Gauhati High Court
Crl.A./111/2024 on 30 January, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
GAHC010080562024
2025:GAU-AS:1063-DB
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRIMINAL APPEAL no. 111/2024
1. Sri Ajoy Basumatary @ Ajoy @ B. Buhum @
Birkhang Basumatary, Son of Bolendra
Basumatary, R/o Duligaon, Police Station -
Basugaon, Chirang, Assam.
2. Sri Dilip Basumatary @ B. Birbaisha @ Birbhai
@ Birbhai @ Lambu, Son of Solendra Brahma @
Solendra Basumatary, R/o Thaisubari-II, Police
Station - Bijni, Chirang, Assam.
3. Sri Nitul Daimary @ D. Naihab @ Naihab, Son
of Jogeshwar Daimary, R/o no. 2 Harimbapur,
Police Station - Dhekiajuli, Sonitpur, Assam.
4. Sri Ustad Basumatary @ Dhaneswar
Basumatary @ Dapung, Son of Hemo
Basumatary, R/o Bessorgaon, near Bora Bazar,
Police Station - Bijni, Chirang, Assam.
5. Sri Pohor Narzary @ Jaan Narzary, Son of
Benga Narzary, R/o - Amlyguri, Police Station -
Gohpur, Sonitpur, Assam.
Page 1 of 80
6. Sri Ananta Swargiary @ S. Agar, Son of
Khudiram Swargiary, R/o - Mwinaguri Village,
Police Station - Biswanath Chariali, District -
Sonitpur, Assam.
7. Sri Babul Narzary @ Gojen Narzary @
Kantiswar, Son of Upen Narzary, R/o - Sonarijan
Village, Police Station - Gohpur, District -
Sonitpur, Assam.
8. Sri Julius Basumatary @ Jujai, aged about 30
years, son of Kamei Basumatary, R/o no. 1 Jiaguri
Village, Police Station - Dhekiajuli, District -
Sonitpur, Assam
..................Appellants
- VERSUS -
The National Investigation Agency, represented by
the Standing Counsel
...................Respondent
Advocates :
Appellants : Mr. A.K. Bhattacharyya, Senior Advocate,
Mr. R. Dey, Advocate,
Mr. D.K. Bhattacharyya, Advocate.
Respondents : Mr. D.K. Das, Senior Advocate & Special
Counsel, NIA,
Mr. D. Bharadwaj, Advocate,
Ms. G. Acharjee, Advocate.
Date of Hearing : 24.10.2024
Date of Judgment & Order : 30.01.2025
Page 2 of 80
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
JUDGMENT & ORDER
[Manish Choudhury, J]
A. The Assail :-
1. The instant criminal appeal, preferred under sub-section [4] of Section 21 of
the National Investigation Agency [NIA] Act, 2008, is directed against an
Order dated 20.03.2024 passed by the learned Special Judge, NIA, Assam at
Guwahati in Misc. [NIA] Case no. 27 of 2024, which arose out of Special NIA
Case no. 2 of 2015.
2. By the Order dated 20.03.2024, the learned Special Judge, NIA, Assam at
Guwahati rejected a bail application, registered and numbered as Misc. [NIA]
Case no. 27/2024, preferred by 8 [eight] nos. of charge-sheeted accused
persons, namely, [i] Ajoy Basumatary @ Ajoy @ B. Buhum @ Birkhang
Basumatary [A-1]; [ii] Dilip Basumatary @ B. Birbaisha @ Birbhai @ Birbhal @
Lambu [A-2]; [iii] Nitul Daimary @ D. Naihab @ Naihab [A-4]; [iv] Ustad
Basumatary @ Dhaneswar Basumatary @ Dapung [A-5]; [v] Pohor Narzary @
Jaan Narzary [A-6]; [vi] Ananta Swargiary @ Agar [A-7]; [vii] Gojen Narzary
@ Babul Narzary @ Kantiswar [A-8]; and [viii] Julius Basumatary @ Jujai [A-
9], seeking bail in connection Special NIA Case no. 2/2015.
B. The case of the prosecution :-
3. On 25.12.2014, one First Information Report [FIR] came to be lodged before
the Officer In-Charge, Biswanath Chariali Police Station by a Sub-Inspector of
Page 3 of 80
Police attached to Jinjia Police Out Post, in reference to Biswanath Chariali
Police Station General Diary Entry no. 497 dated 23.12.2014. In the FIR, it
was stated that when the informant along with one section of SSB and a half-
section of Assam Police Battalion was on patrolling duty at Baliranga area of
Tinisuti, the team came to learn that the cadres of the terrorist organization,
National Democratic Front of Bodoland [NDFB] – Songbijit faction killed thirty
Adivashi people at 9 and 10 nos. Line of Sonajuli area under Biswanath
Chariali Police Station. Later on, the informant along with the Sub-Divisional
Police Officer, Biswanath Chariali and an Executive Magistrate visited the place
of occurrence and conducted inquest proceedings on the deadbodies, before
sending them to Bihali Public Health Centre [PHC] for post-mortem
examinations. The team also found two persons who had sustained injuries in
the incident and accordingly, they were sent to Biswanath Chariali Civil
Hospital for treatment.
4. On receipt of the FIR, the Officer In-Charge, Biswanath Chariali Police Station
registered the same as Biswanath Chariali Police Station Case no. 310/2014
on 25.12.2014 for the offences under Section 326, Section 307 & Section 302
of the Indian Penal Code [IPC]; Section 25[1A] & Section 27 of the Arms Act,
1959; and Section 10 & Section 13 of the Unlawful Activities [Prevention] Act,
1967.
5. Having regard to the gravity of the incident and in compliance of an Order
bearing no. F. No. 11011/66/2014-IS.IV dated 27.12.2014 of the Ministry of
Home Affairs, Government of India, the National Investigation Agency [NIA]
re-registered the case, Biswanath Chariali Police Station Case no. 310/2014 as
NIA Case no. RC-05/2014/NIA-GUW dated 30.12.2014 under Section 326,
Section 307 & Section 302 of the Indian Penal Code [IPC]; Section 25[1A] &
Section 27 of the Arms Act, 1959; and Section 10 & Section 13 of the
Unlawful Activities [Prevention] Act, 1967 against the suspected cadres of the
Page 4 of 80
National Democratic Front of Bodoland [Songbijit], that is, NDFB [S] in short,
on the basis of the original FIR and started investigating into the case.
C. The Investigation and the Charge-Sheets under Section 173, CrPC :-
6. During the course of investigation, it was revealed that the cadres of the
NDFB[S] were involved in a criminal conspiracy and in pursuance of the
conspiracy, the incident of killing of those thirty Adivashi / Southal people at
Sonajuli village in Sonitpur district of Assam was carried out on 23.12.2014.
The outfit, National Democratic Front of Bodoland is a proscribed terrorist
organization mentioned in the First Schedule of the Unlawful Activities
[Prevention] Act, 1967, as amended.
7. After completing investigation for a major part, the investigating agency, NIA
submitted a charge-sheet vide Charge-Sheet no. 03/2015 on 13.07.2015
finding a prima-facie case against four nos. of accused persons, A-1, A-2, A-3
& A-4, whose descriptions are mentioned in the subsequent paragraph no. 12
of this Order, for commission of a number of offences under the IPC, the
Arms Act, 1959 [‘the Arms Act‘, for short], the Unlawful Activities [Prevention]
Act, 1967 [‘the UA[P] Act’, for short] and the Explosive Substances Act, 1908
[‘the Explosive Substances Act‘, for short].
8. After submission of the Charge-Sheet no. 03/2015 on 13.07.2015, further
investigation under Section 173 [8], Code of Criminal Procedure, 1973 [‘the
CrPC‘ or ‘the Code’, for short] was carried out in connection with NIA Case no.
RC-05/2014/NIA-GUW dated 30.12.2014 and such further investigation
resulted into another Report under Section 173, CrPC in the form of 1st
Supplementary Charge-Sheet bearing Charge-Sheet no. 3A/2015 dated
19.10.2015. As per the 1st Supplementary Charge-Sheet, further investigation
had established involvement of two more accused persons in the incident
resulting in the killing of thirty Adivashi / Southal people at Sonajuli village on
Page 5 of 80
23.12.2014. Accordingly, the 1st Supplementary Charge-Sheet was filed on
19.10.2015 finding a prima facie case against two nos. of accused persons,
A-5 & A-6, whose descriptions are mentioned in the subsequent paragraph
no. 12 of this Order, for a number of offences under the IPC, the Arms Act
and the UA[P] Act.
9. Another Report as 2nd Supplementary Charge-Sheet being Charge-Sheet no.
3B/2016 in connection with NIA Case no. RC-05/2014/NIA-GUW dated
30.12.2014 came to be laid on 19.02.2016 finding a prima-facie case of
involvement of three more accused persons, A-7, A-8 & A-9 in the incident of
killing resulting into death of thirty Adivashi / Southal people at Sonajuli
village on 23.12.2014. In the 2nd Supplementary Charge-Sheet, the materials
regarding involvement of those three accused persons [A-7, A-8 & A-9],
whose details are stated in the subsequent paragraph no. 12 of this Order, for
a number of offences under the IPC, the Arms Act, 1959 and the UA[P] Act
were incorporated.
10. It was mentioned in the Charge-Sheet dated 13.07.2015, the 1st
Supplementary Charge-Sheet dated 19.10.2015 and the 2nd Supplementary
Charge-Sheet dated 19.02.2016 that the Charge-Sheets were submitted after
duly obtaining prosecution sanction under Section 45[1][ii] of the UA[P] Act;
under Section 39 of the Arms Act; and under Section 7 of the Explosive
Substances Act.
11. One further Report in the form of 3rd Supplementary Charge-Sheet vide
Charge-Sheet no. 3C/2015 came to be submitted in connection with NIA Case
no. RC-05/2014/NIA-GUW on 22.10.2019 against one more accused person,
who was the 10th accused person [A-10] charge-sheeted in the case.
12. By the original Charge-Sheet, the 1st Supplementary Charge-Sheet, the 2nd
Supplementary Charge-Sheet and the 3rd Supplementary Charge-Sheet, the
Page 6 of 80
investigating agency, NIA charge-sheeted the following 10 [ten] nos. of
persons for the offences indicated in the Table – I hereinbelow :-
Table – I
Sr. Name Accused Offences in the Charge-Sheets
1 Ajoy Basumatary @ Ajay A-1 Section 120B r/w Sections 118,
Basumatary @ B. Buhum @ 302 & 307, IPC; and Sections 18
Birkhang Basumatary & 20 of UA[P] Act; Section
25[1A] of Arms Act; and Section
5 of Explosive Substances Act.
2 Dilip Basumatary @ B. Birbaisha A-2 Section 120B r/w Sections 118,
@ Birbhai @ Birbhol @ Lambu 302 & 307, IPC; and Sections 18
& 20 of UA[P] Act.
3 Khamrei Basumatary @ A-3 Sections 19 & 20 of UA[P] Act.
KanhreiBassumatary @ B. Udla
@ Urla
4 Nitul Daimary @ D. Naihab @ A-4 Section 120B r/w Sections 118,
Naihab 302 & 307, IPC; and Sections 18
& 20 of UA[P] Act; and Section
25[1A] of Arms Act.
5 Ustad Basumatary @ Daneswar A-5 Section 120B r/w Sections 121,
Basumatary @ Dapung 302, 307, 326 & 34, IPC; and
Sections 16, 18 & 20 of UA[P]
Act; and Sections 25[1-B][a] & 27
of Arms Act.
6 Pohor Narzary @ Jaan Narzary A-6 Section 120B r/w Sections 121,
302, 307, 326 & 34, IPC; and
Sections 16, 18 & 20 of UA[P]
Act; and Section 25[1-B][a] of
Arms Act.
7 Ananta Swargiary @ Agar A-7 Section 120B r/w Sections 121,
302, 307 & 34, IPC; and
Page 7 of 80
Sections 16[1][a], 18 & 20 of
UA[P] Act; and Section 25[1-
B][a] of Arms Act.
8 Gojen Narzary @ Babul Narzary A-8 Section 120B r/w Sections 121,
@ Kantiswar 302, 307 & 34, IPC', and
Sections 16[1][a], 18 & 20 of
UA[P] Act; and Section 25[1-
B][a] of Arms Act.
9 Julius Basumatary @ Jujai A-9 Section 120B r/w Sections 121,
302 & 307, IPC; and Sections 18
& 20 of UA[P] Act.
10 Bishnu Goyary @ G. Bidai @ A-10 Sections 120B, 121, 302, 307 r/w
Haranga @ Jaila @ Hanya @ 34, IPC; and Sections 16[1][a],
Bhushan 18 & 20 of UA[P] Act.
13. The appellants herein are referred to A-1, A-2, A-4, A-5, A-6, A-7, A-8 and A-
9 respectively in the Charge-Sheets and they are also referred to in the same
manner at some of the places here in this Order for easy reference.
D. The Charges :-
14. After submission of the 2nd Supplementary Charge-Sheet, the date,
19.09.2016 was fixed for consideration of charge. On that day, the learned
Special Court after hearing the learned Special Public Prosecutor and the
learned defence counsel; and after perusal of the materials on record; framed
the following charges against the charge-sheeted accused persons, A-1 to A-
9, as shown in Table – II below :-
Table – II
Sr. Name Accused Offences the accused is charged with
1 Ajoy Basumatary @ Ajay A-1 Sections 120B, 302 & 307, IPC; r/w
Basumatary @ B. Buhum Sections 18 & 20, UA[P] Act; r/wPage 8 of 80
@ Birkhang Basumatary Section 5, Explosive Substances Act;
r/w Section 25[1A], Arms Act.
2 Dilip Basumatary @ B. A-2 Sections 120B, 302 & 307, IPC; r/w
Birbaisha @ Birbhai @ Sections 18 & 20, UA[P] Act.
Birbhol @ Lambu
3 Khamrei Basumatary @ A-3 Sections 19 & 20, UA[P] Act.
KanhreiBassumatary @ B.
Udla @ Urla
4 Nitul Daimary @ D. Naihab A-4 Sections 120B, 302 & 307, IPC; r/w
@ Naihab Sections 18 & 20, UA[P] Act; r/w
Section 25[1A], Arms Act.
5 Ustad Basumatary @ A-5 Sections 120B, 121, 302 & 307, IPC;
Daneswar Basumatary @ r/w Sections 16, 18 & 20, UA[P] Act;
Dapung r/w Section 25[1B][a], Arms Act. 6 Pohor Narzary @ Jaan A-6 Section 120B, 121, 302, 307, IPC; r/w Narzary Sections 16, 18 & 20, UA[P] Act; r/w Section 25[1B][a], Arms Act. 7 Ananta Swargiary @ Agar A-7 Sections 120B, 121, 302 & 307, IPC; r/w Sections 16, 18 & 20, UA[P] Act; r/w Section 25[1B][a], Arms Act. 8 Gojen Narzary @ Babul A-8 Sections 120B, 121, 302 & 307, IPC; Narzary @ Kantiswar r/w Sections 16, 18 & 20, UA[P] Act; r/w Section 25[1B][a], Arms Act.
9 Julius Basumatary @ Jujai A-9 Sections 120B, 302 & 307, IPC; r/w
Sections 18 & 20, UA[P] Act.
E. The Trial :-
15. After framing of the charges, the charges were read over and explained to the
accused persons, A-1 to A-9 who were produced on that day before the
Page 9 of 80
learned Special Court from judicial custody, and the accused persons pleaded
not guilty and claimed to be tried.
16. In the 3rd Supplementary Charge-Sheet wherein the accused person, Bishnu
Goyary @ G. Bidai @ Haranga @ Jaila @ Hayna @ Bhushan [A-10] was
shown as an absconder, the learned Special Court on 23.10.2019 took
cognizance and issued Non-Bailable Warrant of Arrest [NBWA] against the
charge-sheeted accused person, A-10. Till date, the charge-sheeted accused
person, A-10 has not been arrested.
