Jharkhand High Court
Nageshwar Ganjhu @ Tarun Ganjhu @ Tarun … vs The Union Of India Through Nia on 25 March, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No.46 of 2025
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Nageshwar Ganjhu @ Tarun Ganjhu @ Tarun Ji, aged about 32 years,
son of Doman Ganjhu, resident of Village Bariyachak, P.O. and P.S.
Kunda, District Chatra, Jharkhand.
... Appellant
Versus
The Union of India through NIA .... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Mr. P.K. Mukhopadhyay, Advocate
For the NIA : Mr. Amit Kumar Das, Advocate
: Mr. Saurav Kumar, Advocate
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ORAL ORDER
04/Dated: 25th March, 2025
Per Sujit Narayan Prasad, J.
1. The instant criminal appeal has been preferred on behalf of the
appellant under Section 21(4) of the National Investigation Agency
Act, 2008 for setting aside the order dated 23.11.2024 passed by the
learned Additional Judicial Commissioner-XVI-cum-Special Judge,
NIA Ranchi in Misc. Criminal Application No. 2854 of 2024 by which
the prayer for regular bail of the appellant in connection with Panki
P.S. Case no. 157 of 2017registered under Sections 120-B read with
386, 411 of the Indian Penal Code, Section 25(1B)a, and 26 of the
Arms Act, under Section 17 of the Criminal Law Amendment Act and
under Sections 17, 18 and 20 of the Unlawful Activities (Prevention)
Act,1967 has been rejected.
Factual Matrix
2. The prosecution case, as per the First Information Report, in brief is
that the instant case is pertaining to the incident of extortion/levy
Page 1 of 41
collection by TPC cadres in Left Wing Extremist (LWE) affected state
of Jharkhand. The instant case was registered by Panki Police
Station, Dist- Palamu on 23.11.2017.
3. The brief fact is that on credible information received to SI
Kamaldev Singh of PS -Panki that TPC Operative Paramjeet Singh @
Sonu Das and his associates are collecting and demanding /extorting
levy money from contractors in the area of Panki. Accordingly, the
information was confirmed and was informed to SP, Palamu. On the
directions of SP, Palamu in co-ordination with SP (Ops) of Jharkhand
Jaguar team consisting of Jharkhand Jaguar, Panki Police personnel
and Reserve team of Police Station conducted an operation.
4. Subsequently on 23.11.2017 at about 03.00 Hrs in Panki market, the
police team got information that one TPC operative is coming from
Piprataand side and going towards Balumath. At about 04.15 Hrs,
TPC operative Shyam Bhokta @ DC was caught near the Amaanath
Barrage on Amaanat River and Rs.5 lakh in cash, 01 country made
Pistol and 02 live rounds and 01 empty fired case and other items
were seized from his possession.
5. Accordingly, FIR No. 157/17 dated 23.11.2017 was registered at PS
Panki, Distt. Palamu, relating to the above seizure from the TPC
operative Shyam Bhokta @ DC and other accused persons involved
in the conspiracy namely Paramjeet Singh @ Sonu Das, Akramanji,
Vikas @ Varunji, Laxman Ganju @ Kohramji, Mukeshji, Nageswar
Ganjhu @Tarunji, Premsagar Mahto, Uchit Mahto, Amit Kumar Singh
and other TPC members.
Page 2 of 41
6. After the arrest Shyam Bhokta @ DC has disclosed that heavy cache
of arms/ammunition is hidden in Lambitaand Hills. Acting on the
disclosure of Shyam Bhokta @ DC, the police party had gone to
Lambitaand hills, and caught two accused persons Prem Sagar
Mahto with one country made loaded pistol and Uchit Mahto with 9
mm pistol and magazine. However, one accused Amit Kumar Singh
managed to escape. Uchit Mahto and Prem Sagar Mahto were
arrested on 23.11.2017.
7. Subsequently accused Amit Kumar Singh was also arrested on next
day i.e. on 24.11.2017. On recovery of arms/ammunition along with
other incriminating materials from two TPC operatives, another FIR
No.158/2017 dated 23.11.2017 was lodged under same PS Panki on
the same day. Later on the three accused persons Uchit Mahto, Prem
Sagar Mahto and Amit Kumar Singh were remanded in case no.
157/2017 on 04.12.2017.
8. It further appear that Panki police, Palamu, registered Panki PS case
no 157/2017 dated 23.11.2017 under sections 386 & 120B of Indian
Penal Code, section 25(1B)(a), 26 & 35 of Arms Act, section 17 & 18
of CLA Act and section 10,11,17,18,19 & 20 of the UA(P) Act, against
Shyam Bhokta @ DC, Amit Kumar Singh, Prem Sagar Mahto, Uchit
Mahto, Mukeshji @ Mukesh Ganjhu, Kohramji @ Akramanji, Vikas @
Varunji, Nageshwar Ganjhu @ Tarunji (petitioner), Paramjeet Singh
@ Sonu Das and others on the basis of complaint made by Sh.
Kamaldev Singh, Sub Inspector, PS- Panki.
Page 3 of 41
9. After investigation of the case, investigating officer of the PS Panki
case being FIR No. 157/2017, had filed Charge Sheet – 16/2018 on
17.02.2018 in the Court of CJM Palamu against arrested accused
persons namely Shyam Bhokta @ DC, Uchit Mahto, Premsagar
Mahto & Amit Kumar Singh under Sections 386 & 120B of IPC, under
section 25(1B)(a), 26 & 35 of Arms Act, Section 17 & 18 of Criminal
Law Amendment Act. Investigation was continued against
absconding accused persons Mukesh Jee, Kohramji, Akramanji @
Ravindra Ganjhu, petitioner Nageshwar Ganjhua @ Tarun Jee, Vikas
@ Varun Ji and Paramjeet @ Sonu Das.
10. Appreciating the gravity of the offence in the instant crime due to
seizure of arms and ammunitions and cash to the tune of Rs.
5,00,000/ and other incriminating materials from TPC operative, the
Central Government in exercise of the powers conferred under sub-
section 5 of section 6 read with section 8 of the National
Investigation Agency Act, 2008 vide MHA, New Delhi CTCR Division
order no.11011/43/2018/NIA dated 06.07.2018, directed NIA to
take up investigation of the case.
11. Accordingly, PS Panki case no. 157/2017 dated 23.11.2017 was re-
registered as NIA case No. RC- 23/2018/NIA/DLI dated 09.07.2018
under sections 386 & 120B of the IPC, section 25 (1B)(a), 26 & 35 of
the Arms Act and section 17 & 18 of the CLA Act and section
10,11,17,18,19 & 20 of the UA(P) Act.
12. Further the appellant herein was arrested and has filed an
application being Misc. Criminal Application no. 2854 /2024 which
Page 4 of 41
was rejected by the Court of Special Judge (NIA) Ranchi, and
thereafter the instant appeal has been preferred.
13. It is evident from the record that earlier to the case having been
taken by the NIA in view of the provision of Section 6(5) NIA Act,
2008, the case was registered in the district police being Panki P.S.
Case No. 157 of 2017.
14. It needs to refer herein that in the said case, after the investigation
having been completed and charge-sheet having been submitted, the
appellant remained absconding.
