provided for filing the appeal against the judgment of

the NIA Special Court and such period commences to run from the date of

the judgment. In the case in hand, the bail application was dismissed by the

NIA Special Court, Mohali on 24.06.2020 and the instant appeal has been

filed on 21.12.2020 i.e. after a period of 180 days. Mr. Sandhu contends that

the appeal is time barred by 150 days.

On merits, learned counsel for NIA submits that during the

course of investigation in FIR No.27 of 2016 registered at Police Station

Basti Jodhewal, Ludhiana, it came to light that a number of incidents have

happened in the State of Punjab in the years 2016-17 in which people

belonging to a religious organisation were being targeted/attacked/killed.

To unearth the truth behind these incidents which were viewed as a larger

conspiracy to destabilise public order in Punjab, the Government of India,

Ministry of Home Affairs in exercise of powers conferred upon it under

Section 6(4) read with Section 8 of the National Investigation Act, 2008

decided that all the cases will be investigated by NIA. Pursuant to such

decision the Ministry of Home Affairs vide order dated 08.12.2017, directed

NIA to take up the investigation of FIR No.27/2016. Accordingly NIA re-

registered the case RC No. 24/2017/NIA/DLI dated 10.12.2017 at Police

Station NIA, Delhi under Section 307 read with Section 34 IPC, Sections 10,

11, 13 and 16 of the 1967 Act and Section 25 of the Arms Act. After

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conducting investigation, a supplementary chargesheet has been filed in the

Court of Special Judge, NIA, Mohali on 22.02.2019 against eight accused

persons namely Hardeep Singh @ Shera @ Pehalwan (A-1), Ramandeep

Singh @ Canadian @ Bagga (A-2), Dharminder Singh @ Guguni (A-3),

Anil Kumar @ Kala (A-4), Jagtar Singh Johal @ Jagtar Singh Johar @

Jaggi @ Johar (A-6) (present appellant), Harmeet Singh @ PhD @ Doctor

(A-14), Gurjinder Singh @ Shastri (A-15), Gursharanbir Singh (A-16),

under Sections 120-B, 307of the IPC, Sections 16, 17, 18, 18-A, 18-B, 20,

21 and 23 of the 1967 Act (as amended) and Sections 25, 27 of the Arms

Act, 1959.

Mr.Sandhu, learned counsel for NIA has vehemently stressed

that during investigation it has been found that the appellant used to write a

publication in the name of 'Singh Surme' related to 1984 riots. He along with

Gursharanbir Singh(A-16) wrote a book on Khalistan Liberation Force

(KLF) in the years 2013-14. Appellant had handed over 3000 British

Pounds to Harminder Singh @ Mintu in France. Such money was given

towards executing a larger conspiracy and for recruitment and motivating

like minded persons to join Khalistan Liberation Force - a terrorist gang.

Further investigation established that co-accused Hardeep Singh @ Shera

along with Ramandeep Singh had carried out a series of targeted

killings/attempted killings during the period of 2016-17 in Ludhiana and

Jalandhar districts of Punjab with the motive of destabilising the law and

order situation of Punjab. It is submitted that the appellant is a close

associate of co-accused Harmeet Singh @ PhD and Gursharanbir Singh (A-

16), the master mind of conspiracy and as such had played a vital role in the

planning and execution of the larger conspiracy. To buttress such

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submission Mr Sandhu had also produced before us in a sealed cover the

statements recorded of certain protected witnesses. We have perused the

same.

Mr. Sandhu has also opposed the prayer for bail citing the

statutory rigors of Section 43-D (5) of the 1967 Act.

We have heard counsel for the parties at length.

The objection as regards the instant appeal being time barred is

without merit. In this regard the order/clarification issued by the Registrar

General of this Court dated 09.07.2020 at Annexure P-4 would be relevant

and the same is in the following terms:-

"ORDER/CLARIFICATION

Re : Situation arising due to outbreak of the novel Coronavirus (COVID-19).

It is clarified for information of the Learned Advocates,

Litigants and General Public that the limitation for filing the

cases/applications before the Hon'ble High Court and the

Subordinate Courts stand extended w.e.f. 15.03.2020 till

further orders, in pursuant to Order dated 23.03.2020 and

06.05.2020 passed in Suo Moto Writ Petition (Civil) No. 3/2020

which is pending before the Hon'ble Supreme Court and it will

be subject to modification of orders by the Hon'ble Supreme

Court, if any.

