Delhi High Court
Jagtar Singh Johal @ Jaggi vs National Investigation Agency on 18 September, 2024
Author: Prathiba M. Singh
Bench: Prathiba M. Singh, Amit Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28th August, 2024
Pronounced on: 18th September, 2024
+
CRL.A. 493/2023 & CRL.M.A.16870/2023
JAGTAR SINGH JOHAL @ JAGGI .....Appellant
Through: Mr. Paramjeet Singh, Advocate.
versus
NATIONAL INVESTIGATION AGENCY .....Respondent
Through: Mr. S.V. Raju, ASG with Ms. Shilpa
Singh, Spl. PP N.I.A with Ms. Zeena
Malick, PP, Mr. Nishchay Johri, Adv.,
Mr. Ram Gopal. Dy. SP N.I.A, Mr.
Pawan Singh Rana, Consultant & Mr.
Manoj Kumar Yadav, Insp. N.I.A.
WITH
+ CRL.A. 538/2023 & CRL.M.A. 17982/2023
JAGTAR SINGH JOHAL @ JAGGI .....Appellant
Through: Mr. Paramjeet Singh, Advocate.
versus
NATIONAL INVESTIGATION AGENCY .....Respondent
Through: Mr. S.V. Raju, ASG, Ms. Shilpa
Singh, Spl. PP N.I.A with Ms. Zeena
Malick, PP, Mr. Nishchay Johri, Adv.,
Mr. Ram Gopal. Dy. SP N.I.A, Mr.
Pawan Singh Rana, Consultant & Mr.
Manoj Kumar Yadav, Insp. N.I.A.
WITH
+ CRL.A. 539/2023 & CRL.M.A. 17983/2023
JAGTAR SINGH JOHAL @ JAGGI .....Appellant
Through: Mr. Paramjeet Singh, Advocate.
versus
NATIONAL INVESTIGATION AGENCY .....Respondent
Signature Not Verified CRL.A.493/2023 & connected matters Page 1 of 62
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:18.09.2024
18:28
Through: Mr. S.V. Raju, ASG, Ms. Shilpa
Singh, Spl. PP N.I.A with Ms. Zeena
Malick, PP, Mr. Nishchay Johri, Adv.,
Mr. Ram Gopal. Dy. SP N.I.A, Mr.
Pawan Singh Rana, Consultant & Mr.
Manoj Kumar Yadav, Insp. N.I.A.
WITH
+ CRL.A. 540/2023 & CRL.M.A. 17984/2023
JAGTAR SINGH JOHAL @ JAGGI .....Appellant
Through: Mr. Paramjeet Singh, Advocate.
versus
NATIONAL INVESTIGATION AGENCY .....Respondent
Through: Mr. S.V. Raju, ASG, Ms. Shilpa
Singh, Spl. PP N.I.A with Ms. Zeena
Malick, PP, Mr. Nishchay Johri, Adv.,
Mr. Ram Gopal. Dy. SP N.I.A, Mr.
Pawan Singh Rana, Consultant & Mr.
Manoj Kumar Yadav, Insp. N.I.A.
WITH
+ CRL.A. 541/2023 & CRL.M.A. 17985/2023
JAGTAR SINGH JOHAL @ JAGGI .....Appellant
Through: Mr. Paramjeet Singh, Advocate.
versus
NATIONAL INVESTIGATION AGENCY .....Respondent
Through: Mr. S.V. Raju, ASG, Ms. Shilpa
Singh, Spl. PP N.I.A with Ms. Zeena
Malick, PP, Mr. Nishchay Johri, Adv.,
Mr. Ram Gopal. Dy. SP N.I.A, Mr.
Pawan Singh Rana, Consultant & Mr.
Manoj Kumar Yadav, Insp. N.I.A.
WITH
Signature Not Verified CRL.A.493/2023 & connected matters Page 2 of 62
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:18.09.2024
18:28
+ CRL.A. 569/2024
JAGTAR SINGH JOHAL @ JAGGI .....Appellant
Through: Mr. Paramjeet Singh, Advocate.
versus
NATIONAL INVESTIGATION AGENCY .....Respondent
Through: Mr. S.V. Raju, ASG, Ms. Shilpa
Singh, Spl. PP N.I.A with Ms. Zeena
Malick, PP, Mr. Nishchay Johri, Adv.,
Mr. Ram Gopal. Dy. SP N.I.A, Mr.
Pawan Singh Rana, Consultant & Mr.
Manoj Kumar Yadav, Insp. N.I.A.