15. Subsequent to the filing of the charge-sheet, the Central
Government, under the suo motu power conferred in view of the
provision of Section 6(5) of the NIA Act, 2008 has taken over the
investigation to be conducted by the National Investigation Agency
being registered as Special (NIA)08 of 2018, RC No. RC-
23/2018/NIA/DLI.
16. The appellant, however, has surrendered sometime in the year-2021
and since then he is languishing in judicial custody.
17. The appellant, thereafter had preferred an application being Misc.
Criminal Application no. 2854 /2024 for consideration of his regular
bail by taking the ground that Petitioner is in custody since
07.05.2021 and trial of the instant case will not be concluded in near
future and as such the long incarceration of the petitioner is in the
teeth of the principle laid down in under Article 21 of the
Constitution of India, therefore the prayer for regular bail of the
petitioner may be allowed.
Page 5 of 41
18. Per contra learned counsel for the NIA had submitted before the
learned special court that prior to this Application being Misc.
Criminal Application no. 2854 /2024, the petitioner’s (appellant
herein) prayer for bail has been rejected by the learned special
Judge NIA vide order dated 31.08.2023 passed in Misc. Criminal
Application no. 1715 of 2023 and as such the present application is
not fit to be allowed.
19. The learned Special Judge after considering the submissions
advanced by the parties, vide order dated 23.11.2024 passed in
Misc. Criminal Application no. 2854 /2024 has rejected the prayer
for regular bail by taking note of the implication found to be there of
the appellant and the said order is under challenge by filing the
instant appeal by invoking the jurisdiction conferred under Section
21(4) of the NIA Act, 2008.
Submissions advanced by the learned counsel appearing for the
appellant:
20. Mr. P.K. Mukhopadhyay, learned counsel appearing for the appellant
has assailed the impugned order, by which the prayer for bail of the
appellant has been rejected, on the following grounds:
(1) The appellant himself has surrendered in the year 2021 and
is in custody since 07.05.2021, but there is no chance of early
conclusion of the trial and the appellant has remained in custody
for more than four years but without taking into consideration
the same, the prayer for bail has been rejected by the learned
special Court, therefore, considering the long incarceration of the
Page 6 of 41
appellant, it is a fit case where impugned order needs to beinterfered with.
(2) It has been contended by taking the ground that the name of
the present appellant has come in the present case on the basis
of the confessional statement made by the Shyam Bhogata @
Shayam Bhokta @ DC who has also been directed to be released
on bail by Single Bench of this Court vide order dated 20th June,
2018 passed in B.A. No. 1808 of 2018.
(3) It has been contended that the co-accused, namely, Prem
Sagar Mahto and Uchit Mahto, appellants in Criminal Appeal
(DB) No. 305 of 2024 had been allowed to be released from
judicial custody by the order passed by the Co-ordinate Bench of
this Court vide order dated 25.06.2024.
(4) According to the appellant, the case of the present appellant
is identical to the case of Prem Sagar Mahto and Uchit Mahto, the
appellants of Criminal Appeal (DB) No. 305 of 2024, therefore
this appellant is equally qualified for privilege of bail.
(5) Appellant in no way concerned with the TPC group. He was
not arrested on the spot and nothing has been recovered from
his conscious possession to show his proximity with the TPC.
(6) The appellant has falsely been implicated in this case, only on
the basis of the confessional statement of the co-accused
persons. So far, the seizure of the alleged arms and ammunition
is concerned, nothing incriminating articles have been recovered
or seized from conscious possession of the petitioner.
Page 7 of 41
21. The learned counsel for the appellant in support of his argument has
relied upon the judgment passed by the Hon’ble Apex Court in the case
of Union of India Vs. K.A. Najeeb reported in (2021) 3 SCC 713,
wherein in the light of Article 21 of the constitution of India the
personal liberty of individual has been considered as paramount
importance.
22. The learned counsel for the appellant, based upon the aforesaid
grounds, has submitted that the learned court has not taken note of the
aforesaid facts, therefore, the present appeal is fit to be allowed and it is
a fit case where the appellant may be directed to be released on bail.
Submissions advanced by the learned counsel appearing for the
Respondent-NIA:
23. Per contra, Mr. A.K. Das, learned counsel appearing for the NIA has
vehemently opposed the prayer to interfere with the impugned
order by taking aid of the averment made by the National
Investigation Agency in the counter-affidavit.
24. The ground has been taken that allegation against the present
appellant is serious as it would be evident from the first
supplementary charge-sheet submitted in connection with the
present case.
25. It has been submitted that the fact about the involvement of the
present appellant has been taken note by the learned Special Judge
as would be evident from the impugned order.
Page 8 of 41
26. It has been contended by countering the argument of the learned
counsel appearing on behalf of the appellant regarding the principle
of parity so far as which is related to the appellants in Cr. Appeal
(DB) No. 305 of 2024 is concerned, wherein the primary ground
taken for consideration of bail was at that time when 71 witnesses
were to be examined out of which 26 witnesses had only been
examined.
27. It has been contended, on instruction, that at present as of now 40
witnesses have been examined and as per the decision taken by the
competent authority, the number of witnesses have been reduced
and now only 13 witnesses are to be examined.
28. Therefore, the consideration which has been given by the Co-
ordinate Bench while granting bail to the appellants, i.e., Prem Sagar
Mahto and Uchit Mahto in Cr. Appeal (DB) No. 305 of 2024 is not
applicable.
29. The learned counsel further submitted that the question which has
been raised regarding the applicability of the principle as laid down
under Article 21 of the Constitution will not be applicable herein.
30. In response to the argument of the learned counsel for the appellant
that the co-accused, namely, Shyam Bhogata @ Shayam Bhokta @
DC on whose confession the present appellant had been roped in the
instant case, has been granted bail on 20.06.2018 in BA No. 1808 of
2018 as such the present appellant is also eligible for bail, the
learned counsel for the NIA has submitted that the application for
bail was filed by the said accused under Section 439 of the Code of
Page 9 of 41
Criminal Procedure before the learned single Judge and at that time
investigation was not handed over to the NIA and the investigation
was in nascent stage, therefore culpability of said accused has not
been fully established at that time, therefore, the principle of parity
will not be applicable, furthermore in the instant case the conduct of
the appellant is to be seen, since, the appellant remained absconded
for a long time and only in year 2021, he has surrendered and as
such, at this stage where only few witnesses are left to be examined,
and there is chances of his absconding and in such case entire trial
will be jeopardized.
31. The judgment upon which reliance has been placed on behalf of the
learned counsel for the appellant, i.e., on Union of India Vs. K.A.
Najeeb (supra) is not applicable in the facts and circumstances of
the present case since the number of witnesses have been reduced
by substantial margin.
32. It has been contended that in the case of “National Investigation
Agency v. Zahoor Ahmad Shah Watali” (2019) 5 SCC 1, the
Hon’ble Apex Court has held that bail proceedings under the Special
enactment are distinct and the Courts are duty bound to refused bail
where the suspect is prima facie believed to be guilty.
33. It has further been submitted that the Hon’ble Apex Court in the
judgment rendered in “Gurwinder Singh v. State of Punjab and
Another [(2024) SCC OnLine SC 109] has held that “for the
offences under UA(P) Act, bail will be an exception and jail will be
the rule”.