BY ORDER OF HON'BLE THE CHIEF JUSTICE

Sd/-

(Sanjiv Berry) Registrar General 09.07.2020"

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In the light of such clarification the objection raised by learned

counsel for NIA as regards delay is overruled.

Section 43-D(5) of the 1967 Act reads as under:-

" Modified application of certain provisions of the Code.--

5. Notwithstanding anything contained in the Code, no

person accused of an offence punishable under Chapters IV and

VI of this Act shall, if in custody, be released on bail or on his

own bond unless the Public Prosecutor has been given an

opportunity of being heard on the application for such release:

Provided that such accused person shall not be

released on bail or on his own bond, if the Court, on a perusal

of the case diary or the report made under Section 173 of the

Code is of the opinion that there are reasonable grounds for

believing that the accusation against such person is prima facie

true."

Undoubtedly the bail proceedings under a special enactment

will have to be viewed as distinct and the Courts are duty bound to refuse

bail where the suspect is prima facie believed to be guilty. We are conscious

that the charges levelled against the appellant are grave and in the nature of

making an attempt to destabilise public order in the State of Punjab. Be that

as it may, we are refraining from making any observations on merits lest it

may prejudice the trial. In the same vein we are of the view that

Constitutional Courts ought to exercise their power to grant bail

notwithstanding the limitations specified under special enactments keeping

in view the right of an accused to speedy trial and access to justice.

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In the case of special legislations like the Terrorist and

Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and

Psychotropic Substances Act, 1985 which also have rigorous conditions for

grant of bail, the Apex Court in a number of cases has enlarged the accused

on bail on account of the extended period of incarceration and with little

possibility of an early completion of trial. A reference in this regard may be

made to the decisions of the Apex Court in Paramjit Singh vs. State (NCT

of Delhi) (1999) 9 SCC 252, Babba @ Shankar Raghuman Rohida vs.

State of Maharashtra (2005) 11 SCC 569 and Umar Mia @ Mamu Mia

vs. State of Gujarat (2017) 2 SCC 731.

The Apex Court in Union of India vs. K.A.Najeeb, (2021) 3

SCC 713 had considered the issue of a long incarceration against the

backdrop of Section 43-D(5) of the 1967 Act and had observed as follows:-

"18. It is thus clear to us that the presence of statutory

restrictions like Section 43D (5) of UAPA perse does not oust

the ability of Constitutional Courts to grant bail on grounds of

violation of Part III of the Constitution. Indeed, both the

restrictions under a Statue as well as the powers exercisable

under Constitutional Jurisdiction can be well harmonised.

Whereas at commencement of proceedings, Courts are expected

to appreciate the legislative policy against grant of bail but the

rigours of such provisions will melt down where there is no

likelihood of trial being completed within a reasonable time

and the period of incarceration already undergone has

exceeded a substantial part of the prescribed sentence. Such an

approach would safeguard against the possibility of provisions

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like Section 43D (5) of UAPA being used as the sole metric for

denial of bail or for wholesale breach of constitutional right to

speedy trial.

19. Adverting to the case at hand, we are conscious of

the fact that the charges levelled against the respondent are

grave and a serious threat to societal harmony. Had it been a

case at the threshold, we would have outrightly turned down the

respondent's prayer. However,keeping in mind the length of the

period spent by him in custody and the unlikelihood of the trial

being completed anytime soon, the High Court appears to have

been left with no other option except to grant bail. An attempt

has been made to strike a balance between the appellant's right

to lead evidence of its choice and establish the charges beyond

any doubt and simultaneously the respondent's rights

guaranteed under Part III of our Constitution have been well

protected.

20. Yet another reason which persuades us to enlarge

the Respondent on bail is that Section 43D(5) of the UAPA is

comparatively less stringent than Section 37 of the NDPS.

Unlike the NDPS where the competent Court needs to be

satisfied that prima facie the accused is not guilty and that he is

unlikely to commit another offence while on bail; there is no

such precondition under the UAPA. Instead, Section 43D (5) of

UAPA merely provides another possible ground for the

competent Court to refuse bail, in addition to the wellsettled

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considerations like gravity of the offence, possibility of

tampering with evidence, influencing the witnesses or chance of

the accused evading the trial by absconsion etc."