AND
+ CRL.A. 577/2024
JAGTAR SINGH JOHAL @ JAGGI .....Appellant
Through: Mr. Paramjeet Singh, Advocate.
versus
NATIONAL INVESTIGATION AGENCY .....Respondent
Through: Mr. S.V. Raju, ASG, Ms. Shilpa
Singh, Spl. PP N.I.A with Ms. Zeena
Malick, PP, Mr. Nishchay Johri, Adv.,
Mr. Ram Gopal. Dy. SP N.I.A, Mr.
Pawan Singh Rana, Consultant & Mr.
Manoj Kumar Yadav, Insp. N.I.A.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
JUDGMENT
Prathiba M. Singh, J.
1. This hearing has been held through hybrid mode.
2. The present batch of seven appeals filed by the Appellant-Jagtar Singh
Johal @ Jaggi, arise out of five impugned orders dated 7th September 2022
and two impugned orders dated 25th April, 2024, in separate cases, passed by
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By:DEVANSHU JOSHI
Signing Date:18.09.2024
18:28
the N.I.A Special Court respectively. By the said impugned orders, the
applications of the Appellant seeking bail in all seven matters have been
rejected.
BACKGROUND:
3. The present appeals arise from a series of connected murders and
attempt to murders that took place during the latter half of 2010 in Ludhiana
and Jalandhar districts of Punjab. Following these incidents, the Punjab police
filed ten First Information Reports (hereinafter ‘FIRs’) against various
persons including the Appellant. The State, upon identifying these murders
and attempt to murders to be a part of a transnational conspiracy that intended
to destabilise the law and order situation in Punjab, transferred a batch of
connected FIRs to National Investigation Agency (hereinafter ‘N.I.A’).
4. The N.I.A then re-registered the transferred FIRs. Upon investigation,
charge sheets were filed in the respective cases before the N.I.A Special Court
and the trials are now in progress. Meanwhile, applications for bail were made
by the Appellant/Accused No.6. The same were rejected by the Special Court
in seven cases vide the orders dated 7th September 2022 and 25th April, 2024.
The details of the said cases and the relevant orders are set out in the table
below:
S. RC and FIR Provisions in RC Impugned order Appeal
No No. and Status of Trial
1. RC No. ● Sec. 120-B, 302, Order dated Crl.A.
27/2017/N.I.A 34. 379. 416 IPC, 25.04.2024 by 569/2024
/DLI ● Sec. 16, 17, 18, Chander Jit Singh,
18A, 18B, 20, 21 ASJ-3, Patiala
House Court, DelhiSignature Not Verified CRL.A.493/2023 & connected matters Page 4 of 62
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:18.09.2024
18:28
FIR No and 23 of UAPA, 8.in SC No.
06/2017 – PS 1967 N.I.A/07/2022.
Division 8 ● S.25 & 27 of the Prosecution
Ludhiana Arms Act, 1959 examination in
Punjab progress
2. RC No. ● Sec. 120-B, 302, Order dated Crl.A.
07/2019/N.I.A 34, 379, 416 of 25.04.2024 by 577/2024
/DLI IPC Chander Jit Singh,
● Sec. 16, 17, 18, ASJ-3, Patiala
FIR No 18A, 18B, 20, 21 House Court, Delhi
113/2017 PS and 23 of UAPA. in SC No.
Division - 04, ● Sec. 25 & 27 of the N.I.A/07/2022.
Jalandhar Arms Act, 1959 Prosecution
District examination in
Punjab progress
3. N.I.A RC ● Sec.120B/ 302/ 34/ Order dated Crl.A.
No.18/2017/N 379/ 416 IPC, 07.09.2022 by the 493/2023
.I.A/DLI R/W. Special Judge,
● Sec.16/ 17/ 18/ Parveen Singh ASJ-
FIR No. 18A/ 18B/ 20/ 21 3, Patiala House
442/2017 & 23 UAPA & Court. Prosecution
PS Salem ● Sec.25/27 Arms examination in
Tabri district Act progress
Ludhiana
Punjab
4. RC ● Sec.120B/302/34/3 Order dated Crl.A.
22/2017/N.I.A 79/416 IPC, R/W. 07.09.2022 by the 538/2023
/DLI ● Sec.16/ 17 /18/ Special Judge,
18A/ 18B/ 20/ 21 Parveen Singh ASJ-
FIR No & 23 Of UAPA & 3, Patiala House
218/2017 ● S.25/27 of the Court. Prosecution
PS Salem Arms Act examination in
Tabri district progress
Ludhiana
Punjab
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By:DEVANSHU JOSHI
Signing Date:18.09.2024
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5. RC- ● Sec.120B/302/34/3 Order dated Crl.A.