Page 10 of 41
34. Mr. Amit Kumar Das, learned counsel for the respondent-NIA, based
upon the aforesaid grounds, has submitted that since the nature of
allegation levelled against the appellant is very grave, therefore, the
present appeal is fit to be dismissed.
Analysis:
35. We have heard the learned counsel for the parties, perused the
material available on record, the pleading made on behalf of the
appellant as available in Memo of Appeal and the counter affidavit
filed on behalf of the National Investigation Agency.
36. This Court, before appreciating the arguments advanced on behalf of
the parties needs to be referred the underlying principle based upon
that the consideration for prayer for regular bail is to be considered
so far as the penal offences as stipulated in the UAP Act, 1967.
37. The main objective of the Act, 1967 is to make powers available for
dealing with activities directed against the integrity and sovereignty
of India. As per Preamble, the Unlawful Activities (Prevention) Act,
1967 has been enacted to provide for more effective prevention of
certain unlawful activities of individuals and associations and
dealing with terrorist activities and for matters connected
therewith. Therefore, the aim and object of enactment of U.A.(P) Act
is also to provide for more effective prevention of certain unlawful
activities.
38. To achieve the said object and purpose of effective prevention of
certain unlawful activities the Parliament in its wisdom has
provided that where an association is declared unlawful by a
Page 11 of 41
notification issued under Section 3, a person, who is and continues
to be a member of such association shall be punishable with
imprisonment for a term which may extend to 2 years, and shall also
be liable to fine.
39. Clause (m) of Section 2 of the 1967 Act defines “terrorist
organization”. It is defined as an organization listed in the First
Schedule. CPI (Maoist) has been listed at Item no. 34 in the First
Schedule. Chapters III onwards of the 1967 Act incorporate various
offences. Chapter IV has the title “punishment for terrorist act”.
Clause (k) of Section 2 provides that “terrorist act” has the meaning
assigned to it under Section 15 and the terrorist act includes an act
which constitutes an offence within the scope of, and as defined in
any of the treaties specified in the Second Schedule.
40. Further section 10(a)(i) of Act, 1967 provides that where an
association is declared unlawful by a notification issued under
Section 3 which has become effective under sub-section (3) of that
Section, a person, who is continues to be a member of such
association shall be punishable with imprisonment for a term which
may extend to two years, and shall also be liable to fine therefore, so
long as Section 10(a)(i) stands a person who is or continues to be a
member of such association shall be liable to be punished.
41. Further, it would be relevant to mention the offences punishable
under Sections 13 of the 1967 Act, which read thus:
13. Punishment for unlawful activities.–(1) Whoever–
(a) takes part in or commits, or
Page 12 of 41
(b) advocates, abets, advises or incites the commission of,
any unlawful activity, shall be punishable with
imprisonment for a term which may extend to seven
years and shall also be liable to fine. (2) Whoever, in any
way, assists any unlawful activity of any association,
declared unlawful under section 3, after the notification
by which it has been so declared has become effective
under sub-section (3) of that section, shall be punishable
with imprisonment for a term which may extend to five
years, or with fine, or with both. (3) Nothing in this
section shall apply to any treaty, agreement or
convention entered into between the Government of
India and the Government of any other country or to any
negotiations therefor carried on by any person
authorised in this behalf by the Government of India.
42. Thus, it is evident that Section13 prescribes Punishment for
unlawful activities. It is further evident that as per section 13 (1)
Whoever takes part in or commits, or advocates, abets, advises or
incites the commission of, any unlawful activity, shall be punishable
with imprisonment for a term which may extend to seven years and
shall also be liable to fine.
43. Further, The “terrorist act” has been defined under Section 2(k) has
the meaning assigned to it in Section 15. Section 15 contains the
activities which will be treated to be a “terrorist act”. Section 15
reads as under :
“15. Terrorist act.–4(1) Whoever does any act with intent to
threaten or likely to threaten the unity, integrity, security, economic
security, or sovereignty of India or with intent to strike terror or
likely to strike terror in the people or any section of the people in
India or in any foreign country,–
(a) by using bombs, dynamite or other explosive substances or
inflammable substances or firearms or other lethal weapons orPage 13 of 41
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 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.
Page 14 of 41
44. As per the provision of Section 15, whoever has acted with intent
to threaten or likely to threaten the unity, integrity, security,
economic security, or sovereignty of India or with intent to strike
terror or likely to strike terror in the people or any section of the
people in India or in any foreign country would be covered under
the definition of “terrorist act”. This provision, therefore, stipulates
that any activity with an intent to strike terror or likely to strike
terror will come under the fold of terrorist act if done to threaten
the unity, integrity, security, sovereignty of India or economic
security, which has been inserted by way of Act 3 of 2013 with effect
from 01.02.2013.
45. Section 17 provides punishment for raising funds for terrorist act
which reads as under :
“17. Punishment for raising funds for terrorist act.–Whoever, in
India or in a foreign country, directly or indirectly, raises or
provides funds or collects funds, whether from a legitimate or
illegitimate source, from any person or persons or attempts to
provide to, or raises or collects funds for any person or persons,
knowing that such funds are likely to be used, in full or in part by
such person or persons or by a terrorist organisation or by a
terrorist gang or by an individual terrorist to commit a terrorist act,
notwithstanding whether such funds were actually used or not for
commission of such act, shall be punishable with imprisonment for a
term which shall not be less than five years but which may extend to
imprisonment for life, and shall also be liable to fine.Explanation.–For the purpose of this section,–
(a) participating, organising or directing in any of the acts stated
therein shall constitute an offence;
(b) raising funds shall include raising or collecting or providing
funds through production or smuggling or circulation of high
quality counterfeit Indian currency; andPage 15 of 41
(c) raising or collecting or providing funds, in any manner for the
benefit of, or, to an individual terrorist, terrorist gang or terrorist
organisation for the purpose not specifically covered under section
15 shall also be construed as an offence.
46. It is evident from the contents of Section 17 of the Act, 1967 that
whoever, in India or in a foreign country, directly or indirectly,
raises or provides funds or collects funds, whether from a legitimate
or illegitimate source, from any person or persons or attempts to
provide to, or raises or collects funds for any person or persons,
knowing that such funds are likely to be used, in full or in part by
such person or persons or by a terrorist organisation or by a
terrorist gang or by an individual terrorist to commit a terrorist act,
notwithstanding whether such funds were actually used or not for
commission of such act, the same would be covered under the
aforesaid provision. Meaning thereby, raising of funds directly or
indirectly to commit a terrorist act by a terrorist organization or by
terrorist gang or by an individual terrorist, irrespective of the fact
whether this was actually used for commission of such act, would be
punishable under Section 17.
47. Sub-section (c) of Section 17 of the Act, 1967 enlarges the scope of
the terrorist act since the same provides that any act for the benefit
of an individual terrorist, terrorist gang or terrorist organisation
even if not specifically covered under Section 15 shall also be
construed as an offence.