17. The charge-sheeted accused person, Khamrei Basumatary @ Kanhrei
Basumatary @ B. Udla @ Urla [A-3] against whom charges under Section 19
and Section 20 of the UA[P] Act were framed on 19.09.2016, filed a petition
being Petition no. 545/2019 wherein he prayed to accept his prayer for
pleading guilty of the offences alleged against him considering the length of
detention and on humanitarian ground. The learned Special Court while taking
up Petition no. 545/2019 for consideration, heard the charge-sheeted accused
person, A-3 as well as the prosecution side. After going through the materials
on record and upon hearing the parties, the learned Special Court had
recorded that the said charge-sheeted accused person, A-3 was an active
member of the NDFB and he provided shelter and harboured the charge-
sheeted accused persons, A-1 and A-2 after the killing of thirty persons in the
incident which took place at Sonajuli village on 23.12.2014 and A-3 had
knowingly given shelter to both A-1 and A-2, who were allegedly involved in
the said killing. The learned Special Court recorded that after examination of
the charge-sheeted accused person, A-3, it appeared that he had voluntarily
pleaded guilty of the offences and accordingly, the learned Special Court
accepted the said plea. Thereafter, the learned Special Court convicted the
charge-sheeted accused person, A-3 for the offences under Section 19 and
Section 20 of the UA[P] Act and heard him on the point of sentence. The
charge-sheeted accused person, A-3 had thereafter, by an Order dated
Page 10 of 80
03.07.2019, been sentenced to undergo simple imprisonment of seven years
on each count and to pay a fine of Rs. 10,000/- on each count, in default of
payment of fine, to undergo simple imprisonment for six months on each
count. As the charge-sheeted accused person, A-3 had been in custody for
more than four years as on 03.07.2019, he was sent to jail to serve out the
sentences with the observation that the term of sentences shall stand set-off
with the period he had already undergone as an undertrial prisoner [UTP]. It
was further observed that the sentences shall run concurrently.
18. After framing of the charges on 19.09.2016, the examination of the
prosecution witnesses [P.W.s] started with the examination of the first
prosecution witness, P.W.1 on 16.11.2016. On 16.11.2016, two prosecution
witnesses [P.W.s] were examined, cross-examined and discharged. The
examination of the remaining prosecution witnesses [P.W.s] had continued
thereafter. It is relevant to mention herein that in the main charge-sheet and
the three supplementary charge-sheets, 124 nos. of prosecution witnesses
[P.W.s] are listed as witnesses by the prosecution to bring home the charges
against the accused persons, A-1 to A-2 and A-4 to A-9.
19. During the pendency of the trial, the eight appellants herein who are facing
the trial as A-1 to A-2 and A-4 to A-9 respectively, preferred the bail
application seeking bail in connection with Special NIA Case no. 2 of 2015
inter-alia on the grounds of their prolonged incarceration and the
unlikelihood of completion of the trial in the near future. The said application
was registered and numbered as Misc. [NIA] Case no. 27 of 2024. The bail
application, Misc. [NIA] Case no. 27 of 2024 was taken up for consideration
and after hearing the learned counsel for the parties, the learned Special
Court dismissed the bail application by the Order dated 20.03.2024, assailed
herein.
Page 11 of 80
20. We have heard Mr. A.K. Bhattacharyya, learned Senior Counsel assisted by
Mr. R. Dey and Mr. D.K. Bhattacharyya, learned counsel for the appellants;
and Mr. D.K. Das, learned Senior Counsel & Special Counsel, NIA assisted by
Mr. D. Bharadwaj and Ms. G. Acharjee, learned counsel for the respondent
NIA.
F. Submissions of the Appellants :-
21. Mr. Bhattacharyya, learned Senior Counsel appearing for the appellants has
submitted that the process of justice delivery in a criminal trial is governed by
three basic and crucial tenets of criminal jurisprudence, firstly, right to fair
trial; secondly, presumption of innocence [not guilty] until the
pronouncement of guilt; and thirdly, the prosecution must prove its case
beyond reasonable doubt and such burden of the prosecution never shifts.
Elaborating further on the right to fair trial, the learned Senior Counsel has
submitted that right to fair trial embraces within itself the right to speedy trial
for the accused, irrespective of the nature and gravity of the accusation
leveled against him. He has further submitted that in case of the appellants, it
is their prolonged incarceration after their arrest and a delayed trial, which
are factors germane to examine their right guaranteed under Article 21 of the
Constitution of India. Since the period of incarceration of each of the
appellants runs near about a decade, it is a case where their right of personal
liberty which includes the right to speedy trial is found to have been violated.
It has been further submitted that it is evident from the materials on record
that the progress of the trial is at a snail’s pace and it is demonstrable from
the nature of progress the trial has made till date. Pointing out that the
charges against the accused-appellants were framed as far back as on
19.09.2016, the prosecution has been, till date, able to examine less than half
from the nos. of witnesses listed in the Charge-Sheets, meaning thereby,
more than half of the listed witnesses are yet to be examined, which is a fact
clearly suggestive of a protracted trial. By specifically referring to the Charge-
Page 12 of 80
Sheets, it has been pointed out that the prosecution side in the Charge-
Sheets has listed a total of one hundred and twenty four nos. of persons
which they would examine as prosecution witnesses. But till date, the
prosecution side has completed examination of only fifty-nine nos. of
persons, out of them, as prosecution witnesses [P.W.s], who were duly cross-
examined, without any kind of delay, by the defence side. The learned Senior
Counsel has submitted that the earnestness of the prosecution side or rather
lack of it, is clearly decipherable from the fact that the official who had
passed the prosecution sanction order, was absent on a number of dates
showing pretexts, which were prima facie lame. Thus, the progress of the
trial cannot be termed as reasonable, fair and just to the accused-appellants
as due to slow progress of the trial, the period of incarceration has also got
inordinately prolonged.
21.1. It has been contended that it was a duty on the part of the learned Special
Court to examine the respective roles allegedly attributed to each of the
accused-appellants while considering their application for bail vis-à-vis the
restriction contained in sub-section [5] of Section 43D and the proviso thereto
of the UA[P] Act and the accused-appellants’ right to speedy trial. The
learned Senior Counsel has, however, fairly submitted that the prayer for bail
was mainly urged from the standpoint of the accused-appellants’ prolonged
custody. At the same time, the learned Senior Counsel has submitted that it is
incorrect on the part of the learned Special Court to observe that the matter
of consideration for bail in a case involving the provision of Section 43D [5] of
the UA[P] Act from the standpoint of Article 21 of the Constitution is the
exclusive preserve of the Constitutional courts. By not making an examination
of the respective roles of each of the accused-appellants in the alleged
incident with the nature of offences each of them has been charged with, the
learned Special Court had not examined the issue of bail qua the statutory
provision incorporated in Section 436A of the Code and Section 479 of the
BNSS, 2023. He has submitted that the spirit of Article 21 of the Constitution
Page 13 of 80
and the right to personal liberty of an accused is embedded in those
provisions also and the statutory prescription contained in these provisions is
mandatory in character. Thus, the learned Special Court ought to have
invoked those provisions also while considering the bail application, Misc.
[NIA] Case no. 27 of 2024. It has been contended on behalf of the appellants
that such consideration can be made notwithstanding the availability of
prima facie incriminating materials against the accused-appellants in the
Charge-Sheets and the consideration mainly focuses on the sentence which is
likely to be inflicted on an accused, if found guilty at the end of a fair trial.
21.2. In support of his submissions, Mr. Bhattacharyya has referred to the decisions
in [i] Hussainara Khatoon and others vs. Home Secretary, State of Bihar,
[1980] 1 SCC 81; [ii] Union of India vs. K.A. Najeeb, [2021] 3 SCC 713; [iii]
Javed Gulam Nabi Shaikh vs. State of Maharashtra and another, [2024] 9
SCC 813; and [iv] Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari vs.
State of Uttar Pradesh, 2024 INSC 534.
G. Submissions of the Respondent NIA :-
22. Mr. Das, learned Senior Counsel & Special Counsel, NIA has submitted that
the investigation revealed and established killing of thirty innocent Adivashi /
Southal people at Sonajuli village on 23.12.2014 and the materials included in
the Charge-Sheet and the three Supplementary Charge-Sheets submitted go
to indicate involvement of all the accused-appellants herein. By referring to
each of them, Mr. Das has submitted that the victims include a number of
females and child and the brutality of the incident can, therefore, be easily
gauged. The incident of death was a result of indiscriminate firing upon a
gathering of unarmed and peaceful villagers, without any concern for the
presence of females and children among them.
Page 14 of 80
22.1. During investigation, four injured persons were also identified and the medical
examination reports of these four persons showed that all of them were
injured grievously with bullet injury marks in their respective bodies. The
Post-Mortem Examination Reports of the thirty deceased persons had
revealed that they received a number of firearm / gunshot injuries on their
persons and the main cause of their death was shock and hemorrhage as a
result of such firearm / gunshot injuries, which were ante-mortem in nature.
The materials have clearly indicated that all these appellants were members
of the NDFB[S], a proscribed terrorist outfit under the UA[P] Act and a
conspiracy was hatched to commit a terrorist act by killing innocent Adivashi /
Southal people with an intent to strike terrors in the minds of targeted
sections of the communities inhabiting in the region.
22.2. Mr. Das has further submitted that during the investigation, the interceptions
of mobile phone conversations of many of these accused-appellants and other
cadres of the NDFB, which were intercepted lawfully, were taken into record
along with the respective Call Detail Records [CDRs] and the same had
revealed and established the matter of hatching of the conspiracy which
culminated into the incident on 23.12.2014. On the basis of the reports of
voice analysis by forensic experts, it has been established that the voice
samples belonged to few of the accused-appellants herein. During the course
of investigation and on the basis of disclosure made by the one of the
accused-appellants, namely, A-1, a huge cache of arms and ammunitions
along with other incriminating documents relating to the NDFB were
recovered under the provisions of Section 27, Evidence Act in presence of
independent witnesses. Empty Fired Cases [EFCs] were recovered by the
investigating team from the place of occurrence of the killing incident under
reference and the forensic examination reports of the Ballistic Experts had
established the linkage of the arms recovered under Section 27 of Evidence
Act with the incident. Investigation also unearthed materials indicating
involvements of the accused-appellants, A-5, A-6, A-7 and A-8 in the killing
Page 15 of 80
incident by firing from sophisticated arms, based on revelations of and
identification by eye-witnesses.
22.3. In so far as the allegation of delay in conclusion of the trial is concerned, Mr.
Das has submitted that the incident occurred at a very interior place and the
victims and the witnesses belonged to Adivashi / Southal community, who are
less privileged from every standpoint. One of the reasons for the delay is that
these Adivashi / Southal people move from one place to another for relocating
themselves to other places in the meantime without leaving much trace and
securing their presence in the ongoing trial has posed a number of difficulties.
Due to fear psychosis created by the incident of killing, many of them had
moved from the places, where they used to live at the time of incident. He
has submitted that in spite of these difficulties, the prosecution side has been
surmounting it by securing the appearance of the witnesses in the best
possible manner. Mr. Das has further submitted that every endeavour is being
made on behalf of the prosecution to adhere to the direction made in the
Order dated 04.04.2024 passed by the learned Special Court in Special NIA
Case no. 2 of 2015.
22.4. Mr. Das, learned Special Counsel, NIA to buttress his submissions, has relied
on the decisions in [i] State of Uttar Pradesh through CBI vs. Amarmani
Tripathi, [2005] 8 SCC 21; [ii] National Investigation Agency vs. Zahoor
Ahmad Shah Watali, [2019] 5 SCC 1 ; and [iii] Gurwinder Singh vs. State of
Punjab and another, 2024 INSC 92. According to Mr. Das, the decisions relied
upon by the appellants’ side, mentioned hereinabove, is distinguishable in as
much as the decisions do not involve commission of a terrorist act resulting in
the death of any person and the offences involved therein were of different
nature. The learned Special Counsel, NIA has submitted that both – speedy
trial and fair trial – are integral parts of Article 21. It has been contended by
him that each case of delay in conclusion of a criminal trial has to be seen in
the facts and circumstances of the case. It is his contention that the delay
Page 16 of 80
which has occurred in the case in hand, cannot be held to have
overshadowed the public interest, more particularly, the interest of the victims
in particular and the community in general. It has been submitted that the
appeal calls for no interference at this stage of the trial and it deserves to be
dismissed.
H. The restriction for granting bail in Section 43D [5], UA[P] Act :-
23. Whenever a question of granting bail or refusing bail in respect of an offence
punishable under Chapter IV and Chapter VI of the UA[P] Act arises for
consideration, the interpretation of the provisions of Section 43D [5] of the
UA[P] Act falls for consideration in view of the restriction contained therein.
For ready reference, the provisions of sub-section [1], sub-section [5] and
sub-section [6] of Section 43D of the UA[P] Act are quoted hereinbelow :-
43D. Modified application of certain provisions of the Code.-
[1] Notwithstanding anything contained in the Code or any other law,
every offence punishable under this Act shall be deemed to be a
cognizable offence within the meaning of clause [c] of section 2 of the
Code, and ‘cognizable case’ as defined in that clause shall be construed
accordingly.
[2] * * * * * * * *
[3] * * * * * * * *
[4] * * * * * * * *
[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 :
Page 17 of 80
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.
[6] The restrictions on granting of bail specified in sub-section [5] is in
addition to the restrictions under the Code or any other law for the time
being in force on granting of bail.
[7] * * * * * * * *
24. A perusal of sub-section [5] of Section 43D goes to indicate that
notwithstanding anything contained in the Code of Criminal Procedure, 1973
presently replaced by Bharatiya Nagarik Suraksha Sanhita, 2023 [‘the BNSS’],
no person accused of an offence punishable under Chapter IV [Punishment
for Terrorist Activities] and Chapter VI [Terrorist Organizations and
Individuals] 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. The proviso to sub-section [5] of Section 43D
has put a restriction on the powers of the Special Court to release an accused
on bail. A negative prescription to refuse bail to an accused person charged
with the offence[s] under Chapter IV and Chapter VI of the UA[P] Act is
contained in the proviso to the effect that if the Court, on 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
an accused person is prima facie true, then such an accused person shall not
be released on bail or on his own bond. Other than the offences falling under
the special acts like the UA[P] Act, the Narcotic Drugs and Psychotropic
Substances [NDPS] Act, 1985, the Prevention of Money Laundering Act
[PMLA], 2002, and others, the provision for bail for offences under the IndianPage 18 of 80
Penal Code in respect of non-bailable offences punishable with death or life
imprisonment is to be considered under the provisions of Section 439, CrPC.
The effect of Section 43D [5] of the UA[P] Act is that it has modified the
parameters of the general bail provisions in respect of offences punishable
under Chapter IV and Chapter VI of the UA[P] Act. It further appears that the
expression, ‘prima facie true’ is not incorporated as the parameter in any
other special act for grant of bail to an accused person.
I. The Order dated 20.03.2024 passed in Misc. [NIA] Case no. 27 of 2024 :-
25. While considering the application, Misc. [NIA] Case no. 27/2024 preferred by
the appellants seeking bail, the learned Special Court has found relevance in
the following observations made in the case of Zahoor Ahmad Shah Watali
[supra], :-
24. ….. 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.
* * * * * * * *
26. ….. once charges are framed, it would be safe to assume that a very
strong suspicion was founded upon the materials before the Court, which
prompted the Court to form a presumptive opinion as to the existence of
the factual ingredients constituting the offence alleged against the accused,
to justify the framing of charge. In that situation, the accused may have to
undertake an arduous task to satisfy the Court that despite the framing of
Page 19 of 80
charge, the materials presented along with the charge-sheet [report under
Section 173 CrPC], do not make out reasonable grounds for believing that
the accusation against him is prima facie true. Similar opinion is required to
be formed by the Court whilst considering the prayer for bail, made after
filing of the first report made under Section 173 of the Code, as in the
present case.