26/2017/N.I.A 79/416 IPC, R/w. 07.09.2022 by the 539/2023
/DLI. ● Sec.16/17 /18/18A/ Special Judge,
18B/20/21 & 23 Of Parveen Singh ASJ-
FIR No UAPA & 3, Patiala House
7/2016 ● Sec.25/27 of the Court. Prosecution
PS Division- Arms Act examination in
2, Ludhiana, progress
Punjab
6. RC- ● Sec.120B/302/34/3 Order dated Crl.A.
23/2017/N.I.A 79/416 IPC, R/w 07.09.2022 by the 540/2023
/DLI ● Sec.16/17 /18/18A/ Special Judge,
18B/20/21 & 23 Of Parveen Singh ASJ -
FIR No UAPA & 3, Patiala House
13/2017 ● Sec.25/27 of the Court. Prosecution
PS Maloud Arms Act examination in
District, progress
Khanna
Punjab
7. RC- ● Sec.120B/302/34/3 Order dated Crl.A.
25/2017/N.I.A 79/416 IPC, R/w. 07.09.2022 by the 541/2023
/DLI ● Sec.16/17 /18/18A/ Special Judge,
18B/20/21 & 23 of Parveen Singh ASJ-
FIR No UAPA & 3, Patiala House
119/2016 ● Sec.25/27 of the Court. Prosecution
PS City Arms Act examination in
Khanna progress
Punjab
5. Though these seven appeals arise from similar facts and a common
conspiracy, the five appeals that arise from the impugned orders dated 7th
September 2022 are filed with a delay of 158 days and two appeals that ariseSignature Not Verified CRL.A.493/2023 & connected matters Page 6 of 62
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:18.09.2024
18:28
from the impugned orders dated 25th April 2024 do not have any delay.
Therefore, the present batch of appeals are being considered in two categories:
(i) In five appeals, firstly on the question of condonation of delay;
and if required on merits,
(ii) In two appeals, on merits;
JUDGEMENT ON CONDONATION OF DELAY
6. In five appeals namely Crl.As.493/2023, 538/2023, 539/2023,
540/2023, 541/2023, a preliminary objection of the appeals being barred by
delay has been raised by the Respondent-N.I.A. Applications for condonation
of delay have been filed by the Appellant and replies have been filed by the
Respondent. Broadly, the facts relating to delay are as under:
7. Under Section 21(5) of the N.I.A Act of 2008, the limitation for filing
an appeal is 30 days. The same is, however, extendible for further 30 days if
the Court is satisfied that the Appellant had sufficient cause for not preferring
the appeal. The outer limit mentioned under Section 21(5) is 90 days from
the date of order.
8. The impugned orders in these five appeals, were passed on 7th
September, 2022. The appeals were filed on 9th December, 2022 (93 days
after the pronouncement of the impugned order. Defects were marked in the
appeals on 12th December, 2022. After taking back the appeals with defects,
the same were re-filed with defects only on 20th May 2023 in three appeals
(i.e., Crl.A.493/2023, 540/2023 and Crl.A.541/2023) and on 1st June 2023 in
two appeals (i.e., Crl.A.538/2023 and Crl.A.539/2023) which were returned.
Again refiling took place on subsequent dates and finally the appeals were
filed without defects on 3rd June 2023 in case of Crl.A.493/2023 and on 11th
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By:DEVANSHU JOSHI
Signing Date:18.09.2024
18:28
July, 2023 in case of four appeals namely, Crl.A.538/2023, 539/2023,
540/2023 and Crl.A.541/2023, and were subsequently registered.
APPELLANT’S SUBMISSIONS ON CONDONATION OF DELAY:
9. The case of the Appellant is that the appeals were filed within the
prescribed period of 90 days as the certified copy was applied for in
September, 2022 and was prepared for collection on 10th November, 2022
but collected by the Appellant on 14th November 2022. According to the
Appellant, he is entitled to the benefit of 64 days during which the certified
copy was yet to be issued. The appeals were filed on 9th December 2022.
However, after 12th December, 2022, the re-filing was done only in May and
June, 2023. The appeals were registered and listed in July 2023. The
Appellant relies upon various decisions to argue that the condonation of delay
in case of refiling cannot be equated with delay in filing and that condonation
of delay in refiling is within the discretion of the Court.
RESPONDENT’S SUBMISSIONS ON CONDONATION OF DELAY:
10. On behalf of the N.I.A, Mr. S. V. Raju, ld. ASG along with Ms. Shilpa
Singh has raised the preliminary objection to maintainability of the appeals in
view of Section 21 of the N.I.A Act. According to ld. ASG, the delay in filing
and re-filing cannot be distinguished in these appeals. After the initial filing
on 9th of December, when the matters were returned on defects for curing,
the next filing was only in May and June 2023, i.e., after a delay of more than
6 months. In such circumstances, the filing cannot be construed as a re-filing.