48. At this juncture it will be purposeful to discuss the core of Section
43(d)(5) of the Act 1967 which mandates that the person shall not
be released on bail if the court is of the opinion that there are
reasonable grounds for believing that the accusations made are
Page 16 of 41
prima facie true apart from the other offences the appellant is
accused of committing offences under Sections 17, 18 and 21 of the
UA(P) Act, 1967. For ready reference, the Section 43-D(5) of UAP Act
is being referred herein which reads as under:
“43D. Modified application of certain provisions of the Code-
“(5) Notwithstanding anything contained in the Code, no person
accused of an offence punishable under Chapters IV and VI of this
Act shall, if in custody, be released on bail or on his own bond unless
the Public Prosecutor has been given an opportunity of being heard
on the application for such release: Provided that such accused
person shall not be released on bail or on his own bond if the Court,
on a perusal of the case diary or the report made under section 173
of the Code is of the opinion that there are reasonable grounds for
believing that the accusation against such person is prima facie
true.”
49. It is evident from the perusal of the provision of Section 43-D(5) that
the bail is to be granted only in a situation where the court comes to
the conclusion by taking into consideration the entire material
concluded in course of the investigation, prima facie, found to be
untrue but if the material which has been collected in course of the
investigation found to be true, then the regular bail is not to be given
to such an accused person.
50. The requirement as stipulated under Section 43D(5) of the UA(P)
Act, 1967 in the matter of grant of regular bail fell for consideration
before the Hon’ble Apex Court in the case of National Investigation
Agency v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1] wherein at
paragraph 23 it has been held by interpreting the expression “prima
facie true” as stipulated under Section 43D(5) of the Act, 1967 which
would mean that the materials/evidence collected by the
Page 17 of 41
investigation agency in reference to the accusation against the
accused concerned in the First Information Report, must prevail
until contradicted and overcome or disproved by other evidence,
and on the face of it, shows the complicity of such accused in the
commission of the stated offence.
51. It has further been observed that it must be good and sufficient on
its face to establish a given fact or the chain of facts constituting the
stated offence, unless rebutted or contradicted. The degree of
satisfaction is lighter when the Court has to opine that the
accusation is “prima facie true”, as compared to the opinion of the
accused “not guilty” of such offence as required under the other
special enactments. For ready reference, paragraph 23 of the
aforesaid judgment is required to be quoted herein which reads
hereunder as :-
“23. By virtue of the proviso to sub-section (5), it is the duty of the
Court to be satisfied that there are reasonable grounds for believing
that the accusation against the accused is prima facie true or
otherwise. Our attention was invited to the decisions of this Court,
which has had an occasion to deal with similar special provisions in
TADA and MCOCA. The principle underlying those decisions may
have some bearing while considering the prayer for bail in relation
to the offences under the 1967 Act as well. Notably, under the
special enactments such as TADA, MCOCA and the Narcotic Drugs
and Psychotropic Substances Act, 1985, the Court is required to
record its opinion that there are reasonable grounds for believing
that the accused is “not guilty” of the alleged offence. There is a
degree of difference between the satisfaction to be recorded by the
Court that there are reasonable grounds for believing that the
accused is “not guilty” of such offence and the satisfaction to be
recorded for the purposes of the 1967 Act that there are reasonable
11 grounds for believing that the accusation against such person is
“prima facie” true. By its very nature, the expression “prima faciePage 18 of 41
true” would mean that the materials/evidence collated by the
investigating agency in reference to the accusation against the
accused concerned in the first information report, must prevail until
contradicted and overcome or disproved by other evidence, and on
the face of it, shows the complicity of such accused in the
commission of the stated offence. It must be good and sufficient on
its face to establish a given fact or the chain of facts constituting the
stated offence, unless rebutted or contradicted. In one sense, the
degree of satisfaction is lighter when the Court has to opine that the
accusation is “prima facie true”, as compared to the opinion of the
accused “not guilty” of such offence as required under the other
special enactments. In any case, the degree of satisfaction to be
recorded by the Court for opining that there are reasonable grounds
for believing that the accusation against the accused is prima facie
true, is lighter than the degree of satisfaction to be recorded for
considering a discharge application or framing of charges in
relation to offences under the 1967 Act….”
52. It is, thus, evident from the proposition laid down by the Hon’ble
Apex Court in the case of National Investigation Agency v. Zahoor
Ahmad Shah Watali (Supra) that it is the bounden duty of the
Court to apply its mind to examine the entire materials on record for
the purpose of satisfying itself, whether a prima facie case is made
out against the accused or not.
53. Further it is settled proposition of law that at the stage of granting
or non-granting of the bail, the Court is merely expected to record a
finding on the basis of broad probabilities regarding the
involvement of the accused in the commission of the stated offence
or otherwise and the elaborate examination or dissection of the
evidence is not required to be done at this stage.
54. Further, the Hon’ble Apex Court by setting out propounding the law
in the same case of National Investigation Agency v. Zahoor
Page 19 of 41
Ahmad Shah Watali (supra), has observed that the elaborate
examination or dissection of the evidence is not required to be done
at this stage and the Court is merely expected to record a finding on
the basis of broad probabilities regarding the involvement of the
accused in the commission of the stated offence or otherwise. For
ready reference paragraph 24,25 and 26 of the aforesaid judgment
is being quoted herein under:-
“24. A priori, the exercise to be undertaken by the Court at this
stage–of giving reasons for grant or nongrant of bail–is markedly
different from discussing merits or demerits of the evidence. The
elaborate examination or dissection of the evidence is not required
to be done at this stage. The Court is merely expected to record a
finding on the basis of broad probabilities regarding the
involvement of the accused in the commission of the stated offence
or otherwise.
25. From the analysis of the impugned judgment, it appears to us
that the High Court has ventured into an area of examining the
merits and demerits of the evidence. For, it noted that the evidence
in the form of statements of witnesses under Section 161 are not
admissible. Further, the documents pressed into service by the
investigating agency were not admissible in evidence. It also noted
that it was unlikely that the document had been recovered from the
residence of Ghulam Mohammad Bhatt till 16-8-2017 (para 61 of
the impugned judgment). Similarly, the approach of the High Court
in completely discarding the statements of the protected witnesses
recorded under Section 164 CrPC, on the specious ground that the
same was kept in a sealed cover and was not even perused by the
Designated Court and also because reference to such statements
having been recorded was not found in the charge-sheet already
filed against the respondent is, in our opinion, in complete disregard
of the duty of the Court to record its opinion that the accusation
made against the accused concerned is prima facie true or
otherwise. That opinion must be reached by the Court not only in
reference to the accusation in the FIR but also in reference to the
contents of the case diary and including the charge-sheet (reportPage 20 of 41
under Section 173 Cr.P.C.) and other material gathered by the
investigating agency during investigation.”
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 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.”
55. It is, thus, evident that the exercise to be undertaken by the court at
this stage of granting bail of giving reasons for grant or non-grant of
bail that 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. Rather, 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.