25.1. The learned Special Court has also placed reliance in the decision in Jayanta
Kumar Ghosh vs. State of Assam, reported in 2010 [6] GLR 727 , rendered by
a Division Bench of this Court wherefrom, according to a learned Special
Court, the following principles have emerged :-
i. The Special Court is required to examine the materials, collected
during investigation, assuming the same to be true and if, such materials
on such examination and consideration, are found to make out a case
against the accused, the Special Court has to determine if there is any
such thing in the materials, so collected, which would make the case which
has been made out against the accused, as a wholly improbable case.
ii. If the Special Court, on undertaking such an exercise, finds
reasonable grounds to infer that the case, which has been made out
against the accused, is not wholly improbable, the case would be treated
as a case, which is sufficient for the Special Court to form an opinion that
there are reasonable grounds to believe that the accusations made against
the accused, are prima facie true.
25.2. The learned Special Court has, thereafter, proceeded to observe as under :-
In terms of the Proviso to Section 43 D [5] of the UA[P] Act, as envisaged
in Jayanta Kumar Ghosh [supra], if the materials in the case diary /
statements and the Charge-Sheet are assumed to be true, such materials,
prima facie, do make out offences against the accused persons, inter aliaPage 20 of 80
under Section 16 / 18 / 20 of the UA[P] Act in view of the material on record
adverted to hereinabove. A detailed evaluation of the materials against
each of the 8 [eight] accused persons need not be reflected herein,
particularly since the same have not been canvassed at the bar, the
emphasis being on delayed trial and lengthy detention.
Now, going further, in terms of the test devised by the Hon’ble High Court
in the aforesaid judgment in Jayanta Kumar Ghosh [supra], upon perusal
of the materials in the case diary and the Charge-Sheet, I do not find
anything therein that makes the case against the aforementioned accused
persons wholly improbable.
Thus, in the aforesaid facts and circumstances, upon perusal of the case
diary and the Charge-Sheet against the accused persons, the Court comes
to the considered opinion that there are reasonable grounds for believing
that the accusations against the said accused persons are prima facie true.
Consequently, in terms of the mandate of the said proviso to Section 43 D
[5] of the UA[P] Act, once such an opinion is reached, the Special Court is
barred from granting bail to the accused, irrespective of the other aspects
of merit or otherwise of the Bail Petition of the accused.
25.3. On the grounds urged for releasing the appellants on bail from the
standpoints of delayed trial and lengthy detention, the learned Special Court
after referring to the decision in Union of India vs. K.A. Najeeb, [2021] 3 SCC
713, has proceeded to observe as under :-
It is thus clear from the above that it is the exclusive preserve of the
Constitutional Courts to grant bail in a case of this nature where the
provision of Section 43 D [5] of the UA[P] Act is attracted and therefore
such a power cannot be exercised by the Special Court, regardless of the
inclination of this Court in the given facts and circumstances of the case.
Page 21 of 80
J. The provision for appeal in Section 21 [4], NIA Act :-
26. Section 21 of the NIA Act has provided for appeals in the following manner :-
21. Appeals.–
[1] Notwithstanding anything contained in the Code, an appeal shall lie
from any judgment, sentence or order, not being an interlocutory order, of a
Special Court to the High Court both on facts and on law.
[2] Every appeal under sub-section [1] shall be heard by a bench of two
Judges of the High Court and shall, as far as possible, be disposed of
within a period of three months from the date of admission of the appeal.
[3] Except as aforesaid, no appeal or revision shall lie to any court from
any judgment, sentence or order including an interlocutory order of a
Special Court.
[4] Notwithstanding anything contained in sub-section [3] of section 378 of
the Code, an appeal shall lie to the High Court against an order of the
Special Court granting or refusing bail.
[5] Every appeal under this section shall be preferred within a period of
thirty days from the date of the judgment, sentence or order appealed from:
Provided that the High Court may entertain an appeal after the expiry of the
said period of thirty days if it is satisfied that the appellant had sufficient
cause for not preferring the appeal within the period of thirty days :
Provided further that no appeal shall be entertained after the expiry of
period of ninety daysPage 22 of 80
27. It is settled that an order granting or refusing bail is otherwise, an
interlocutory order. A combined reading of all the provisions of Section 21 of
the NIA Act makes it clear that it is only the interlocutory order either
granting bail or refusing bail, and no other interlocutory orders passed by the
Special Court, designated under the NIA Act, which is made appealable. The
thought behind having the provision of preferring an appeal against an
interlocutory order of granting or refusing bail can, perhaps, be traceable to
its association with the right of personal liberty of an accused, embedded in
Article 21 of the Constitution of India, whose such right can be curtailed by
his detention in custody. By specifically vesting the appellate jurisdiction on
the High Court under Section 21 [4] of the NIA Act to decide an appeal
arising out of an order passed by the designated Special Court in an
interlocutory application either grating bail or refusing bail by a Bench of two
Judges, the NIA Act has impliedly removed the original jurisdiction under
Section 439 of the Code to decide an interlocutory order of either granting
bail or refusing bail, which is ordinarily decided by a Single Judge of the High
Court. The version being that the High Court under the special statute cannot
be vested with an appellate jurisdiction and also the original jurisdiction in
respect of the same subject-matter, namely, grant or refusal of bail, as that
would create an anomalous situation [Ref : State of Andhra Pradesh through
the Inspector General, National Investigation Agency vs. Mohd. Hussain
alias Sallem, [2014] 1 SCC 258].
28. It is trite that the appellate jurisdiction is co-extensive with the original court’s
jurisdiction as far as appraisal and appreciation of the materials is concerned
but, at the same time, the appellate court is free to reach its own findings
independent of the findings reached by the court exercising the original
jurisdiction. An appeal is also considered to be continuation of the original
proceedings and the appellate court would have the power to review, subject
albeit to the statutory limitations, if any, prescribed. It is beneficial for an
appellate court to exercise its appellate jurisdiction if it has the assessment
and the reasons recorded by the original court before it while deciding an
Page 23 of 80
appeal, that is, the Special Court in the case in hand. The primary duty of the
appellate court is either to affirm the views expressed in its order by the
Special Court or not to agree with those views, prior to recording its own
views. It can be seen from the provisions contained in Section 43D [5] and
the proviso thereto that a restriction has been placed on the powers of the
Special Court to release an accused on bail unless it is of the opinion, on
perusal of the case diary or the report made under Section 173 of the Code,
that there are reasonable grounds for believing that the accusation against
the accused person is not prima facie true. Giving of reasons, however brief
it may be, is one of the fundamental principles in the justice delivery system
as recording of reasons is indicative of application of mind to the issue before
the judicial forum, manned by a trained judicial mind. In the present case,
while rendering the decision in the bail application of the appellants, Misc.
[NIA] Case no. 27 of 2024, the learned Special Court seemed to have made a
cursory look at the Charge-Sheets and the materials presented along with
them to find out about existence of a prima facie case and appeared to have
been swayed by the fact that the appellants had pressed the application for
bail giving more stress on the points of delayed trial and their prolonged
incarceration having an effect on their personal liberty, rather than on the
point of non-existence of a prima facie case. As indicated in the Order dated
20.03.2024 itself, the learned Special Court had refrained itself from making a
detailed evaluation of the materials against each of the eight accused persons
in the Order appealed from. As a result, this Court is deprived of the
opportunity to look at the analysis of the learned Special Court on the
Charge-Sheets and the materials presented along with them by the
prosecuting agency as well as of its reasonings. For the very same reason,
the roles attributable to each of the appellants in the conspiracy, alleged to
have been hatched preceding, attending and succeeding to the incident dated
23.12.2014, do not get reflected in the said Order.
K. Existence or otherwise of ‘a prima facie case’ :-
Page 24 of 80
29. It stands reiterated, at the cost of repetition, that as per the proviso to sub-
section [5] of Section 43D of the UA[P] Act, an accused person shall not be
released on bail 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.
30. In Zahoor Ahmad Shah Watali [supra], the Hon’ble Supreme Court has taken
note of existence of the bar contained in other special enactments like the
Terrorist and Disruptive Activities [Prevention] [TADA] Act, 1987; the
Maharashtra Control of Organised Crime Act [MCOCA], 1999; the Narcotics
Drugs and Psychotropic Substances [NDPAS] Act, 1985, etc. where for grant
of bail, the Court is required to record its opinion on the point whether there
are reasonable grounds for believing that the accused is ‘not guilty’ of the
alleged offence qua the condition in the UA[P] Act where the Court has to
reach a finding that there are reasonable grounds for believing that the
accusation against such an accused person is prima facie true. The Hon’ble in
that context has observed as follows :-
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. ……..
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,
Page 25 of 80
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. …….
* * * * * * * *
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.
* * * * * * * *
26. Be it noted that the special provision, Section 43-D of the 1967 Act,
applies right from the stage of registration of FIR for the offences under
Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof.
To wit, soon after the arrest of the accused on the basis of the FIR
registered against him, but before filing of the charge-sheet by the
investigating agency; after filing of the first charge-sheet and before the
filing of the supplementary or final charge-sheet consequent to further
Page 26 of 80
investigation under Section 173[8] CrPC, until framing of the charges or
after framing of the charges by the Court and recording of evidence of key
witnesses, etc. However, once charges are framed, it would be safe to
assume that a very strong suspicion was founded upon the materials
before the Court, which prompted the Court to form a presumptive opinion
as to the existence of the factual ingredients constituting the offence
alleged against the accused, to justify the framing of charge. In that
situation, the accused may have to undertake an arduous task to satisfy
the Court that despite the framing of charge, the materials presented along
with the charge-sheet [report under Section 173 CrPC], do not make out
reasonable grounds for believing that the accusation against him is prima
facie true. Similar opinion is required to be formed by the Court whilst
considering the prayer for bail, made after filing of the first report made
under Section 173 of the Code, as in the present case.
27. For that, the totality of the material gathered by the investigating
agency and presented along with the report and including the case diary, is
required to be reckoned and not by analysing individual pieces of evidence
or circumstance. In any case, the question of discarding the document at
this stage, on the ground of being inadmissible in evidence, is not
permissible. For, the issue of admissibility of the document/evidence would
be a matter for trial. The Court must look at the contents of the document
and take such document into account as it is.
31. The appellant in Gurwinder Singh vs. State of Punjab and another, 2024
INSC 92, decided on 07.02.2024, sought regular bail in a NIA case registered
under Sections 124A, 153A, 153B & 120B of the IPC; and under Sections 17,
18 & 19 of the UA[P] Act; and Sections 25 & 54 of the Arms Act. After
rejection of the appellant’s bail application by the learned Special Judge, NIA
Court under Section 439, CrPC on 16.12.2021, the High Court also rejected
his bail prayer on 24.04.2023. The prosecution case, in brief, was that after
finding two persons hanging banners with writings, ‘Khalistan Zindabad’ and
Page 27 of 80
‘Khalistan Referendum 2020’ they were arrested. In the course of
investigation, entire module of the banned terrorist organization, ‘Sikhs for
justice’ was busted and a number of accused persons including the appellant,
were arrested. After investigation, the charge-sheet was submitted on
16.04.2019 against eleven accused persons. Thereafter, investigation was
transferred to the NIA and in the NIA investigation, it was revealed that the
accused persons had received funds from the banned terrorist organization,
‘Sikhs for justice’ through illegal means for furthering the separatist ideology
of demanding a separate state for Sikhs called ‘Khalistan’ and to carry out
terror activities and other preparatory acts like attempts to procure weapons
to spread terror in India. Involvement of an ISI handler was also found out.
31.1. Discussing the scope and ambit of the restriction contained in Section 43D [5]
of the UA[P] Act, the Hon’ble Supreme Court in Gurwinder Singh [supra] has
observed as under :-
16. The source of the power to grant bail in respect of non-bailable
offences punishable with death or life imprisonment emanates from Section
439 CrPC. It can be noticed that Section 43D [5] of the UAP Act modifies
the application of the general bail provisions in respect of offences
punishable under Chapter IV and Chapter VI of the UAP Act.
17. 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,Page 28 of 80
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.
18. 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.
19. 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’. ……
20. In this background, the test for rejection of bail is quite plain. Bail
must be rejected as a ‘rule’, if after hearing the Public Prosecutor and after
perusing the final report or case diary, the Court arrives at a conclusion that
there are reasonable grounds for believing that the accusations are prima
Page 29 of 80
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.
21. On a textual reading of Section 43D [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’]? On a consideration of
various factors such as nature of offence, length of punishment [if
convicted], age, character, status of accused etc., the Courts must ask
itself; [2.1] Whether the accused is a flight risk?; [2.2] Whether there is
apprehension of the accused tampering with the evidence?; [2.3] Whether
there is apprehension of accused influencing witnesses?
22. The question of entering the ‘second test’ of the inquiry will not arise
if the ‘first test’ is satisfied. And merely because the first test is satisfied,
that does not mean however that the accused is automatically entitled to
bail. The accused will have to show that he successfully passes the ‘tripod
test’.
32. The proposition that emerges qua the restrictions imposed in the proviso to
Section 43D [5] of the UA[P] Act is that if the Court, on perusal of the case
diary or the report made under Section 173 of the Code of Criminal
Page 30 of 80
Procedure, 1973 reaches an opinion that 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. As per the decision in Zahoor Ahmad Shah Watali [supra], once
charges are framed, it would be safe to assume that a very strong suspicion
was founded upon the materials before the Court, which prompted the Court
to form a presumptive opinion as to the existence of the factual ingredients
constituting the offence alleged against the accused, to justify the framing of
charge. In that situation, the accused may have to undertake a tougher task
to satisfy the Court that despite the framing of charge, the materials
presented along with the charge-sheet under Section 173[2], CrPC do not
make out reasonable grounds for believing that the accusation against him is
prima facie true.
33. Keeping the afore-stated parameters in view and for the reason that the
learned Special Court in the case in hand, did not undertake the task to
discuss the materials in detail presented along with the Charge-Sheets against
each of the appellants on the premise that the appellants had pressed more
on the aspect of violations of their rights to have a speedy trial, it is necessary
to have an analysis on the broad probabilities of the prosecution’s case as
emerging from the Charge-Sheets and the materials presented along with
them to find out whether there are reasonable grounds for believing that the
accusations against the appellants as regards commission of offence or
offences under Chapter IV and / or Chapter VI of the UAP Act are prima facie
true and we propose to do so in the later part of this order.
L. The plea of prolonged incarceration and the right to speedy trial.
34. Raising the ground for release of the appellants on bail in view of their
prolonged incarceration and a delayed trial, reliance has been placed in a
Page 31 of 80
number of decisions, already mentioned hereinabove. It appears apt to find
out the factual background of the cases in those decisions and the
observations made by the Hon’ble Supreme Court in those cases.
35. The decision in Javed Gulam Nabi Shaikh [supra] has been rendered in an
appeal which arose from an order passed by the High Court whereby the High
Court declined to release the appellant on bail in connection with his
prosecution under the provisions of the UA[P] Act. The appellant therein was
in custody for about four years. The appellant was apprehended on the basis
of some secret information and the appellant was found carrying a bag
containing 1193 nos. of counterfeit Indian currency notes of denomination of
Rs. 2,000/-. The case of the prosecution was that the consignment of the
counterfeit notes was smuggled from Pakistan to Mumbai. The investigation
was ultimately taken over by the NIA. Investigation by the NIA revealed that
the appellant received the counterfeit notes in Dubai and two co-accused
persons were arrested in connection with the same offence and both were
granted bail. The Hon’ble Supreme Court has expressed to exercise the
discretion in favour of the appellant keeping in mind the following aspects :-
‘[i] the appellant is in jail as an under-trial prisoner past four years; [ii] till this
date, the trial court has not been able to even proceed to frame the charge;
and [iii] as pointed out by counsel appearing for the State as well as NIA, the
prosecution intends to examine not less than eighty witnesses’.
35.1. The Hon’ble Supreme Court in Javed Gulam Nabi Shaikh [supra], decided
on 03.07.2024, after referring to a number of previous decisions including
K.A. Najeeb [supra], has proceeded to observe as under :-
19. If the State or any prosecuting agency including the court concerned
has no wherewithal to provide or protect the fundamental right of an
accused to have a speedy trial as enshrined under Article 21 of the
Constitution then the State or any other prosecuting agency should notPage 32 of 80
oppose the plea for bail on the ground that the crime committed is serious.
Article 21 of the Constitution applies irrespective of the nature of the crime.
20. We may hasten to add that the petitioner is still an accused; not a
convict. The over-arching postulate of criminal jurisprudence that an
accused is presumed to be innocent until proven guilty cannot be brushed
aside lightly, howsoever stringent the penal law may be.
21. We are convinced that the manner in which the prosecuting agency
as well as the Court have proceeded, the right of the accused to have a
speedy trial could be said to have been infringed thereby violating Article
21 of the Constitution.
36. In Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari [supra], the appeal
was directed against an Order dated 03.04.2023 passed by the High Court
whereby the bail application of the appellant, filed under Section 439 of the
Code, was rejected. The allegations against the appellant, arrested on
23.02.2015, were registered under Section 489B and Section 489C of the IPC
and under Section 16 of the UA[P] Act. Fake Indian currency notes of the
denomination of Rs. 1,000/- and Rs. 500/-, totaling a sum of Rs. 26,03,500/-,
were recovered from the possession of the appellant at Indo-Nepal border. In
addition, one Nepalese driving licence and one Nepalese citizenship certificate
of the appellant were also recovered. The prosecution had brought allegation
that the appellant was engaged in the illegal trade of supplying counterfeit
Indian currency notes in Nepal. The charge-sheet and a supplementary
charge-sheet were filed against the appellant for the offences under Section
489B & Section 489C of the IPC and Section 16 of the UA[P] Act. Due to
protracted trial, the appellant spent nine years in custody and evidence of
only two witnesses were recorded when queried, the State counsel could not
apprise the Court about the remaining nos. of witnesses to be examined. The
Hon’ble Court examined the effect of a terrorist act from circulation of high
Page 33 of 80
quality counterfeit Indian paper currency and the damage to be caused to the
monetary stability of the country and the punishment prescribed in Section 16
of the UA[P] Act provided for such kind of offence.
36.1. The Hon’ble Supreme Court in Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed
Ansari [supra] after analyzing the precedents including Javed Gulam Nabi
Shaikh [supra], Gurwinder Singh [supra], and K.A. Najeeb [supra], has
inter-alia has observed as under :-
22. It is trite law that an accused is entitled to a speedy trial. This Court in
a catena of judgments has held that an accused or an undertrial has a
fundamental right to speedy trial which is traceable to Article 21 of the
Constitution of India. If the alleged offence is a serious one, it is all the
more necessary for the prosecution to ensure that the trial is concluded
expeditiously. When a trial gets prolonged, it is not open to the prosecution
to oppose bail of the accused-undertrial on the ground that the charges are
very serious. Bail cannot be denied only on the ground that the charges are
very serious though there is no end in sight for the trial to conclude.
* * * * * *
31. In Gurwinder Singh [supra] on which reliance has been placed by the
respondent, a two Judge Bench of this Court distinguished K.A.
Najeeb [supra] holding that the appellant in K.A. Najeeb [supra] was in
custody for five years and that the trial of the appellant in that case was
severed from the other co-accused whose trial had concluded whereupon
they were sentenced to imprisonment of eight years; but in Gurwinder
Singh, the trial was already underway and that twenty two witnesses
including the protected witnesses have been examined. It was in that
context, the two-Judge Bench of this Court in Gurwinder Singh observed
that mere delay in trial pertaining to grave offences cannot be used as a
ground to grant bail.
Page 34 of 80
32. This Court has, time and again, emphasized that right to life and
personal liberty enshrined under Article 21 of the Constitution of India is
overarching and sacrosanct. A constitutional court cannot be restrained
from granting bail to an accused on account of restrictive statutory
provisions in a penal statute if it finds that the right of the accused-
undertrial under Article 21 of the Constitution of India has been infringed. In
that event, such statutory restrictions would not come in the way. Even in
the case of interpretation of a penal statute, howsoever stringent it may be,
a constitutional court has to lean in favour of constitutionalism and the rule
of law of which liberty is an intrinsic part. In the given facts of a particular
case, a constitutional court may decline to grant bail. But it would be very
wrong to say that under a particular statute, bail cannot be granted. It
would run counter to the very grain of our constitutional jurisprudence. In
any view of the matter, K.A. Najeeb [supra] being rendered by a three
Judge Bench is binding on a Bench of two Judges like us.
33. Thus, having regard to the discussions made above, we are of the
considered view that continued incarceration of the appellant cannot be
justified. We are, therefore, inclined to grant bail to the appellant.
37. All the above three decisions have referred to K.A. Najeeb [supra]. The
decision in K.A. Najeeb [supra], was rendered in an appeal preferred by the
Union of India through the NIA against an order of the High Court whereby
bail was granted to the respondent, K.A. Najeeb in a case involving offences
under Sections 143, 147, 148, 120B, 341, 427, 323, 326, 506[H], 201, 202,
153A, 212, 307 and 149 of the IPC, Section 3 of the Explosive Substances Act
and Sections 16, 18, 18B, 19 and 20 of the UA[P] Act. The prosecution case,
in brief, was that a Professor along with his mother and sister was attacked
by a group of people allegedly for framing a question in a B.Com. Examination
which was considered objectionable against a particular religion by a certain
sections of society. In the incident, right palm of the Professor was chopped-
Page 35 of 80
off with choppers, knives, and a small axe and country made bombs were also
hurled at by-standers to create panic and terror. The attack was found to be a
part of a larger conspiracy involving meticulous pre-planning, numerous failed
attempts and use of dangerous weapon. The appellant was found to be one
of the main conspirators but he was declared an absconder because of his un-
traceability. After splitting the trial against him, the trial proceeded against the
rest of his co-conspirators and most of them were found guilty by the Special
Court in its Judgment dated 30.04.2015 and were awarded cumulative
sentence ranging between two and eight years rigorous punishment. The
respondent could be arrested on 10.04.2015 finally. At the time of preferring
the appeal, the respondent was facing trial and his applications were rejected
on six occasions by that time. Though the respondents spent about five and a
half years in custody, the trial against him did not begin. It was argued that
protracted incarceration had violated the respondents’ right to speedy trial
and access to justice. The High Court did not determine the likelihood of the
respondent being guilty or not, or whether rigours Section 43D [5] of the
UA[P] Act would be alien to him. The High Court appeared to have exercised
its power to grant bail owing to the long period of incarceration and the
unlikelihood of the trial being completed any time in the near future. The
reasons assigned by the High Court were found traceable to Article 21 of the
Constitution, without addressing the statutory embargo created by Section
43D [5] of the UA[P] Act.
37.1. It was in the afore-mentioned backdrop, the Hon’ble Supreme Court has
observed in the following manner :-
14. The facts of the instant case are more egregious than these two
above-cited instances. Not only has the respondent been in jail for much
more than five years, but there are 276 witnesses left to be examined.
Charges have been framed only on 27.11.2020. Still further, two
opportunities were given to the appellant NIA who has shown no inclination
Page 36 of 80
to screen its endless list of witnesses. It also deserves mention that of the
thirteen co-accused who have been convicted, none have been given a
sentence of more than eight years’ rigorous imprisonment. It can, therefore,
be legitimately expected that if found guilty, the respondent too would
receive a sentence within the same ballpark. Given that two-third of such
incarceration is already complete, it appears that the respondent has
already paid heavily for his acts of fleeing from justice.
15. This Court has clarified in numerous judgments that the liberty
guaranteed by Part III of the Constitution would cover within its protective
ambit not only due procedure and fairness but also access to justice and a
speedy trial. In Supreme Court Legal Aid Committee [Representing
Undertrial Prisoners] vs. Union of India [Supreme Court Legal Aid
Committee [Representing Undertrial Prisoners] vs. Union of India, [1994] 6
SCC 731, para 15], it was held that undertrials cannot indefinitely be
detained pending trial. Ideally, no person ought to suffer adverse
consequences of his acts unless the same is established before a neutral
arbiter. However, owing to the practicalities of real life where to secure an
effective trial and to ameliorate the risk to society in case a potential
criminal is left at large pending trial, the courts are tasked with deciding
whether an individual ought to be released pending trial or not. Once it is
obvious that a timely trial would not be possible and the accused has
suffered incarceration for a significant period of time, the courts would
ordinarily be obligated to enlarge them on bail.
16. As regards the judgment in NIA vs. Zahoor Ahmad Shah
Watali [NIA vs. Zahoor Ahmad Shah Watali, [2019] 5 SCC 1], cited by the
learned ASG, we find that it dealt with an entirely different factual matrix. In
that case, the High Court [Zahoor Ahmad Shah Watali vs. NIA, 2018 SCC
OnLine Del 11185] had reappreciated the entire evidence on record to
overturn the Special Court’s conclusion of there being a prima facie case of
conviction and concomitant rejection of bail. The High Court had practically
Page 37 of 80
conducted a mini-trial and determined admissibility of certain evidence,
which exceeded the limited scope of a bail petition. This not only was
beyond the statutory mandate of a prima facie assessment under Section
43-D [5], but it was premature and possibly would have prejudiced the trial
itself. It was in these circumstances that this Court intervened and
cancelled the bail.
17. It is thus clear to us that the presence of statutory restrictions like
Section 43-D [5] of the UAPA per se does not oust the ability of the
constitutional courts to grant bail on grounds of violation of Part III of the
Constitution. Indeed, both the restrictions under a statute as well as the
powers exercisable under constitutional jurisdiction can be well
harmonised. Whereas at commencement of proceedings, the courts are
expected to appreciate the legislative policy against grant of bail but the
rigours of such provisions will melt down where there is no likelihood of trial
being completed within a reasonable time and the period of incarceration
already undergone has exceeded a substantial part of the prescribed
sentence. Such an approach would safeguard against the possibility of
provisions like Section 43-D[5] of the UAPA being used as the sole metric
for denial of bail or for wholesale breach of constitutional right to speedy
trial.
18. 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
Page 38 of 80
respondent’s rights guaranteed under Part III of our Constitution have been
well protected.
19. Yet another reason which persuades us to enlarge the respondent on
bail is that Section 43-D[5] of the UAPA is comparatively less stringent than
Section 37 of the NDPS Act. Unlike the NDPS Act 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 UAPA. Instead, Section 43-D [5] of the UAPA merely
provides another possible ground for the competent court to refuse bail, in
addition to the well-settled 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.
M. Article 21 of the Constitution; the right to speedy trial & the statutory
frame work for speedy trial :-
38. Article 21 of the Constitution of India has asseverated the fundamental right
that no person shall be deprived of his life or personal liberty except according
to procedure established by law.
39. That an accused has the right to speedy trial under Article 21 of the
Constitution is traceable to the decision in Hussainara Khatoon and others [I]
[supra]. The writ petition in Hussainara Khatoon and others [I] [supra] was
filed for a writ of habeas corpus disclosing a shocking state of affairs in the
State of Bihar where alarmingly large number of men and women, including
children, were behind prison bars for years awaiting trial in course of law. The
offences with which some of them were charged were trivial, which, even if
proved, did not warrant punishment for more than a few months, perhaps for
a year or two. Yet, they were in jail for periods ranging from three to ten
years without their trials having commenced. It was in such backdrop, the
Hon’ble Supreme Court had considered whether expeditious trial and freedomPage 39 of 80
from detention were part of human rights and basic freedoms. The Hon’ble
Supreme Court has observed that though speedy trial is not specifically
enumerated as a fundamental right, it is implicit in the broad sweep and
content of Article 21. After referring to the decision in Maneka Gandhi vs.
Union of India, [1970] 1 SCC 248, the Hon’ble Supreme Court has observedthat if a person is deprived of his liberty under a procedure which is not
‘reasonable, fair or just’, such deprivation would be violative of his
fundamental right under Article 21 and he would be entitled to enforce such
fundamental right and secure his release. No procedure which does not
ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’
and the same would fall foul of Article 21. A speedy trial has been interpreted
to be a reasonably expeditious trial and it is held to be an integral and
essential part of the fundamental right to life and liberty enshrined in Article
21 of the Constitution of India. A question has been posed therein as to what
would be the consequence, if a person accused of an offence is denied speedy
trial and is sought to be deprived of his liberty by imprisonment as a result of
a long delayed trial in violation of his fundamental right under Article 21.
40. The right to expeditious trial of an accused is imbibed in the process of justice
dispensation and an expeditious trial is one of the main objectives of the
criminal justice delivery system, because, long delay in conclusion of a
criminal trial might not only cause prejudice to the accused but it has also the
propensity to cause prejudice to the other participants in the criminal trial like
the victims and the witnesses. The concept of expeditious trial is based on the
principle that an innocent person, suspected to have committed an offence,
should not be harassed for an unduly long period and also at the same time, a
victim should get justice as early as possible by way of an expeditious trial,
which is ‘reasonable, fair or just’.
41. There have been various provisions in the Code of Criminal Procedure, 1973
and also in the Bharatiya Nagarik Suraksha Sanhita, 2023 [‘the BNSS’] forPage 40 of 80
ensuring expeditious trial. For example, Section 309, CrPC and presently,
Section 346, BNSS have inter-alia provided that in every inquiry or trial, the
proceedings shall be continued from day-to-day basis until all the witnesses in
attendance have been examined. Provision has been incorporated to the
effect that when witnesses are in attendance, no adjournment or
postponement shall be granted, without examining them, except for special
reasons to be recorded in writing. The special enactment, namely, the NIA Act
has incorporated a provision in Section 19 to the effect that a trial by the
Special Court would have precedence. It has been prescribed in Section 19 of
the NIA Act that a trial under the NIA Act of any offence by a Special Court
shall be held on day-to-day basis on all working days; and such trial shall
have precedence over the trial of any other case against the accused in any
other Court [not being a Special Court]; and shall be concluded in preference
to the trial of such other case and accordingly, the trial of such other case
shall, if necessary, remain in abeyance.
42. The reason for incorporation of a provision like Section 436A in the CrPC and
a similar provision in Section 479 in the BNSS, which had / has provided for
the maximum period for which an undertrial prisoner can be detained, is
traceable to the right to expeditious trial, flowing out of Article 21 of the
Constitution of India. The said statutory provisions have provided inter-alia to
the effect that where a person has, during the period of investigation, inquiry
or trial under the CrPC / the BNSS of an offence under any law [not being an
offence for which the punishment of death or life imprisonment has been
specified as one of the punishments under that law], undergone detention for
a period extending upto one-half of the maximum period of imprisonment
specified for that offence under that law, he shall be released by the Court on
bail. In Satender Kumar Antil vs. Central Bureau of Investigation and
another, [2022] 10 SCC 51, it has been observed that the provision containedin Section 436A of the Code would apply to the special acts like the NDPS Act,
the PMLA Act or the UA[P] Act. The Hon’ble Supreme Court has, however, notPage 41 of 80
dealt with the individual enactments as each such special act has got an
objective behind it, followed by the rigour imposed for grant of bail.
43. It has also been a matter of debate whether prolonged custody as an
undertrial prisoner/accused, notwithstanding the offence or the offences with
which the undertrial prisoner/accused is charged with in the trial, is itself a
sufficient ground to hold that he has been deprived of the right to personal
liberty.