Page 21 of 41
56. Further it is the duty of the Court to record its opinion that the
accusation made against the accused concerned is prima facie true
or otherwise and such opinion must be reached by the Court not
only in reference to the accusation in the FIR but also in reference to
the contents of the case diary and including the charge-sheet (report
under Section 173 CrPC) and other material gathered by the
investigating agency during investigation. Reference in this regard
may be taken from the Judgment as rendered by the Hon’ble Apex
Court in the case of Ranjitsing Brahmajeetsing Sharma v. State of
Maharashtra reported in (2005) 5 SCC 294. For ready reference
the following paragraph of the aforesaid Judgment is being quoted
herein under:-
“46. The duty of the court at this stage is not to weigh the
evidence meticulously but to arrive at a finding on the basis of
broad probabilities. However, while dealing with a special statute
like MCOCA having regard to the provisions contained in sub-section
(4) of Section 21 of the Act, the court may have to probe into the
matter deeper so as to enable it to arrive at a finding that the
materials collected against the accused during the investigation
may not justify a judgment of conviction. The findings recorded by
the court while granting or refusing bail undoubtedly would be
tentative in nature, which may not have any bearing on the merit of
the case and the trial court would, thus, be free to decide the case on
the basis of evidence adduced at the trial, without in any manner
being prejudiced thereby.”
57. The Hon’ble Apex Court in a very recent judgment rendered in
Gurwinder Singh Vs State of Punjab and Another (supra) while
taking in to consideration of the judgment as rendered in the
National Investigation Agency v. Zahoor Ahmad Shah Watali
(supra) and Union of India Vs. K.A. Najeeb (supra) has observed
Page 22 of 41
that, the proviso to Sub-section (5) of Section 43D puts a complete
embargo on the powers of the Special Court to release an accused on
bail and lays down that if the Court, ‘on perusal of the case diary or
the report made under Section 173 of the Code of Criminal Procedure’,
is of the opinion that there are reasonable grounds for believing that
the accusation, against such person, as regards commission of
offence or offences under Chapter IV and/or Chapter VI of the UAP
Act is prima facie true, such accused person shall not be released on
bail or on his own bond.
58. The Hon’ble Apex Court further observed that the conventional idea
in bail jurisprudence vis-à-vis ordinary penal offences that the
discretion of Courts must tilt in favour of the oft-quoted phrase –
‘bail is the rule, jail is the exception’ – unless circumstances justify
otherwise – does not find any place while dealing with bail
applications under UAP Act and the ‘exercise’ of the general power
to grant bail under the UAP Act is severely restrictive in scope.
59. In the aforesaid context it has further been observed by the Hon’ble
Apex Court that the courts are, therefore, burdened with a sensitive
task on hand and in dealing with bail applications under UAP Act,
the courts are merely examining if there is justification to reject bail
and the ‘justifications’ must be searched from the case diary and the
final report submitted before the Special Court.
60. In the aforesaid background the Hon’ble Apex Court has held that
the test for rejection of bail is quite plain and Bail must be rejected
as a ‘rule’, if after hearing the public prosecutor and after perusing
Page 23 of 41
the final report or Case Diary, the Court arrives at a conclusion that
there are reasonable grounds for believing that the accusations are
prima facie true. It has further been observed that it is only if the
test for rejection of bail is not satisfied – that the Courts would
proceed to decide the bail application in accordance with the ‘tripod
test’ (flight risk, influencing witnesses, tampering with
evidence).
61. For ready reference following paragraphs of the aforesaid Judgment
are being quoted herein under:
“27. A bare reading of Sub-section (5) of Section 43D shows that
apart from the fact that Sub-section (5) bars a Special Court from
releasing an accused on bail without affording the Public
Prosecutor an opportunity of being heard on the application seeking
release of an accused on bail, the proviso to Sub-section (5) of
Section 43D puts a complete embargo on the powers of the Special
Court to release an accused on bail. It lays down that if the Court,
‘on perusal of the case diary or the report made under Section 173
of the Code of Criminal Procedure’, is of the opinion that there are
reasonable grounds for believing that the accusation, against such
person, as regards commission of offence or offences under Chapter
IV and/or Chapter VI of the UAP Act is prima facie true, such
accused person shall not be released on bail or on his own bond. It
is interesting to note that there is no analogous provision traceable
in any other statute to the one found in Section 43D(5) of the UAP
Act. In that sense, the language of bail limitation adopted therein
remains unique to the UAP Act.
28. The conventional idea in bail jurisprudence vis-à-vis ordinary
penal offences that the discretion of Courts must tilt in favour of the
oft-quoted phrase – ‘bail is the rule, jail is the exception’ – unless
circumstances justify otherwise – does not find any place while
dealing with bail applications under UAP Act. The ‘exercise’ of the
general power to grant bail under the UAP Act is severely restrictive
in scope. The form of the words used in proviso to Section 43D (5)–
‘shall not be released’ in contrast with the form of the words asPage 24 of 41
found in Section 437(1) CrPC – ‘may be released’ – suggests the
intention of the Legislature to make bail, the exception and jail, the
rule.
29. The courts are, therefore, burdened with a sensitive task on
hand. In dealing with bail applications under UAP Act, the courts
are merely examining if there is justification to reject bail. The
‘justifications’ must be searched from the case diary and the final
report submitted before the Special Court. The legislature has
prescribed a low, ‘prima facie’ standard, as a measure of the degree
of satisfaction, to be recorded by Court when scrutinising the
justifications [materials on record]. This standard can be contrasted
with the standard of ‘strong suspicion’, which is used by Courts
while hearing applications for ‘discharge–”
62. In this background, the test for rejection of bail is quite plain. Bail
must be rejected as a ‘rule’, if after hearing the public prosecutor
and after perusing the final report or Case Diary, the Court arrives at
a conclusion that there are reasonable grounds for believing that the
accusations are prima facie true. It is only if the test for rejection of
bail is not satisfied that the Courts would proceed to decide the bail
application in accordance with the ‘tripod test’ (flight risk,
influencing witnesses, tampering with evidence). This position is
made clear by Sub-section (6) of Section 43D, which lays down that
the restrictions, on granting of bail specified in Sub-section (5), are
in addition to the restrictions under the Code of Criminal Procedure
or any other law for the time being in force on grant of bail.
63. The Hon’ble Apex Court in the aforesaid judgment after textual
reading of Section 43D(5) UAP Act, has formulated the guideline
which was summarized in the form of a twin-prong test. For ready
reference the relevant paragraph is being quoted herein under:
Page 25 of 41
“31. On a textual reading of Section 43 D(5) UAP Act, the inquiry
that a bail court must undertake while deciding bail applications
under the UAP Act can be summarised in the form of a twin-prong
test:
1) Whether the test for rejection of the bail is satisfied?
1.1 Examine if, prima facie, the alleged ‘accusations’ make out an
offence under Chapter IV or VI of the UAP Act
1.2 Such examination should be limited to case diary and final report
submitted under Section 173 CrPC;
2) Whether the accused deserves to be enlarged on bail in light of
the general principles relating to grant of bail under Section 439
CrPC (‘tripod test’)?”
64. Further, it is settled proposition of law that at the stage of granting
or non-granting of the bail, the Court is merely expected to record a
finding on the basis of broad probabilities regarding the
involvement of the accused in the commission of the stated offence
or otherwise and the elaborate examination or dissection of the
evidence is not required to be done at this stage.
65. Further, it is the duty of the Court to record its opinion that the
accusation made against the accused concerned is prima facie true
or otherwise and such opinion must be reached by the Court not
only in reference to the accusation in the FIR but also in reference to
the contents of the charge-sheet and other material gathered by the
investigating agency during investigation.