44. Sub-section [6] of Section 43D of the UA[P] Act has laid down that the
restrictions on granting on bail specified in sub-section [5] of Section 43
D of the UA[P] Act is in addition to the restrictions under the Code or any
other law for the time being in force on granting of bail. It was Section 439 of
the Code and Section 483 of the BNSS which had / has vested special powers
on the High Court or the Court of Session to direct inter-alia that any person
accused of an offence and in custody be released on bail, notwithstanding the
offence is punishable with death or life imprisonment, by imposing any
condition which is considered necessary, including the conditions mentioned
in sub-section [3] of Section 437 of the Code / sub-section [3] of Section 480
of the BNSS.
45. In Ram Govind Upadhyay vs. Sudarshan Singh, [2002] 3 SCC 598, it has
been observed that grant of bail though being a discretionary order, but it
calls for exercise of such discretion in a judicious manner and not as a matter
of course. The grant of bail is dependent upon the contextual facts of the
matter. The nature of the offence is one of the basic considerations for the
grant of bail — more heinous is the crime, the greater is the chance of
rejection of the bail. It has further observed that every case is dependent on
the factual matrix of the matter. It has proceeded to observe in the following
manner :-
Page 42 of 80
4. Apart from the above, certain other which may be attributed to be
relevant considerations may also be noticed at this juncture, though
however, the same are only illustrative and not exhaustive, neither there
can be any. The considerations being :
[a] While granting bail the court has to keep in mind not only the nature
of the accusations, but the severity of the punishment, if the accusation
entails a conviction and the nature of evidence in support of the
accusations.
[b] Reasonable apprehensions of the witnesses being tampered with or
the apprehension of there being a threat for the complainant should also
weigh with the court in the matter of grant of bail.
[c] While it is not expected to have the entire evidence establishing the
guilt of the accused beyond reasonable doubt but there ought always to be
a prima facie satisfaction of the court in support of the charge.
[d] Frivolity in prosecution should always be considered and it is only
the element of genuineness that shall have to be considered in the matter
of grant of bail, and in the event of there being some doubt as to the
genuineness of the prosecution, in the normal course of events, the
accused is entitled to an order of bail.
While laying the above propositions, it has also followed a decision in Prahlad
Singh Bhati vs. NCT, Delhi, [2001] 4 SCC 280.
46. The matters which are required to be considered in an application for bail
have been considered in the decision in Amarmani Tripathi [supra] in
Paragraph 18 in the following manner :-
18. It is well settled that the matters to be considered in an application for
bail are [i] whether there is any prima facie or reasonable ground to believe
that the accused had committed the offence; [ii] nature and gravity of the
charge; [iii] severity of the punishment in the event of conviction; [iv] danger
of the accused absconding or fleeing, if released on bail; [v] character,Page 43 of 80
behaviour, means, position and standing of the accused; [vi] likelihood of
the offence being repeated; [vii] reasonable apprehension of the witnesses
being tampered with; and [viii] danger, of course, of justice being thwarted
by grant of bail [see : Prahlad Singh Bhati vs. NCT, Delhi, [2001] 4 SCC
280; and Gurcharan Singh vs. State [Delhi Admn.], [1978] 1 SCC 118].
While a vague allegation that the accused may tamper with the evidence or
witnesses may not be a ground to refuse bail, if the accused is of such
character that his mere presence at large would intimidate the witnesses or
if there is material to show that he will use his liberty to subvert justice or
tamper with the evidence, then bail will be refused. We may also refer to
the following principles relating to grant or refusal of bail stated in Kalyan
Chandra Sarkar vs. Rajesh Ranjan, [2004] 7 SCC 528,
11. The law in regard to grant or refusal of bail is very well
settled. The court granting bail should exercise its discretion in
a judicious manner and not as a matter of course. Though at
the stage of granting bail a detailed examination of evidence
and elaborate documentation of the merit of the case need not
be undertaken, there is a need to indicate in such orders
reasons for prima facie concluding why bail was being granted
particularly where the accused is charged of having committed
a serious offence. Any order devoid of such reasons would
suffer from non-application of mind. It is also necessary for the
court granting bail to consider among other circumstances, the
following factors also before granting bail; they are :
[a] The nature of accusation and the severity of punishment in
case of conviction and the nature of supporting evidence.
[b] Reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant.
[c] Prima facie satisfaction of the court in support of the
charge.
Page 44 of 80
[See : Ram Govind Upadhyay vs. Sudarshan Singh, [2002] 3
SCC 598; and Puran vs. Rambilas, [2001] 6 SCC 33]
47. While explaining what is judicial discretion, Hon’ble Justice Krishna Iyer in
Gudikanti Narasimhulu vs. Public Prosecutor, High Court of A.P., reportedin [1978] 1 SCC 240, has underlined the factors to be relevant while exercising
the discretionary power in a matter of bail, :-
7. It is thus obvious that the nature of the charge is the vital factor and the
nature of the evidence also is pertinent. The punishment to which the party
may be liable, if convicted or conviction is confirmed, also bears upon the
issue.
8. Another relevant factor is as to whether the course of justice would be
thwarted by him who seeks the benignant jurisdiction of the Court to be
freed for the time being.
* * * * * * * *
10. The significance and sweep of Article 21 make the deprivation of
liberty a matter of grave concern and permissible only when the law
authorising it is reasonable, even-handed and geared to the goals of
community good and State necessity spelt out in Article 19. Indeed, the
considerations I have set out as criteria are germane to the constitutional
proposition I have deduced. Reasonableness postulates intelligent care
and predicates that deprivation of freedom by refusal of bail is not for
punitive purpose but for the bi-focal interests of justice — to the individual
involved and society affected.
48. In Rajesh Ranjan Yadav vs. Central Bureau of Investigation, [2007] 1 SCC 70,
the Hon’ble Supreme Court while acknowledging that Article 21 is of great
importance because it enshrines the fundamental right to individual liberty,Page 45 of 80
has held that at the same time, a balance has to be struck between the right
to individual liberty and the interest of society. It has been held that no right
can be absolute, and reasonable restrictions can be placed on them. It has
been observed that while it is true that one of the considerations in deciding
whether to grant bail to an accused or not is whether he has been in jail for a
long time, the Court also has to take into consideration other facts and
circumstances, such as the interest of the society.
49. On the aspects of the individual liberty vis-à-vis the interest of the society,
the Hon’ble Supreme Court in the case of Ash Mohammad vs. Shiv Raj Singh,
[2012] 9 SCC 446, has observed in the following manner :-
17. We are absolutely conscious that liberty of a person should not be
lightly dealt with, for deprivation of liberty of a person has immense impact
on the mind of a person. Incarceration creates a concavity in the
personality of an individual. Sometimes it causes a sense of vacuum.
Needless to emphasise, the sacrosanctity of liberty is paramount in a
civilised society. However, in a democratic body polity which is wedded to
the rule of law an individual is expected to grow within the social
restrictions sanctioned by law. The individual liberty is restricted by larger
social interest and its deprivation must have due sanction of law. In an
orderly society an individual is expected to live with dignity having respect
for law and also giving due respect to others’ rights. It is a well-accepted
principle that the concept of liberty is not in the realm of absolutism but is a
restricted one. The cry of the collective for justice, its desire for peace and
harmony and its necessity for security cannot be allowed to be trivialised.
The life of an individual living in a society governed by the rule of law has to
be regulated and such regulations which are the source in law subserve
the social balance and function as a significant instrument for protection of
human rights and security of the collective. It is because fundamentally
laws are made for their obedience so that every member of the society
lives peacefully in a society to achieve his individual as well as social
Page 46 of 80
interest. That is why Edmond Burke while discussing about liberty opined,
‘it is regulated freedom’.
18. It is also to be kept in mind that individual liberty cannot be
accentuated to such an extent or elevated to such a high pedestal which
would bring in anarchy or disorder in the society. The prospect of greater
justice requires that law and order should prevail in a civilised milieu. True
it is, there can be no arithmetical formula for fixing the parameters in
precise exactitude but the adjudication should express not only application
of mind but also exercise of jurisdiction on accepted and established
norms. Law and order in a society protect the established precepts and see
to it that contagious crimes do not become epidemic. In an organised
society the concept of liberty basically requires citizens to be responsible
and not to disturb the tranquillity and safety which every well-meaning
person desires. Not for nothing J. Oerter stated :
“Personal liberty is the right to act without interference within
the limits of the law.
19. Thus analysed, it is clear that though liberty is a greatly cherished
value in the life of an individual, it is a controlled and restricted one and no
element in the society can act in a manner by consequence of which the
life or liberty of others is jeopardised, for the rational collective does not
countenance an anti-social or anti-collective act.
* * * * * * * *
30. We may usefully state that when the citizens are scared to lead a
peaceful life and this kind of offences usher in an impediment in
establishment of orderly society, the duty of the court becomes more
pronounced and the burden is heavy. There should have been proper
analysis of the criminal antecedents. Needless to say, imposition of
Page 47 of 80
conditions is subsequent to the order admitting an accused to bail. The
question should be posed whether the accused deserves to be enlarged on
bail or not and only thereafter issue of imposing conditions would arise. We
do not deny for a moment that period of custody is a relevant factor but
simultaneously the totality of circumstances and the criminal antecedents
are also to be weighed. They are to be weighed in the scale of collective
cry and desire. The societal concern has to be kept in view in juxtaposition
of individual liberty. Regard being had to the said parameter we are
inclined to think that the social concern in the case at hand deserves to be
given priority over lifting the restriction on liberty of the accused.
50. In State of Bihar vs. Rajballav Prasad, [2017] 2 SCC 178, the Hon’ble
Supreme Court has on the two aspects of individual liberty and
interests of the society has observed in the following manner :-
26. We are conscious of the fact that the respondent is only an undertrial
and his liberty is also a relevant consideration. However, equally important
consideration is the interest of the society and fair trial of the case. Thus,
undoubtedly the courts have to adopt a liberal approach while considering
bail applications of the accused persons. However, in a given case, if it is
found that there is a possibility of interdicting fair trial by the accused if
released on bail, this public interest of fair trial would outweigh the personal
interest of the accused while undertaking the task of balancing the liberty of
the accused on the one hand and interest of the society to have a fair trial
on the other hand. When the witnesses are not able to depose correctly in
the court of law, it results in low rate of conviction and many times even
hardened criminals escape the conviction. It shakes public confidence in
the criminal justice-delivery system. It is this need for larger public interest
to ensure that criminal justice-delivery system works efficiently, smoothly
and in a fair manner that has to be given prime importance in such
situations. After all, if there is a threat to fair trial because of intimidation ofPage 48 of 80
witnesses, etc., that would happen because of wrongdoing of the accused
himself, and the consequences thereof, he has to suffer….
51. A Constitution Bench in Abdul Rehman Antulay vs. R.S. Nayak, [1992] 1 SCC
225, has examined the aspect of a fair, just and reasonable procedure,
implicit in Article 21 of the Constitution, creating a right to speedy trial in
favour of the accused and on its requirement in public interest. The
Constitution Bench has laid down a series of propositions to serve as
guidelines, while observing that it is not possible to lay down any hard and
fast rules since it is difficult to foresee all situations. The right to speedy trial
is the right of the accused and a speedy trial is also in public interest. It has
also taken note of the possible situation that delay also prejudices the
prosecution due to non-availability of witnesses, disappearance of evidence by
lapse of time, etc. One of the propositions laid down by the Constitution
Bench is that while determining whether undue delay has occurred [resulting
in violation of right to speedy trial] one must have regard to all the attendant
circumstances, including nature of offence, number of accused and witnesses,
the workload of the court concerned, prevailing local conditions and so on —
what is called, the systemic delays. As a proposition, it is also laid down that
inordinate long delay may be taken as presumptive proof of prejudice. In that
context, the fact of incarceration of accused will also be a relevant fact. The
prosecution should not be allowed to become a persecution. But when does
the prosecution become persecution, again depends upon the facts of a given
case. Ultimately, the court has to balance and weigh the several relevant
factors — ‘balancing test’ or ‘balancing process’ — and determine in each case
whether the right to speedy trial has been denied in a given case.
52. A seven-Judge Bench in P. Ramachandra Rao vs. State of Karnataka, [2002] 4
SCC 578, has also examined the issue of speedy trial. As regards the decision
in Abdul Rehman Antulay [supra], the seven-Judge Bench decision has
observed that the dictum in A.R. Antulay [supra] case is correct and still holds
Page 49 of 80
the field. Observing that the propositions emerging from Article 21 of the
Constitution and expounding the right to speedy trial laid down as guidelines
in A.R. Antulay case [supra] adequately take care of right to speedy trial, the
seven-Judge Bench has upheld and reaffirmed those propositions. It has also
been observed that the guidelines laid down in A.R. Antulay case [supra] are
not exhaustive but only illustrative. They are not intended to operate as hard-
and-fast rules or to be applied like a straitjacket formula. Their applicability
would depend on the fact situation of each case. It is difficult to foresee all
situations and no generalization can be made.
53. In our considered view, the concept of expeditious trial is not to be considered
in isolation of all other relevant factors. It is to be considered together with
the concept of fair trial, with the procedure also being reasonable and just.
For a trial to be a fair trial, both the prosecution side and the defence side
should be fairly dealt with. It is trite to say that denial of a fair trial could
result in injustice either to the victim or to the accused and to a particular
community and also to a particular section of the society or the society at
large. A fair trial means a trial in which prejudice for or against the accused,
the victims, the witnesses, or the cause which is being tried should be absent.
The object of a trial, that is to say, a fair trial is to render justice and to
convict the guilty and to protect the innocent victims and the witnesses. The
ultimate object of a trial is to search for the truth and on the standard of
proving the guilt, to punish the guilty. Failure to provide a platform of a fair
trial, either to the prosecution or to the defence or to the witneeses would be
a failure of the concept of due process of law. It is in the interest of justice of
all the stake holders including the society at large, the concept of the fair trial
is envisioned. There is no doubt that a trial has to be a reasonably expeditious
trial which is fair and just. The Court while exercising the judicial discretion,
must not lose sight of the fact that Article 21 of the Constitution also
embraces the right to life of the victims and the witnesses as well. The
fundamental right of life and liberty includes also the right to live without any
Page 50 of 80
kind of fear, intimidation, oppression, etc. by the victims and the witnesses
also.
54. It is well settled that while considering an application for bail, the gravity of
the offence is one of the most relevant aspects which is always required to be
taken into consideration by the Court. The gravity for the offence can easily
be examined from the facts and circumstances obtaining in the particular
case. Coupled with the gravity of the offence, another relevant factor which
needs to be considered simultaneously is the term of sentence that is
prescribed for the offence the accused is alleged to have committed. Such
consideration with regard to the gravity of offence and the severity of
punishment are factors which are in addition to the triple test or the tripod
test that would be normally applied. There can be no denial to the situation
that an accused person on bail would be in a better position to look after his
case and to defend himself in comparison to an accused person in custody.
Conversely, an accused on bail, in certain situations, may place the victims
and the witnesses in a worse position than the accused person on bail with
the trial being not a fair trial. It is also true that a decision in another case
does not become applicable on all fours automatically and it cannot become
the basis either for granting bail or for not granting bail without consideration
of the obtaining fact situation in another case. A decision may, however, have
a bearing on principle. At the end, it would be the facts and circumstances
obtaining in the case for which the prayer for bail has been made, which are
to be considered for exercise of the judicial discretion.
N. The offences the appellants are charged with in the trial :-
55. In the case in hand, from the Table – II above, it can be noticed that the
offences of the UA[P] Act with which the appellants are charged with are
Section 16 [1][a] and/or Section 18 and/or Section 20. Other than the afore-
stated offences of the UA[P] Act, the appellants are also charged with Section
Page 51 of 80
25 [1A] and/or Section 25 [1B][a] of the Arms Act; and Section 5 of the
Explosive Substances Act. In addition to the above offences under the special
acts, the appellants also charged with other offences defined in the Indian
Penal Code, namely, Section 120B and/or Section 121 and/or Section 302
and/or Section 307.
56. Section 120A, IPC has provided for the definition of criminal conspiracy. It
says that when two or more persons agree to do or cause to be done, [i] an
illegal act, or [ii] an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy. Section 120B, IPC has
provided for punishment of criminal conspiracy. Section 302, IPC has provided
for the punishment for murder and a person who commits murder, is liable to
be punished with death, or imprisonment for life, and shall also be liable to
fine. The offence under Section 307, IPC is attracted for an attempt to murder
and it prescribes for a highest punishment of imprisonment for life, if hurt is
caused to any person due to an attempt to murder. However, when a person
offending under Section 307, IPC is under sentence of imprisonment for life,
he may, if hurt is caused, be punished with death.
57. Chapter – VI of the IPC contains the offences against the State. Section 121,
IPC is part of Chapter – IV of the IPC with the heading, ‘waging, or attempting
to wage war, or abetting waging of war, against the Government of India’. As
per Section 121 IPC, whoever, wages war against the Government of India, or
attempts to wage such war, or abets the waging of such war, shall be
punished with death, or imprisonment for life and shall also be liable to fine.
58. Section 5 of the Explosive Substances Act has provided for punishment for
making or possessing explosives under suspicious circumstances and a person
committing an offence under Section 5 is liable to be punished with
transportation for a term which may extend to fourteen years, or with
imprisonment for a term which may extend to five years, along with fine.
Page 52 of 80
59. Section 25 [1A] of the Arms Act has provided that whoever acquires, has in
his possession or carries any prohibited arms or prohibited ammunition in
contravention of Section 7 shall be punishable with imprisonment for a term
which shall not be less than seven years but which may extend to fourteen
years and shall also be liable to fine : provided that the Court may, for any
adequate and special reasons to be recorded in the judgment, impose a
sentence of imprisonment for a term of less than seven years. Section
25[1B][a], Arms Act has laid down that whoever acquires, has in his
possession or carries any firearm or ammunition in contravention of Section 3,
shall be punishable with imprisonment for a term which shall not be less than
two years but which may extend to five years and shall also be liable to fine
and shall also be liable to fine : provided that the Court may for any adequate
and special reasons to be recorded in the judgment impose a sentence of
imprisonment for a term of less than two years.
60. As regards the offences under the UA[P] Act are concerned, Section 16 has
provided for punishment for ‘terrorist act’, which has been defined in Section
15. Section 18 has provided for conspiracy, etc. Section 19 has provided for
harbouring, etc. Section 20 has prescribed for punishment for being member
of terrorist gang or organization. All these offences – Section 16, Section 18,
Section 19 and Section 20 – fall under Chapter IV of the UA[P] Act. For the
purpose of ready reference, they are quoted hereinbelow along with Section
15 :-
15. Terrorist act. –
[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, –
Page 53 of 80
[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,
[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
Page 54 of 80
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.
16. Punishment for terrorist act –
[1] Whoever commits a terrorist act shall,-
[a] if such act has resulted in the death of any person, be punishable with
death or imprisonment for life, and shall also be liable to fine;
[b] in any other case, 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.
18. Punishment for conspiracy, etc. –
Whoever conspires or attempts to commit, or advocates, abets, advises
or incites, directly or knowingly facilitates the commission of, a terrorist act
or any act preparatory to the commission of a terrorist 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.
19. Punishment for harbouring, etc. –
Whoever voluntarily harbours or canceals, or attempts to harbour or
conceal any person knowing that such person is a terrorist shall be
punishable with imprisonment for a term which shall not be less than three
years but which may extend to imprisonment for life, and shall also be
liable to fine :
Provided that this section shall not apply to any case in which the harbor or
concealment is by the spouse of the offender.
Page 55 of 80
20. Punishment for being member of terrorist gang or organisation.-
Any person who is a member of a terrorist gang or a terrorist organisation,
which is involved in terrorist act, shall be punishable with imprisonment for
a term which may extend to imprisonment for life, and shall also be liable to
fine.
O. The case borne out of the Charge-Sheets and the materials submitted
with them : –
61. The materials collected during the course of investigation go to show that the
National Democratic Front of Bodoland [NDFB] is an armed outfit which seeks
to obtain a sovereign Bodoland for the Bodo people in Assam and it has been
designated as a terrorist organization by the Government of India under the
Unlawful Activities [Prevention] Act, 1967. The origin of the NDFB is traceable
to a militant group named Bodo Security Force, formed in 1986, and the
name NDFB was adopted in 1994. In course of time, the NDFB got split into
several factions with the main factions being NDFB[R], NDFB[P] and
NDFB[S]. The faction, NDFB[R] was led by Ranjan Daimari and the faction
NDFB[P], was led by B. Sungthagra. The faction, NDFB[S] is found to be an
off-shoot of NDFB[R], led by I.O. Songbijit. The main grievances of the
terrorist organization, NDFB is underdevelopment of the region and influx of
immigrants.
62. From the post-mortem examination reports and the inquest reports of the
deadbodies of thirty persons, who were murdered in the incident occurred on
23.12.2014, it is noticed that most of those victims died due to bullet injuries
they received on their persons. The thirty persons who were killed at Sonajuli
village on 23.12.2014, were Adivashi / Southal persons. Out of those thirty
persons, fourteen were females. Again, out of those thirty persons, at least
twelve were children aged between one year or seven years. The post-
mortem examination reports of the thirty persons are listed as D-6 to D-35 in
Page 56 of 80
the list of documents [Annexure-B] in the 1st Supplementary Charge-Sheet
dated 19.10.2015. In addition, it is noticed that four persons were injured in
the same incident and the medical examination reports of these four injured
persons have showed that all of them were injured grievously with bullet
injury marks in their respective bodies.
63. The investigation materials include interceptions of mobile phone
conversations among various cadres of the faction of NDFB, NDFB[S] which
are stated to have been intercepted lawfully by the Assam Police. It is the
case of the investigating agency that on the basis of thorough scrutiny of the
interceptions of mobile phone conversations and the transcriptions thereof
into English and the Call Detail Records [CDRs] of the relevant mobile contact
numbers of the accused persons have revealed about hatching of the
conspiracy for the killing incident at Sonajuli village on 23.12.2014 under the
direct command and control of the accused, A-10 who was the Commander-
in-Chief of NDFB, along with its associates including the charge-sheeted
accused persons.
64. The materials prima facie indicate that the accused, A-10 from his personal
mobile number called up the accused, A-4 at around 11-25 hours and again
at 11-58 hours on 23.12.2014 to instruct him to kill Adivashi / Southal people
on the same day before darkness and instructed A-4 to convey the instruction
also to the accused, A-1. The accused, A-4 from his mobile phone, was found
to have made a call at 12-15 hours to the accused, A-1. The accused, A-1
was found to have made a call to the accused persons, A-2, A-9 and A-11. It
is stated in the Charge-Sheets that those calls were made to discuss the
order of A-10 to kill Adivashi / Southal people and to finalize the conspiracy.
It is further stated that the accused, A-11 pursuant to the conspiracy
hatched, formed a team of five armed cadres of NDFB including himself and
the accused persons – A-5, A-6, A-7 & A-8. After committing the incident of
killing thirty persons, the team of assailants – A-5, A-6, A-7, A-8 & A-11 –
Page 57 of 80
went inside the forest and mountain area, near Dullai Nallah area in Assam
and Arunachal Pradesh border and met the accused, A-1 there as A-1 had
been camping and operating from that place as the SS CO of 03 Bn of NDFB.
It is stated that the team led by the accused, A-11 handed over all the arms
and ammunitions which they used in the incident of killing Adivashi / Southal
people at Sonajuli village on 23.12.2014 to the accused, A-1 there and left
the forest area separately on their own to remain hiding elsewhere. The
accused, A-3 was found to have called from his mobile number to the
accused, A-2 at 19-16 hours on 23.12.2014. As per the investigating agency,
the discussion was about the killing of the Adivashi / Southal people at
various other places. The investigating agency had also claimed that during
the said conversation, the accused, A-3 told the accused, A-2 that two bodo
persons were also killed and it would have been better if he [A-3] was there.
It is relevant to mention that on 23.12.2014, killing incidents took place in
five different places in Kokrajhar and Sonitpur districts of Assam almost at the
same time and in respect of those incidents, total five cases were registered
by the NIA, Guwahati Branch against different members of the faction,
NDFB[S].
65. One surrendered cadre of NDFB, in his statement made as a protected
witness, had revealed that the accused persons, A-7, A-8 and A-9 were
members of NDFB and they were under the command of the accused, A-11
[since deceased]. The said witness also revealed that the accused, A-10 was
known to all of them as he was the SS Commander-in-Chief of the NDFB. The
materials also indicate that on the basis of the disclosure statement made by
the accused, A-1, recovery of the following arms and ammunitions were
made from a hidden place inside a forest area in Assam Arunachal Pradesh
border, under the provisions of Section 27 of the Evidence Act, and in the
presence of independent witnesses, :- [i] two AK Assault Rifles with five
magazines; [ii] one HK Rifle with two magazines; [iii] 223 live ammunitions
suspected to be of 7.62 X 39 mm caliber; [iv] 123 live ammunitions suspected
Page 58 of 80
to be of 5.56 X 45 mm caliber; [v] two primed hand granades which were
diffused immediately; [vi] one M-20 Pistol with one magazine and three live
ammunitions; [vii] one live ammunition of unknown caliber; [ix] two large
size black colour combat pouches; and [x] two small size black colour combat
pouches. In addition, some incriminating documents were also recovered in
the process.
66. It is noticed that in the course of investigation, the following numbers and
types of Empty Fired Cases [EFCs] were recovered and seized from a place at
Sonajuli village, where the alleged killing incident took place, on 24.01.2014
in the presence of independent witnesses :- [i] thirteen nos. of empty fired
cases suspected to be of 5.56 x 45 mm caliber; [ii] nineteen nos. of empty
fired cases suspected to be of 7.62 x 39 mm caliber; and [iii] five nos. of fired
bullet heads suspected to be of 7.62 x 39 mm calibre. Six EFCs were also
handed over to the NIA by the previous Investigating Officer [I.O.] of the
case. Forensic examination reports of Ballistic experts at the CFSL,
Chandigarh have mentioned that around sixteen EFCs, out of total thirty-eight
EFCs, as well as all the five fired bullets, recovered from the place of
occurrence of the alleged killing incident, had been fired from the rifles /
pistols recovered on the basis of the disclosure statement made by the
accused, A-1.
67. Collected handwritings and signature specimens of the accused, A-1 and the
handwritten documents of NDFB, recovered purportedly in pursuance of the
disclosure made by the accused, A-1, were sent to the CFSL, Chandigarh for
examination and an Examination Report of the CFSL, Chandigarh opined that
all those writings on the official letter head of the NDFB, were written by the
accused, A-1. In those documents, mentions were found made of the
accused persons, A-1, A-2, A-3 and A-4 as members of proscribed terrorist
organization, NDFB.
Page 59 of 80
68. On the basis of the revelations made by the landowner of the rented house
wherefrom the accused persons, A-1, A-2 and A-3 were arrested on
14.01.2015, it was found out that the accused, A-3 was staying in the said
rented house along with his wife and daughter since last five to six years and
he provided shelter to the other two accused persons, A-1 and A-2 with the
knowledge that they were active members of NDFB. Call Detail Records
[CDRs] of the accused persons, A-1, A-2 and A-3 are placed amongst the
materials submitted with the Charge-Sheets to establish that there were
many calls and contacts among them regularly before and after the incident
dated 23.12.2014. The reports of the CFSL, Chandigarh are also included as
part of the Charge-Sheets to state that the voice samples taken from the
intercepted conversations between the accused persons, A-2 and A-3 were
found matched.
69. One 9 mm Glock 19 pistol bearing no. KWM377 on the right side of the body
and written made in Austria CLOCK Ges.m.b.H. was stated to have been
recovered from a hidden place, on the basis of disclosure made by the
accused, A-4, near one of his relatives’ house situate in Auxiguri village in
District – Sonitpur, Assam. As per the Ballistic Examination Report and the
expert opinion given by the ballistic expert at the CFSL, Chandigarh, the
pistol, Glock-19, 9 mm falls under the prohibited category of firearms under
the provisions of the Arms Act, 1959.
70. From the statements of the eye-witnesses to the incident dated 23.12.2014,
recorded during the course of investigation, it is noticed that those eye-
witnesses had identified the accused persons, A-5 and A-6 to be two of the
five armed accused persons, who took part in the incident at Sonajuli villager
on 23.12.2014. In their statements, the eye-witnesses stated that they knew
the two accused persons, A-5 and A-6 since before the incident. The eye-
witnesses to the incident also stated, in their statements recorded during the
investigation, that the accused persons, A-7 and A-8 were in the team of five
Page 60 of 80
accused persons with the accused persons, A-5, A-6 and A-11 and were
involved in the incident of killing. As per the eye-witnesses’ statements, the
accused, A-7 was carrying one small arms in his hand while the accused, A-8
was carrying one long sophisticated arms in his hand. As per the eye-
witnesses’ accounts, all of them had fired from those arms during the course
of the incident.
71. In the Forensic Analysis Report of the CFSL, Chandigarh submitted on the
basis of the legally intercepted mobile phone conversations between the
cadres of NDFB, it was opined from the voice samples that one of the voices
belonged to the accused, A-9. One surrendered cadre of NDFB, cited as a
protected witness, in his statement had revealed that the accused persons, A-
7, A-8 and A-9 were members of the NDFB. In their statements, two
protected witnesses stated that the accused persons, A-5, A-6, A-7, A-8 and
A-9 came inside the jungle of Dullai Nallah area in Assam – Arunachal border
and deposited three long arms and one pistol along with ammunitions and
other items to their SS Commanding Officer, A-1 in the morning hours of
24.12.2014. As per the investigating agency, such fact coupled with the fact
of recovery of arms and ammunitions from Dullai Nallah area in Assam –
Arunachal Pradesh border, pursuant to disclosure made by the accused, A-1,
had corroborated the fact of participation of the accused persons, A-5, A-6,
A-7, A-8 and A-11 in the terrorist act and the arms and ammunitions were
used in the incident dated 23.12.2014, with further corroboration from the
reports submitted by the CFSL, Chandigarh.
72. In presence of such materials and on an analysis of the incriminating
materials against the charge-sheeted accused persons, more particularly, the
appellants herein qua the individual roles apparently played by each of the
appellants in the events preceding, attending and succeeding the incident
occurred at Sonajuli Village on 23.12.2014, this Court is not persuaded to
reach a view that the incident occurred on 23.12.2014 at Sonajuli Village was
Page 61 of 80
not pursuant to a criminal conspiracy. It is also not possible to hold a view
that the accusations brought against the appellants and the individual roles
played by them in respect of the incident are not prima facie true to
overcome the bar contained in the proviso to sub-section [5] of Section 43D
of the UA[P] Act.
P. The stage of the trial; the witnesses examined & the nature of witnesses
:-
73. In the Charge-Sheet no. 03/2015, submitted on 13.07.2015, the prosecution
in order to bring home the charges against the accused persons – A-1, A-2,
A-3 & A-4 – listed sixty-four nos. of prosecution witnesses [P.W.s], as P.W.1
to P.W.64. Out of those sixty-four P.W.s, P.W.9 has been cited as Protected
Witness – ‘A’. In the 1st Supplementary Charge-Sheet bearing Charge-Sheet
no. 3A/2015 dated 19.10.2015, the prosecution side cited thirty-nine P.W.s
from P.W.65 to P.W.103 to establish the charges against the accused
persons, A-1, A-2, A-3, A-4, A-5 & A-6. Out of these P.W.s, P.W.76 has been
cited as Protected Witness – ‘B’. In the 2nd Supplementary Charge-Sheet
being Charge-Sheet no. 3B/2016 dated 19.02.2016, the prosecution side
listed fourteen P.W.s from P.W.104 to P.W.116 to prove the charges against
the accused persons, A-1, A-2, A-3, A-4, A-5, A-6, A-7, A-8 & A-9. Amongst
P.W.104 to P.W.116, P.W.109 and P.W.110 have been cited as Protected
Witness ‘C’ and Protected Witness ‘D’ respectively. In the 3rd Supplementary
Charge-Sheet bearing Charge-Sheet no. 3C/2015, submitted on 22.10.2019,
eight more P.W.s from P.W.117 to P.W.124 are listed to bring home the
charges against the accused persons, A-1, A-2, A-3, A-4, A-5, A-6, A-7, A-8,
A-9 & A-10.