66. This Court, on the basis of the abovementioned position of law and
the factual aspect, as has been gathered against the appellant, is
proceeding to examine as to whether the accusation against the
appellant is prima facie true as compared to the opinion of accused
Page 26 of 41
not guilty by taking into consideration the material collected incourse of investigation.
67. Counter affidavit has been filed by the respondent wherein the
various accusation based upon the investigation has been stated
against the present appellant.
68. It is evident from the perusal of record that Special (NIA) Case No.
08/2018 arising out of R.C. Case No.23/2018/NIA/DLI
corresponding to Panki PS case no 157 of 2017 in which allegation
was made that, on 23.11.2017, in Panki market, the Police team got
information that one TPC operative is coming from Piprataand side
and going towards Balumath. Subsequently, acting on the input, the
police arrested TPC operative Shyam Bhokta @ DC (A-1) co-accused
of the instant case from the Amaanat Barrage made on Amaanat
River and Rs 5 lakh cash, 01 country made Pistol and 02 live rounds
and 01 empty fired case and other incriminating items were
recovered and seized from his possession. On the basis of the same
FIR No. 157/17 dated 23.11.2017 was registered at PS Panki, Distt.
Palamu, against the TPC operative Shyam Bhokta @ DC and other 09
co-accused persons involved in the conspiracy. Huge cache of
Arms/ammunitions and other incriminating items were recovered
from Lambitaand Hills at the instance of accused Shyam Bhokta @
DC and from possession of Uchit Mahto and Premsagar Mahto. On
recovery of arms/ammunition along with other incriminating
materials, another FIR No. 158/2017 dated 23.11.2017 was lodged
in the same PS Panki on the same day.
Page 27 of 41
69. It is evident that appreciating the gravity of the offence in the instant
crime the Central Government in exercise of the powers conferred
under sub- section 5 of section 6 read with section 8 of the National
Investigation Agency Act, 2008 directed NIA to take up investigation
of the case.
70. Thereafter, NIA took up the investigation of the case from the state
police and after investigation, submitted 1st Supplementary charge
sheet No. 18/2019 on 23.07.2019 against the 08 accused persons
including the accused Petitioner by keeping further investigation
continued u/s 173(8) of Cr.P.C. against absconding accused persons
under section 120B r/w 386, 411 of IPC, sections 25(1B)(a) and 26
of the Arms Act, under section 17, 18 and 20 of the UA (P) Act and
section 17 of CLA Act. Accordingly, learned court has took
cognizance of offences subsequently charge has been framed.
71. It has come in the investigation that the accused petitioner
Nageshwar Ganjhu @ Tarunji (A-8) was earlier a Maoist and joined
TPC, and worked under top Commander of TPC, terrorist gang/
unlawful association, proscribed by the Jharkhand Government. He
criminally conspired with co-accused persons for making extortion
and collected funds for TPC through illegitimate sources. Further,
documents seized during search from his brother-in-law namely
Nand Kishore Ganjhu house disclose that the incriminating
documents belongs to petitioner accused Nageshwar Ganjhu @
Dhirendra Bhokta @ Tarunji.
Page 28 of 41
72. Thus, as per the evidence collected on record, in charge-sheet it is
revealed that Nageshwar Ganjhu @ Dhirendra Bhokta @ Tarunji is
an armed cadre of TPC, a terrorist gang and was earlier an operative
of CPI(Maoist). He used to extort levy from local contractors and
businessmen He used to hold meetings organized by top
commanders of TPC. He criminally conspired with A-1 and other co-
accused persons and used to commit terrorist activities in the area.
The documents seized during the investigation establish that he
used to raise funds for strengthening the TPC. He along with other
TPC operatives used to extort levy from Tendu leaf traders, road
bridge contractors and others. He and other TPC operatives also got
shares from the collected levy. He along with A- 5. A-6, A-7 and other
co-accused person gave Rs 7,00,000/-(Rupees seven lakhs) to A-1
Being TPC member, he conspired with other co-accused persons for
dumping the Arms and Ammunition of TPC at Lambitaand hills
which were subsequently seized at the instance of A-1.
73. Further, the case has also been supported by the deposition of
independent witnesses cited as protected witnesses whose
statements were recorded under section 161 and 164 of Cr P.C.
74. From record it is evident that after investigation, petitioner has been
charge-sheeted for offences under sections 120B r/w 386, 411 of
IPC, sections 25(1B)a and 26 of the Arms Act, section 17 of CLA Act
and the substantive offences under sections 17, 18 and 20 of the UA
(P) Act. Further charge against petitioner and others was already
framed in this case on 23.08.2022.
Page 29 of 41
75. Thus, it appears that there is sufficient prima facie evidence which
indicate the complicity of the appellant in the alleged offence.
76. The learned counsel for the appellant has emphatically contended
that if the period of custody of the appellant will be taken into
consideration, same is in the teeth of Article 21 of the Constitution of
India, hence appellant may enlarge to privilege of bail.
77. In the context of aforesaid this Court is of view that there is no
quarrel about the settled position of law that Article 21 of the
Constitution of India provides for protecting the fundamental right
of liberty but that is to be assessed by carving out the balance in
enforcing the law and order and merely because the custody is
there, the availability of other cogent evidence which prima facie
indicates the involvement of accused/appellant with the proscribed
organization cannot be ignored.
78. Therefore, mere delay in trial pertaining to grave offences as one
involved in the instant case cannot be used as a ground to grant bail
reference in this regard may be made to the judgment rendered by
the Hon’ble Apex Court in the case of Gurwinder Singh v. State of
Punjab, (supra). For ready reference the relevant paragraph is
being quoted as under:
46. As already discussed, the material available on record
indicates the involvement of the appellant in furtherance of
terrorist activities backed by members of banned terrorist
organisation involving exchange of large quantum of money
through different channels which needs to be deciphered and
therefore in such a scenario if the appellant is released on bail
there is every likelihood that he will influence the key
witnesses of the case which might hamper the process ofPage 30 of 41
justice. Therefore, mere delay in trial pertaining to grave
offences as one involved in the instant case cannot be used as
a ground to grant bail. Hence, the aforesaid argument on
behalf of the appellant cannot be accepted.
79. Thus, it is settled proposition of law that any form of deprival of
liberty must be justified on the ground of being reasonable,
following a just and fair procedure. In the instant case as we
discussed herein above that prima facie the culpability of the
appellant/ accused has been established on the basis investigation
culminated in to charge-sheet and further the protected witnesses
has corroborated the prosecution case and further the trial of the
instant case is continuing therefore in the instant case, it appears
that all the due procedure has been followed.
80. Since the learned counsel for the appellant has relied upon the
judgment of K.A. Najeeb (supra), so as to interfere with the
impugned order, therefore, this Court deems it fit and proper to
going through the judgment as referred by learned counsel for the
appellant.
81. The Appellant’s counsel has relied upon the case of K.A. Najeeb
(supra) to back its contention that the appellant has been in jail in
the instant case since 2021 which is contrary to law laid down in the
aforesaid case. While this argument may appear compelling at first
glance, it lacks depth and substance.
82. In K.A. Najeeb‘s (supra), the Hon’ble Apex Court was confronted
with a circumstance wherein except the respondent-accused, other
co- accused had already undergone trial and were sentenced to
imprisonment of not exceeding eight years therefore the Hon’ble
Apex Court while considering the fact that since the respondent-
Page 31 of 41
accused had already served portion of the maximum imprisonment
i.e., more than five years, hence not interfered in order granting bail.
83. Further, in KA Najeeb‘s case the trial of the respondent-accused
was severed from the other co-accused owing to his absconding and
he was traced back in 2015 and was being separately tried
thereafter and the NIA had filed a long list of witnesses that were left
to be examined with reference to the said accused.
84. The Hon’ble Apex Court taking in to consideration the huge number
of witnesses i.e. 276, put a pin-pointed question therein for reducing
the number of witnesses by the investigating agency and when the
same has been shown to be not possible then the Hon’ble Apex
Court, by taking into consideration the period of custody and there
is no likelihood of conclusion of the trial in near future, has not
interfered in the order granting bail to the respondent-accused.
85. While, the fact of the instant case is that there are only 53 witnesses
approximately which is very much less in comparison to 276
witnesses of aforesaid case.
86. Adverting to the factual aspects of the present case both on the
principle of Section 43-D(5) and the judgment rendered in the case
of Union of India Vs. K.A. Najeeb (supra) along with the Article 21
of the Constitution of India, the fact which has come against the
appellant as per the first supplementary charge-sheet needs to be
referred herein which reads as:-
Role and activities of offences established against
Nageshhwar Ganjhu @ Tarun ji (A-8):
Page 32 of 41
Therefore, as per the evidence collected on record, in charge-sheet it
is revealed that Nageshwar Ganjhu @ Dhirendra Bhokta @ Tarunji
is an armed cadre of TPC, a terrorist gang and was earlier an
operative of CPI(Maoist). He used to extort levy from local
contractors and businessmen He used to hold meetings organized by
top commanders of TPC. He criminally conspired with A-1 and other
co-accused persons and used to commit terrorist activities in the
area. The documents seized during the investigation establish that
he used to raise funds for strengthening the TPC. He along with
other TPC operatives used to extort levy from Tendu leaf traders,
road bridge contractors and others. He and other TPC operatives
also got shares from the collected levy. He along with A- 5. A-6, A-7
and other co-accused person gave Rs 7,00,000/-(Rupees seven
lakhs) to A-1 Being TPC member, he conspired with other co-
accused persons for dumping the Arms and Ammunition of TPC at
Lambitaand hills which were subsequently seized at the instance of
A-1.
87. Thus, the nature of the allegation has shown to be there prima facie
attracting the ingredient of Section 17, 18, 19, 20, 21 and 23 of the
UAP Act along with the other allied penal offences.
88. Further, herein in the instant case, as per the submission of the
learned counsel for NIA number of witnesses have been reduced and
further in the instant case direct nexus has been shown by the
charge-sheet and from the relevant part of charge-sheet prima facie
appears that the present appellant being member of the extremist
organisation has extorted the levy from the trader and contractor.
89. Thus, this Court is of the view that in the facts and circumstances the
judgment rendered by the Hon’ble Apex court in Union of India Vs.
K.A. Najeeb(supra) will not be applicable in fact and circumstances
of instant case.
90. Further it is settled proposition of law that the applicability of the
judgment depends upon the facts and circumstances of each and
Page 33 of 41
every case and there cannot be any universal application of the
judgment rather each judgment is to be decided on the basis of fact
of each case. Reference in this regard may be taken from the
judgment as rendered by the Hon’ble Supreme Court in Dr.
Subramanian Swamy vs. State of Tamil Nadu & Ors. reported in
(2014) 5 SCC 75 for ready reference the relevant paragraph is being
quoted herein under :
“47. It is a settled legal proposition that the ratio of any decision must be
understood in the background of the facts of that case and the case is only
an authority for what it actually decides, and not what logically follows
from it. “The court should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact situation of
the decision on which reliance is placed.”
Issue of parity
91. The issue of parity with the Prem Sagar Mahto and Uchit Mahto has
also been taken as they have been allowed to be released on bail
vide order dated 25.06.2024 passed by the Co-ordinate Bench of this
Court in Cr. Appeal (DB) No. 305 of 2024.
92. We have considered the reasoning given by the Co-ordinate Bench
wherein the reference has been given that the appellants, namely,
Prem Sagar Mahto and Uchit Mahto were in custody since
04.12.2017 and out of 71 charge-sheeted witnesses, 26 witnesses
have been examined.
93. It is evident from the order dated 25.06.2024 that the Co-ordinate
Bench has not gone into the issue of merit regarding the culpability
said to be committed by the appellants of the Cr. Appeal (DB) No.
305 of 2024, and has taken into consideration the delay in
Page 34 of 41
conclusion of the trial and the long incarceration of the said
appellants as they were in custody since 04.12.2017.
94. Herein, the fact about the custody of the present appellant is that he
is languishing in custody since 07.05.2021 as he remained
absconded from the case for last 4 years.
95. The issue of parity, no dispute, is to be taken into consideration but
the same is to be taken into consideration by applying the factual
aspect along with the surrounding facts, as has been held by Hon’ble
Apex Court in the case of Tarun Kumar vs. Assistant Director
Directorate of Enforcement, 2023 SCC OnLine SC 1486 wherein it
has held as under:
“18. The submission of learned Counsel Mr. Luthra to grant bail to the
appellant on the ground that the other coaccused who were similarly
situated as the appellant, have been granted bail, also cannot be
accepted. It may be noted that parity is not the law. While applying
the principle of parity, the Court is required to focus upon the role
attached to the accused whose application is under consideration.”
96. It is further settled connotation of law that Court cannot exercise its
powers in a capricious manner and has to consider the totality of
circumstances before granting bail and by only simply saying that
another accused has been granted bail is not sufficient to determine
whether a case for grant of bail on the basis of parity has been
established. Reference in this regard may be made to the judgment
rendered by the Hon’ble Apex Court in Ramesh Bhavan Rathod vs.
Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230 wherein it has
been held as under:
Page 35 of 41
“25. We are constrained to observe that the orders passed by the
High Court granting bail fail to pass muster under the law. They are
oblivious to, and innocent of, the nature and gravity of the alleged
offences and to the severity of the punishment in the event of
conviction. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of
U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527], this Court has held
that while applying the principle of parity, the High Court cannot
exercise its powers in a capricious manner and has to consider the
totality of circumstances before granting bail. This Court observed :
(SCC p. 515, para 17)
“17. Coming to the case at hand, it is found that when a stand was
taken that the second respondent was a history-sheeter, it was
imperative on the part of the High Court to scrutinise every aspect
and not capriciously record that the second respondent is entitled to
be admitted to bail on the ground of parity. It can be stated with
absolute certitude that it was not a case of parity and, therefore, the
impugned order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All
16031] clearly exposes the non-application of mind. That apart, as a
matter of fact it has been brought on record that the second
respondent has been charge-sheeted in respect of number of other
heinous offences. The High Court has failed to take note of the same.