74. In the Charge-Sheets, one person named Sanatan Basumatary @ Sohai Sulla
is found cited as an accused designating him as A-11. In the 3rd
Supplementary Charge-Sheet, it is mentioned that reports had established
Page 62 of 80
that Sanatan Basumatary @ Sohai Sulla [A-11] had been killed during an
encounter with the security forces on 31.03.2015 at Lakhipur Village of
Sonitpur District, Assam.
75. From the materials on record it has emerged that the recording of evidence
of witnesses commenced from 16.11.2016 when on that day, two P.W.s were
examined. It has further emerged from the materials on record that till
24.09.2024, the prosecution side has been able to examine fifty-nine nos. of
P.W.s as P.W.59 was examined, cross-examined and discharged on
24.09.2024. On 27.09.2024, though P.W.60 was examined his cross-
examination was kept reserved on that day.
76. As mentioned above, the prosecution side has cited four P.W.s as Protected
Witnesses, that is, Protected Witness – ‘A’, Protected Witness – ‘B’, Protected
Witness – ‘C’ & Protected Witness – ‘D’. It is revealed from the materials on
record that Protected Witness – ‘B’ & Protected Witness – ‘C’ were examined,
cross-examined and discharged on 26.04.2024 by examining them as P.W.53
and P.W.54 respectively, by following the procedure laid down in Section 44
of the UA[P] Act. On 24.09.2024, Protected Witness – ‘D’ was examined,
cross-examined and discharged as P.W.59. In so far as Protected Witness –
‘A’ is concerned, a petition being Petition no. 641/2023 was filed by the
Inspector/CIO, NIA before the learned Special Court on 11.10.2023. When
Protected Witness – ‘A’ was produced for examination on 16.10.2023, the
defence side raised objection. The learned Special Court heard the learned
Special Public Prosecutor, NIA and the learned Defence Counsel on that day
and posted that case on 19.10.2023 for passing order on Petition no.
641/2023. On 19.10.2023, the learned Special Court rejected Petition no.
641/2023 finding that neither any reason was assigned nor any material had
been furnished to the Court to draw a satisfaction that the life of the witness
was in danger or to enable the Court to record any reason in writing, as
required under Section 44 [2] of the UA[P] Act. The learned Special Court had
Page 63 of 80
found that the petition was submitted by the CIO, NIA and not by the learned
Public Prosecutor and it did not even bear any endorsement of the learned
Public Prosecutor. The learned Special Court had held that Petition no.
641/2023 was not one under Section 44 [2] of the UA[P] Act either in form or
in substance. The learned Special Court had, however, granted an
opportunity to the prosecution/witness to submit an appropriate application
with the observation that in the event any application would be filed under
Section 44 [2] of the UA[P] Act the same would be considered on its own
merits. The materials on record do not disclose that Protected Witness – ‘A’
has been examined by the prosecution on any date thereafter till the hearing
of the instant appeal.
77. The case records go to indicate that after recording of evidence started on
16.11.2016 when two P.W.s were examined, the case, Special NIA Case no.
02 of 2015 was posted on one hundred and twenty-six subsequent dates till
24.09.2024. During the period from 16.11.2016 to 24.09.2024, the
prosecution side has been able to examine fifty-nine prosecution witnesses
[P.W.s] up to P.W.59.
78. Having regard to the progress made in the trial, the learned Special Court, on
04.04.2024, had inter-alia observed to the following affect :-
….. it was considered necessary to fast track the trial of the case and
by an Order dated 19.09.2023, it was directed to conduct the
examination of witnesses every week and since then only 03 nos. of
witnesses could be examined and at this rate, the probability of
conclusion of the trial at an early date appears remote. Considering
the above, it is directed that henceforth, the witnesses will be
examined on two days [Thursdays and Fridays] every week and at
least 3 [three] witnesses will be summoned on each date. ProsecutionPage 64 of 80
to take steps accordingly, The CIO will take all necessary measures to
ensure the presence of the summoned witnesses. …..
Q. The periods of custody of the appellants :-
79. From the main Charge-Sheet, the 1st Supplementary Charge-Sheet, the 2nd
Supplementary Charge-Sheet and the 3rd Supplementary Charge-Sheet, it has
emerged that the appellants herein, that is, A-1 to A-2 and A-4 to A-9 were
arrested on dates, as indicated in Table – III hereinbelow. It is pertinent to
state that since their arrest and after their production before the learned
Court, they had been remanded to custody and since then, they are in
custody as under trial prisoners [UTPs].
Table-III
Sr. Name Accused Date of Arrest
1 Ajoy Basumatary @ Ajay Basumatary @ B. Buhum @ A-1 14.01.2015
Birkhang Basumatary
2 Dilip Basumatary @ B. Birbaisha @ Birbhai @ Birbhol @ A-2 14.01.2015
Lambu
3 Nitul Daimary @ D. Naihab @ Naihab A-4 11.02.2015
4 Ustad Basumatary @ Daneswar Basumatary @ Dapung A-5 24.04.2015
5 Pohor Narzary @ Jaan Narzary A-6 24.04.2015
6 Ananta Swargiary @ Agar A-7 25.08.2015
7 Gojen Narzary @ Babul Narzary @ Kantiswar A-8 29.08.2015
8 Julius Basumatary @ Jujai A-9 25.08.2015
The question arises is whether all the appellants are entitled to be released
on bail, at this stage of the trial, in the obtaining facts and circumstances of
the case and in presence of the incriminatory materials, discussed above. For
the said purpose, the roles attributed to each of the appellants in the
materials, accepting them to prima facie true, are of utmost relevance and
import.
Page 65 of 80
R. Roles attributed to the appellants :-
[i] The appellants, A-1, A-2, A-4 & A-9 :-
80. Criminal conspiracy is an independent offence and it is separately punishable.
The manner, circumstances and situations in which an offence has been
committed in pursuance of a conspiracy purportedly hatched and the level of
involvement of each of the accused persons therein are relevant factors. A
conspiracy can be a general one and a separate one. There can be a smaller
conspiracy, which may be a part of a larger conspiracy. There is a distinction
between hatching of a criminal conspiracy and playing of an active part in
effectuating the object, albeit illegal, pursuant to hatching of the criminal
conspiracy. A number of accused persons may be part of a criminal conspiracy
but distinction may lie in the degree and level of participation of each of the
accused persons.
81. For the purpose of consideration of the plea of the appellants from the
standpoint of prolonged incarceration, we would like to follow the proposition
made in Zahoor Ahmad Shah Watali [supra] that once charges are framed, it
would be safe to assume the existence of the factual ingredients constituting
the offence alleged against the accused. It is for that purpose, we have
already referred to the Charge-Sheets and the materials presented therewith
in the preceding paragraphs. We have also arrived at the satisfaction whether
the accusations against the accused-appellants are prima facie true.
82. As can be seen from Table – II above, the appellants – A-1, A-2, A-4 & A-9 –
have been charged with the offences defined under Section 18 and Section 20
of the UA[P] Act. The charge under Section 20 of the UA[P] Act was also
framed against one of the charge-sheeted accused, A-3 on 19.09.2016, when
the same charge was framed against the appellants, A-1, A-2, A-4 & A-9 on
the ground that all of them, at the time of the alleged incident, were members
Page 66 of 80
of a terrorist organization. It is not a laid down prescription that an accused
who pleads guilty to an offence would be visited with lesser punishment than
an accused against whom the same charge is proved after holding and
conclusion of a trial. The charge-sheeted accused, A-3 when pleaded guilty to
the charge under Section 20 of the UA[P] Act, was imposed a punishment of
simple imprisonment of seven years and a fine of Rs. 10,000/- with default
stipulation, by an Order dated 03.07.2019. Taking a cue from the observation
made paragraph 14 in the case of K.A. Najeeb [supra], it can be legitimately
expected that if the appellants – A-1, A-2, A-4 & A-9 – are to be found guilty
for the same offence, they would also be visited with similar punishment.
83. Both the offences under Section 18 of the UA[P] Act and Section 120B of the
IPC with which the appellants – A-1, A-2, A-3 & A-9 – are charged with, are
relatable to punishment for conspiracy. There has been no allegation and also,
no materials in the Charge-Sheets that these four appellants had taken any
direct part in the incident occurred on 23.03.2014 which led to the killing of
thirty persons and resulted in serious injuries to few others through gunshots.
It is pertinent to note that when the Charge-Sheets were submitted, the
investigating agency, NIA found prima facie materials against these four
appellants for the offence under Section 120B, IPC read with Section 118,
Section 302 and Section 307 of the IPC. As observed above, it would be the
degree of participation of these appellants which, perhaps, would be material
in the matter of handing out sentences, if they are to be found guilty for the
charges under Section 18 of the UA[P] Act and Section 120B of the IPC. As
per sub-section [1] of Section 120B, IPC, whoever is a party to a criminal
conspiracy to commit an offence punishable with death, imprisonment for life
or rigorous imprisonment for a term of two years or upwards, shall, where no
express provision is made in the IPC for the punishment of such a conspiracy,
be punished in the same manner as if he had abetted such offence. Chapter V
of the IPC has laid down about abetments and the punishments for
abetments, which need a mention. As per Section 114, IPC, whenever any
Page 67 of 80
person, who is absent would be liable to be punished as an abettor, is present
when the act or offence for which he would be punishable in consequences of
the abetment is committed, he shall be deemed to have committed such act
or offence. As a derivative, it can be said that if the abettor is not present
when the act or offence is committed, he shall not be deemed to have
committed the act or offence. Section 118, IPC has provided for punishment
for concealing design to commit offence punishable with death or
imprisonment for life. Section 118, IPC has inter-alia provided that whoever
intending to facilitate or knowing it to be likely that he will thereby facilitate
the commission of an offence punishable with death or imprisonment for life;
voluntarily conceals by any act or omission, the existence of a design to
commit such offence, shall, if that offence be committed, be punished with
imprisonment of either description for a term which may extend to seven
years. These four applicants – A-1, A-2, A-3 & A-9 – have not been charged
with the offence under Section 122, IPC which is attracted for conspiracy to
commit offences punishable under Section 121, IPC. The other four appellants
– A-5, A-6, A-7 & A-8 – have been charged with the offence under Section
121, IPC. An accused who commits murder, is to be punished under Section
302, IPC. The punishment under Section 307, IPC is to be imposed on an
accused who had made an attempt to commit murder.
84. In addition, charges under Section 5 of the Explosive Substances Act and
Section 25 [1A] of the Arms Act have been framed against the appellant, A-1.
The materials indicate that recovery of a cache of arms and ammunitions were
recovered from a place inside a forest area, as already discussed above, on
the basis of disclosure statement made by him and corroboration was received
on the said aspect from the statements of the witnesses. The maximum
punishment which is attracted under Section 5 of the Explosive Substances Act
with which the appellant, A-1 is charged with for possessing explosives, is five
years along with fine. The appellant, A-4 like the appellant, A-1, is also
charged under Section 25 [1A] of the Arms Act. The appellants, A-1 & A-4, if
Page 68 of 80
found guilty for the offence under Section 25 [1A] of the Arms Act, would be
inflicted with a sentence of imprisonment ranging from seven years to
fourteen years.
85. Going by the prescription contained in Section 436A of the Code and Section
479 of the BNSS and the proposition laid down in K.A. Najeeb [supra] that
the presence of statutory restrictions contained in Section 43D[5] of the UA[P]
Act per se does not oust the ability of the Constitutional Courts to grant bail on
grounds of violation of the right to life and liberty, we like to observe that the
rigours contained in the provisions of Section 43D[5] of the UA[P] Act are to
be held as diluted by taking into account the periods the four appellants – A-1,
A-2, A-3 & A-9 – have spent in custody after their arrest in connection with
Special NIA Case no. 2 of 2015 on the dates mentioned in Table – III above.
In view of such opinion arrived at, we hold that the four appellants – A-1, A-2,
A-3 & A-9 – can be released on bail, at this stage of the trial of Special NIA
Case no. 2 of 2015, subject to appropriate terms and conditions.
[ii] The appellants, A-5, A-6, A-7 & A-8 :-
86. One of the serious charges which is framed against the appellants – A-5, A-6,
A-7 & A-8 – is the one under Section 121, IPC. As stated above, a charge
under Section 121, IPC is framed when one wages war or attempts to wage
such war or abets the waging of such war against the Government of India. If
found guilty, an accused charged with the offence under Section 121, IPC
shall be punished with death or imprisonment for life, in addition to fine. The
other serious charge framed against the appellants – A-5, A-6, A-7 & A-8 – is
under Section 16 of the UA[P] Act, which prescribes punishment for
committing terrorist act. As per Clause [a] of sub-section [1] of Section 16 of
the UA[P] Act, whoever commits a terrorist act shall, if such act has resulted
in the death of any person, be punishable with death or imprisonment for life,
and shall also be liable to fine.
Page 69 of 80
87. What act is a terrorist act is described in Section 15 of the UA[P] Act. What
has emerged prima facie from the Charge-Sheets and the materials presented
with the Charge-Sheets including the statements of the witnesses, is that
there has been identification of the appellants – A-5, A-6, A-7 & A-8 – by the
witnesses including the eye-witnesses, to the effect that there had been active
and direct acts on the parts of these appellants, that is, A-5, A-6, A-7 & A-8 in
the incident which occurred on 23.12.2014 at Sonajuli Village in Sonitpur
District. In their statements, the eye-witnesses have implicated all these four
appellants – A-5, A-6, A-7 & A-8 – by stating that all four of them were in the
team of five assailants who went to the place of incident armed with
sophisticated arms and ammunitions. In their statements, the eye-witnesses
stated that they used to know these appellants since before the incident and
had stated that these appellants fired from those sophisticated arms, which
included AK assault rifles. From the Post-Mortem Examination Report, it is
prima facie established that thirty persons lost their lives in the incident on
23.12.2014 due to bullet injuries.
88. It can, however, be examined as to whether the factual ingredients of the
offence with which the accused is charged with, are in existence or not in the
materials so presented by the prosecution side in the Charge-Sheets. The
probative value of such incriminating materials is not to be gone into at the
stage of considering a bail application, as it is a matter to be considered at the
stage of trial. Viewed from such context, the question about existence of
prima facie materials satisfying the ingredients of a terrorist act against the
four appellants, A-5, A-6, A-7 & A-8 is to be answered in the affirmative,
firstly, they were known to the eye-witnesses from a period prior to the
incident and they were identified by the eye-witnesses; secondly,
sophisticated firearms were used by these four appellants – A-5, A-6, A-7 & A-
8 – in the incident dated 23.12.2014; and thirdly, by firing from the
sophisticated firearms, these four appellants – A-5, A-6, A-7 & A-8 – hadPage 70 of 80
caused the death of thirty Adivashi / Southal persons. It does not emerge
from the materials that any of the persons who were fired at, was armed with
any kind of firearms at the time of the incident, to make any kind of
retaliation. In other words, the firing was made at a gathering of unarmed
persons. There was apparently no risk to these four appellants when they
committed the crime.