Therefore, the order has to pave the path of extinction, for its
approval by this Court would tantamount to travesty of justice, and
accordingly we set it aside.”
26. Another aspect of the case which needs emphasis is the manner
in which the High Court has applied the principle of parity. By its
two orders both dated 21-12- 2020 [Pravinbhai Hirabhai Koli v.
State of Gujarat, 2020 SCC OnLine Guj 2986] , [Khetabhai
Parbatbhai Makwana v. State of Gujarat, 2020 SCC OnLine Guj
2988] , the High Court granted bail to Pravin Koli (A-10) and Kheta
Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha
Vaghela (A-13) to whom bail was granted on 22-10-2020
[Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC
OnLine Guj 2985] on the ground (as the High Court recorded) that
he was “assigned similar role of armed with stick (sic)”. Again, bail
was granted to Vanraj Koli (A16) on the ground that he was armed
with a wooden stick and on the ground that Pravin (A-10), Kheta
(A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had
been granted bail. The High Court has evidently misunderstood the
central aspect of what is meant by parity. Parity while granting bail
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must focus upon the role of the accused. Merely observing that
another accused who was granted bail was armed with a similar
weapon is not sufficient to determine whether a case for the grant of
bail on the basis of parity has been established. In deciding the
aspect of parity, the role attached to the accused, their position in
relation to the incident and to the victims is of utmost importance.
The High Court has proceeded on the basis of parity on a simplistic
assessment as noted above, which again cannot pass muster under
the law.”
97. Mr. Amit Kumar Das, learned counsel appearing for the NIA, on
instruction, has submitted at bar that altogether 53 witnesses are to
be examined, out of which 40 witnesses have already been examined
and only 13 witnesses are to be examined.
98. This Court, therefore, is of the view that the case of the present
appellant shall not fall under the category of parity to be arrived on
the basis of the order passed by the Co-ordinate Bench dated
25.06.2024 passed in Cr. Appeal (DB) No. 305 of 2024.
99. This Court, in view of the principle laid down so far as the
applicability of principle of parity is concerned, is of the view that in
view of the pruning of number of witnesses and further taking into
consideration the conduct of the present appellant herein the
principle of parity is not fit to be applied.
100. Further, as has been submitted by Mr. Das that the trial is going on
day-to-day and as such at this moment if the appellant will be
allowed to be released, the same will jeopardize the further
proceeding in the trial since the appellant surrendered in the case
after lapse of about more than four years.
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101. This Court cannot dispute such submission taking into
consideration, the conduct of the present appellant, who remained
absconded from the case for last 4 years and as has been submitted
by the learned counsel that when the State has come with the
Surrender Policy, he has surrendered which also suggests that the
appellant was avoiding the arrest by not presenting himself before
the judicial system and thereby created hurdle in progress of the
trial.
102. So far as the case of Shyam Bhogata @ Shyam Bhokta @ DC, the
petitioner in BA No. 1808 of 2018 is concerned, the said order will
not be applicable on the basis of the parity reason being that the
application for bail was filed by the said accused under Section 439
of the Code of Criminal Procedure before the learned single Judge
and at that time investigation was not handed over to the NIA and
the investigation was in nascent stage, therefore culpability of said
accused has not been fully established at that time, furthermore in
the instant case the conduct of the appellant is to be seen, since, the
appellant remained absconded for a long time and only in year 2021,
he has surrendered and as such, at this stage where only few
witnesses are left to be examined, there is chances of his
absconding and in such case entire trial will be jeopardized.
103. Since we have referred the provision of Section 43-D(5) coupled
with the judgment passed by the Hon’ble Apex Court in the case of
National Investigation Agency v. Zahoor Ahmad Shah Watali
[(2019) 5 SCC 1] and as such by taking into consideration the
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imputation which has come in course of investigation is of the view
that the allegation cannot be said to be prima facie untrue.
104. Further, it needs to refer herein that Hon’ble Apex Court in the case
of Jayendra Saraswathi Swamigal v. State of T.N. (2005) 2 SCC 13
has observed that the considerations which normally weigh with the
court in granting bail in non-bailable offences, basically they are —
the nature and seriousness of the offence; the character of the
evidence; circumstances which are peculiar to the accused; a
reasonable possibility of the presence of the accused not being
secured at the trial; reasonable apprehension of witnesses being
tampered with; the larger interest of the public or the State and
other similar factors which may be relevant in the facts and
circumstances of the case. For ready reference the relevant
paragraph of the aforesaid judgment is being quoted as under:
“16. … The considerations which normally weigh with the court in
granting bail in non-bailable offences have been explained by this
Court in State v. Jagjit Singh [State v. Jagjit Singh, 1960 SCC OnLine
SC 2 : (1962) 3 SCR 622 : AIR 1962 SC 253] and Gurcharan Singh v.
State (UT of Delhi) [Gurcharan Singh v. State (UT of Delhi), (1978) 1
SCC 118 : 1978 SCC (Cri) 41] and basically they are — the nature
and seriousness of the offence; the character of the evidence;
circumstances which are peculiar to the accused; a reasonable
possibility of the presence of the accused not being secured at the
trial; reasonable apprehension of witnesses being tampered with;
the larger interest of the public or the State and other similar
factors which may be relevant in the facts and circumstances of the
case.” ‘”
105. So, this Court considering the applicability of the provision of
Section 43-D(5) along with the conduct of the present appellant and
on the face of the trial which is going on day-to-day basis wherein
only 13 witnesses are to be examined therefore at this juncture if
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the appellant is to be allowed to be released on bail, considering his
conduct, there is likelihood of hamper the progress of the trial.
106. As such this Court is of the view by going through imputation as
has found in course of investigation that the complicity of the
appellant in the alleged crime cannot be denied. It is thus evident
that this Court on the aforesaid allegation cannot come to the
conclusion that whatever has come in course of investigation against
the appellant is said to be prima facie untrue rather this Court is of
the view that the allegations are sufficient to come to the conclusion
that the allegation is prima facie true.
107. Therefore, this Court is of the view that it will not to be just and
proper to interfere with the impugned order. This Court is also of
the view while coming to the aforesaid conclusion that as per the
chargesheet the specific attributability has been casted upon the
petitioner regarding the commission of offence said to attract the
criminal offence under UA(P) Act.
108. In view of the foregoing discussions, we find no illegality in the
impugned order dated 23.11.2024 passed in Misc. Criminal
Application No. 2854 of 2024 by learned Additional Judicial
Commissioner-XVI-cum Special Judge, NIA, Ranchi in connection
with Special (NIA) 08 of 2018 (R.C case no 23/2018/NIA/DLI)
arising out of Panki PS case no 157 of 2017, as such, we are of the
view that the instant appeal lacks merit.
109. In the result, we find no merit in instant appeal, hence, the same is
dismissed.
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110. Pending Interlocutory Application(s), if any, also stands dismissed.
111. We make it clear that the prima facie findings recorded in this
judgment are only for considering the prayer for bail of the
appellant. The reasons are confined to the prayer for bail of the
appellant. The same will have no bearing on the trial of the case of
the appellant and other co-accused.
(Sujit Narayan Prasad, J.)
(Gautam Kumar Choudhary J.)
Samarth/ A.F.R.
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