89. As per Section 15 of the UA[P] Act, if an act is done with intent [i] to threaten
or likely to threaten the unity, integrity, security, economic security or
sovereignty of India; or [ii] to strike terror or likely to strike terror in the
people or any section of the people in India or in any foreign country, in either
of the manner as mentioned in Clause [a] or Clause [b] or Clause [c], as the
case may be, the same would be a terrorist act. The law requires that the act
should be done with intent to cause any of the effects. As per Section 2[k] of
the UA[P] Act, ‘terrorist act’ has the meaning assigned to it in Section 15, and
the expressions ‘terrorism’ and ‘terrorist’ shall be construed accordingly.
90. The concept of terrorism has been explained by the Hon’ble Supreme Court of
India in People’s Union for Civil Liberties & another vs. Union of India,
[2004] 9 SCC 580, by stating that an act of violence can be termed as an actof terrorism if the most important result it achieves is not merely the physical
and mental damage of the victim but the prolonged psychological effect it
produces or have the potential of producing on the society as a whole. It has
been stated that terrorist acts are meant to destabilize the nation by
challenging its sovereignty and integrity, to raise the constitutional principle;
to create a psyche of fear and anarchism among common people; to tear
apart the secular fabric; to overthrow democratically elected Government; to
promote prejudice and bigotry to demoralize the security forces; to thwart the
economic progress and development; and so on. It has been observed that an
act of terrorism cannot be equated with the usual law and order problem
within the State and fight against the overt and covert acts of terrorism is not
Page 71 of 80
a regular criminal justice endeavour. It is, rather, a challenge to the whole
nation.
91. The learned Special Counsel for the respondent NIA is correct to an extent
that the nature and gravity of the crimes in the decisions cited in support of
the case of the appellants is different from the nature and gravity of the
crimes involved in the case in hand. In the foregoing paragraphs, the
backgrounds involved in the decisions in K.A. Najeeb [supra], Javed Gulam
Nabi Shaikh [supra] and Sheikh Javed Iqbal [supra] have been outlined. In
Javed Gulam Nabi Shaikh [supra], the appellant was indicted for the offence
under the UA[P] Act after he was found carrying a bag containing 1193 nos. of
counterfeit Indian Currency Notes of denomination of Rs. 2,000/-. The offence
is apparently not punishable under Section 16 [1][a] of the UA[P] Act. Despite
detention of four years of the appellant, no charge was framed. In Sheikh
Javed Iqbal [supra], the allegation against the appellant was under Section
489B and Section 489C of the IPC along with Section 16 of the UA[P] Act after
fake Indian Currency Notes of denomination of Rs. 1,000/- and Rs. 500/-,
worth Rs. 26,03,500/-, were recovered from the possession of the appellant,
only two witnesses were examined in nine years. The appellant, evidently, did
not commit any offence punishable under Section 16 [1][a] of the UA[P] Act.
There was also no killing of any person in K.A. Najeeb [supra]. Though the
appellant was charged for the offence under Section 16 of the UA[P] Act, the
appellant was not charged for an offence of murdering of a person to attract
punishment under Section 16 [1][a], UA[P] Act. On analysis of the factual
matrices of the afore-mentioned cases, it is found that the cases of the
accused persons therein, if they are found guilty of the charges framed
against them, come under the purview of Section 16 [1][b] of the UA[P] Act,
which provision would be adverted to in a later part of this order.
92. Au contraire, the four appellants – A-5, A-6, A-7 & A-8 – are charged for
massacre of thirty Adivashi / Southal people, who were unarmed at the time
Page 72 of 80
of the incident. In the foregoing discussion, it has already been found out that
out of those thirty persons so killed, fourteen were females. Again, out of
those thirty massacred persons, at least twelve were children aged between
one year and seven years. An intentional killing of a large number of people in
a single incident is to be termed as an act of mass killing. A particular
community, that is, Adivashi / Southal Community was the target in the act of
mass killing and act of such mass killing is a clear demonstration of severe
hostility and brutality against the particular community. The inclusion of
females and children among their targets for killing demonstrate prima facie
about inhuman, ruthless and merciless nature of mind.
93. Section 16 of the UA[P] Act which has prescribed for punishment for terrorist
act, can be dissected into two parts. As per Section 16 [1][a], whoever
commits a terrorist act shall, if such act has resulted in the death of any
person, be punishable with death or imprisonment for life, and shall also be
liable to fine. Other than the cases covered by Section 16 [1][a], any other
case for committing terrorist act is punishable under Section 16 [1][b]. Under
Section 16 [1][b], a person who has not committed a terrorist act which has
resulted in the death of any person but his act still comes within the definition
of terrorist act then he 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.
94. In K.A. Najeeb [supra], it has been observed that the statutory restrictions
contained in Section 43D [5] of the UA[P] Act would melt down where there is
no likelihood of trial being completed within a reasonable time and the period
of incarceration of the accused has exceeded a substantial part of the
prescribed sentence. On a closer look at the decision in K.A. Najeeb [supra],
it is discernible that the Hon’ble Supreme Court appears to have consciously
observed that the presence of statutory restrictions would melt down in
respect of an undertrial prisoner where there is no likelihood of trial being
Page 73 of 80
completed within a reasonable time and the period of incarceration already
undergone has exceeded a substantial part of the prescribed sentence. It has
proceeded to hold that such an approach would safeguard against the
possibility of provisions like Section 43D [5] of the UA[P] Act being used as the
sole metric for denial of bail or for wholesome breach of Constitutional right to
speedy trial. The Hon’ble Supreme Court appears to have not consciously
observed that the rigours of the provisions of Section 43D [5] of the UA[P] Act
would be wiped out in a case where there is no likelihood of the trial being
completed within a reasonable time period and there is prolonged period of
incarceration.
95. In Section 436A of the Code and Section 479 of the BNSS, which provisions
appear to have been incorporated following the constitutional principles,
namely, the right to personal liberty guaranteed under Article 21 and
reasonably expeditious trial, the legislature has consciously excluded an
offence which is punishable with either life imprisonment or with death. We
have already found from the discussion above that the case of the four
appellants – A-5, A-6, A-7, & A-8 – in respect of the offences which they are
charged with is prima facie true. Thus, the bar contained in the proviso to
sub-section [5] of Section 43D of the UA[P] Act is applicable on all fours in the
case of these four appellants.
96. As per the definition of ‘life’, provided in Section 45 of the IPC, ‘life’ denotes
the life of a human being, unless the contrary appears from the context.
Section 53 of the IPC has enlisted the punishments to which the offenders are
liable and it includes the punishments of death and imprisonment for life.
Taking into account the provisions of Section 45, IPC read with Section 43,
IPC, a Constitution Bench in Union of India vs. V. Sriharan, [2016] 7
SCC 1, has reached a view that life imprisonment in terms of Section 53, IPC
read with Section 45, IPC means the entirety for the rest of the life of the
convict unless it is curtailed by remissions validly granted under Section 432,
Page 74 of 80
CrPC or Article 72 or Article 61 of the Constitution. Thus, it cannot be said
outrightly that these four appellants have undergone a substantial part of the
sentence prescribed under Section 16 [1][a] of the UA[P] Act and Section 302
of the IPC.
97. The Constitution Bench in V. Sriharan [supra], has followed another
Constitution Bench decision in Maru Ram vs. Union of India, [1981] 1
SCC 107, to observe that where one person commits three murders, it is
illogical to plead for the criminal and to argue that his life should be spared,
without at all considering what has happened to the victims and their family. A
person who has deprived another person completely of his liberty forever and
has endangered the liberty of his family has no right to ask the Court to
uphold his liberty. The Constitution Bench has gone on to observe that liberty
is not a one-sided concept, nor does Article 21 of the Constitution contemplate
such a concept. In the context of Article 21, it has been further observed to
the effect that while considering the problem of penology, the Court should
not overlook the plight of victimology and the sufferings of the people who
die, suffer or are maimed at the hands of the criminals. Not to speak of an
action like an eye for an eye, even an action like a slap for a slap is abhorrent
under the rule of law.
98. While the immediate fallout and impact of a terrorist act relating to high
quality counterfeit Indian paper currency, coin, etc., punishable under Section
16 [1][b] of the UA[P] Act, is not direct and profound, it cannot be said so in
case of a terrorist act which resulted in the death of thirty unarmed persons,
consisting of fourteen females and at least twelve children, aged between one
year and seven years. Such act of terrorism by members of a proscribed
terrorist organization prima facie was an intentional one to strike terror in the
people at large and, considering the people targeted in the incident of mass
killing, in a particular section of the society / community. Such act of terrorism
had caused immense loss in the form of thirty innocent lives and left a
Page 75 of 80
profound impact in the form of fear in the minds of the survivors of the
incident, the family members of the victims and the witnesses.
99. The very sight of the persons who had the allegations of committing the mass
killing of thirty persons by way of indiscriminate firings from sophisticated
firearms, at large, on being released on bail, which accusations are found to
be prima facie true on the basis of the materials presented, is sufficient to
instill fear in the witnesses and the family of the victims, who are largely from
a disadvantageous section / community. The incident of massacre occurred on
23.12.2014 had itself created a deep imprint in the minds of these people. We
take note of the submissions of the learned Special Counsel for the NIT that
after the mass killing incident, the people from the Adivashi / Southal
community left the area of the incident out of fear and for livelihood, thus,
creating impediments to secure their presence during the course of the trial.
In essence, the incident itself is not only one of the causes but one of the
effects which resulted into a delayed trial. It can reasonably be inferred that
the mass killing incident itself is one of the causes of the trial being delayed
due to harder efforts required to be undertaken for securing the presence of
the witnesses, intimated by the incident. Other than the failure to pass the
hurdle created by the proviso to sub-section [5] of Section 43 of the UA[P]
Act, there is absence of materials in case of these four appellants – A-5, A-6,
A-7 & A-8 – to overcome the tripod test. The case of these four appellants
does not come within the purview of Section 436A of the Code and/or Section
479 of the BNSS.
100. This Court cannot be oblivious of the responsibility to balance and weigh all
the relevant factors required to be taken into consideration to exercise the
judicial discretion to grant bail and not to grant bail. In the balancing process,
the Court while examining the right to personal liberty of the accused from the
standpoints of a delayed trial and prolonged custody of the accused as an
under-trial prisoner, cannot be oblivious of the larger societal and public
Page 76 of 80
interest of ensuring a fair and just trial for the society at large and the
particular section of the society / community to which the victims and the
witnesses belong. Taking all the relevant factors into account required in the
case of these four appellants, we are not persuaded to hold a view that the
delay occurred in the trial and the periods undergone by these four appellants
– A-5, A-6, A-7 & A-8 – are such that the collective public interest and the
interest of the victims and their family and the witnesses should give way to
the individual right of these four appellants.
R. Order :-.
101. In view of the discussion made above, for the reasons assigned and the
findings arrived at, the present appeal succeeds in case of the four appellants,
namely, [i] Ajoy Basumatary @ Ajoy @ B. Buhum @ Birkhang Basumatary [A-
1]; [ii] Dilip Basumatary @ B. Birbaisha @ Birbhai @ Birbhal @ Lambu [A-2];
[iii] Nitul Daimary @ D. Naihab @ Naihab [A-4]; and [iv] Julius Basumatary @
Jujai [A-9]. But, the appeal fails in case of the four appellants :- [i] Ustad
Basumatary @ Dhaneswar Basumatary @ Dapung [A-5]; [ii] Pohor Narzary @
Jaan Narzary [A-6]; [iii] Ananta Swargiary @ Agar [A-7]; and [iv] Gojen
Narzary @ Babul Narzary @ Kantiswar [A-8].
102. The impugned order dated 20.03.2024 passed in Misc.[NIA] Case no. 27 of
2024, wherefrom the present appeal has arisen, stands modified accordingly.
103. It is, therefore, provided that the four appellants, namely, [i] Ajoy Basumatary
@ Ajoy @ B. Buhum @ Birkhang Basumatary [A-1]; [ii] Dilip Basumatary @ B.
Birbaisha @ Birbhai @ Birbhal @ Lambu [A-2]; [iii] Nitul Daimary @ D. Naihab
@ Naihab [A-4]; and [iv] Julius Basumatary @ Jujai [A-9], who are standing
trial in connection with Special NIA Case no. 2 of 2015 are allowed to be
released on bail of Rs. 1,00,000 [Rupees one lakh only] with two sureties of
Page 77 of 80
the like amount each to the satisfaction of the learned Special Court, NIA,
Assam at Guwahati, subject to the following conditions :-
[a] The appellants [A-1, A-2, A-4 & A-9] shall not leave the jurisdiction of
the learned Special Court, NIA, Assam at Guwahati without prior
permission and when such leave is granted by the learned Special
Court, the appellants shall submit their leave addresses before the
learned Special Court.
[b] The appellants [A-1, A-2, A-4 & A-9] shall not directly or indirectly,
make nay inducement, threat or promise to any person acquainted with
the facts of the case so as to dissuade them from disclosing such facts
to the Court or to any police officer.
[c] The appellants [A-1, A-2, A-4 & A-9] shall maintain law and order and
they shall not commit any offence similar to the offence of which they
have been charged with.
[d] The appellants [A-1, A-2, A-4 & A-9] shall regularly appear in the trial
before the learned Special Court, NIA, Assam at Guwahati on all dates
to be fixed from time to time till the case is disposed of.
[e] The appellants [A-1, A-2, A-4 & A-9] shall surrender their passports, if
they possess, with the Special Court, during the period they remain
enlarged on bail.
[f] The appellants [A-1, A-2, A-4 & A-9] shall inform the Investigating
Officer of the NIA the addresses where they shall reside during the
period they remain enlarged on bail.
[g] Each of the appellants [A-1, A-2, A-4 & A-9] shall use only one mobile
phone number, during the time they remain on bail, and shall inform
their mobile phone number to the Investigating Officer of the NIA.
[h] The appellants [A-1, A-2, A-4 & A-9] shall also ensure that their mobile
phones remain active and charged round the clock so that they remain
constantly accessible throughout the period they remain enlarged on
bail.
Page 78 of 80
[i] During the period the appellants [A-1, A-2, A-4 & A-9] remain on bail,
the appellants shall keep the location status [GPS] of their mobile
phones active, twenty-four hours a day, and, if required by the
Investigating Officer of the NIA, their phones shall be paired with that
of the Investigating Officer of the NIA to enable him, at any given time,
to identify the appellants’ exact locations.
[j] The appellants [A-1, A-2, A-4 & A-9], while on bail, shall report to the
Officer In-Charge of the Police Station within whose jurisdiction they
shall reside, once every month.
[k] The appellants [A-1, A-2, A-4 & A-9] shall provide the photocopies of
their Adhaar Card, driving licence, PAN Card, etc. before the learned
Special Court, NIA, Assam.
104. In the event there is any breach of any of these conditions or any other
condition[s] that may be imposed by the learned Special Court independently,
liberty for which is hereby granted, it would be open for the prosecution to
seek cancellation of bail granted to the four appellants, namely, [i] Ajoy
Basumatary @ Ajoy @ B. Buhum @ Birkhang Basumatary [A-1]; [ii] Dilip
Basumatary @ B. Birbaisha @ Birbhai @ Birbhal @ Lambu [A-2]; [iii] Nitul
Daimary @ D. Naihab @ Naihab [A-4]; and [iv] Julius Basumatary @ Jujai [A-
9], before the learned Special Court only, without further reference to this
Court.
105. It is, however, made clear that the observations made hereinabove are only
for the purpose of examining the prayer for grant of bail of the appellants and
the same shall not be construed as observations made with regards to the trial
pending before the learned Special Court, NIA, Assam at Guwahati. Therefore,
the learned Special Court will not be influenced by observations made in the
Judgment during the trial of the case.
Page 79 of 80
106. It is expected that the learned Special Court, NIA, Assam at Guwahati will
proceed with the trial of Special NIA Case no. 2 of 2014 as expeditiously as
possible, as observed by it in its Order dated 04.04.2024, and in accordance
with law including Section 19 of the NIA Act.
JUDGE JUDGE
Basumatary
Page 80 of 80