Thus, the filing of these appeals is beyond the period provided in the statute.
11. It was further submitted that the question as to whether Section 5 of
Limitation Act, 1963 can be read with section 21 of N.I.A Act, 2008 wasSignature Not Verified CRL.A.493/2023 & connected matters Page 8 of 62
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Signing Date:18.09.2024
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decided in the affirmative by the ld. Division Bench of this Court in Farhan
Sheikh v. State (National Investigation Agency)1, but the said decision has
been stayed by the Supreme Court in Crl.A. 1824/2019 – 1826/2019 vide order
dated 2nd December, 2019. Various other orders of the Hon’ble Supreme
Court are also relied upon to argue that the question whether power under
section 5 of the Limitation Act of 1963 can be exercised or not, being pending
adjudication in the Supreme Court, the delay would not be liable to be
condoned. Various other decisions of High Courts are also relied upon by the
N.I.A.ANALYSIS
12. The N.I.A Act is a Special Act, which provides for filing of appeals
under Section 21. The said provision reads as under:
“Section 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.
1
SCC OnLine DEL 9158.
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Signing Date:18.09.2024
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(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 days.”
13. The Court had called for reports from the Registry. A perusal of the
applications, the report of the Registry including the certified copies reveals
the following timeline of events:
DATES EVENTS
7th September 2022 Bail applications by the Appellant in N.I.A
RC No.18/2017, 22/2017, 23/2017,
25/2017, 26/2017 was rejected on the
grounds that twin conditions under
S.43(D)(5) are not met.
14th September 2022 Certified copy of the impugned orders were
applied for by the Appellant.
10th November 2022 Certified copy of orders were prepared for
collection.
14th November 2022 Certified copy of the orders were received
by the Appellant.
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By:DEVANSHU JOSHI
Signing Date:18.09.2024
18:28
9th December 2022 All five appeals i.e., Crl.A. 493/2023,
538/2023, 539/2023, 540/2023, 541/2023
were filed.
● 29 days from 10th November 2022.
● 93 days from the date of pronouncement
i.e., 7th September 2022.
At this stage, the appeals are within limitation.
12th December 2022 All the appeals are returned on defects.
After the appeals were returned under defects the following is the chronology
of re-filing:
Crl.A.493/2023
20th May 2023 Appeal in Crl.A.493/2023 is re-filed, and
returned again for defects.
2nd June 2023 Appeal in Crl.A.538/2023 is re-filed
without defects.
3rd June 2023 Registry takes the appeal on record.
Crl.A.538/2023 and Crl.A.539/2023
1st June 2023 Appeals in Crl.A.538/2023, 539/2023 are
re-filed and returned again for defects.
June-July 2023 Appeals are re-filed with defects and
Returned few times.
11th July 2023 Appeals filed without defects.
13th July 2023 Registry takes the appeal on record.
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By:DEVANSHU JOSHI
Signing Date:18.09.2024
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Crl.A.540/2023 and Crl.A.541/2023
20th May 2023 Appeals in 540/2023, 541/2023, re-filed, but
returned again for defects.
June-July 2023 Appeals are re-filed with defects and
Returned few times.
11th July 2023 Appeals filed without defects.
13th July 2023 Registry takes the appeal on record.
14. Under Section 21 of N.I.A Act, the outer limit for filing of the appeal
is 90 days from the date of the order. However, the settled position in law is
that the time consumed in issuance of the certified copy is always excluded
from calculating the period of limitation. Thus, in the present case, the
period between 14th September, 2022 and 10th November 2022 deserves
to be excluded. The initial filing of the appeals on 9th December, 2022
was thus within the prescribed 30 days period.
15. However, the issue would not end here. Once the defects were marked
in the appeals and were returned, the refiling took place only in the months of
May and June 2023. As per Rule 5 of Chapter 1(Judicial Business), Volume
V of the Delhi High Court (Original Side) Rules, 2021; if any appeal or
petition is returned under objections, the refiling has to take place within 7
days at the time and 30 days in aggregate. The said Rule reads as under:
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Signing Date:18.09.2024
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“5(1) The Deputy Registrar/Assistant Registrar, In-
charge of the Filing Counter, may specify the
objections (a copy of which will be kept for the
Court Record) and return for amendment and re-
filing within a time not exceeding 7 days at a time
and 30 days in the aggregate to be fixed by him,
any memorandum of appeal, for the reason
specified in Order XLI, Rule 3, Civil Procedure
Code”
16. In addition, Rule 5 (3) and the Explanation thereto also provides that if
an appeal is filed beyond the time allowed, it would be considered as fresh
filing. The said Rule reads as under:
“5(3) If the memorandum of appeal is filed beyond
the time allowed by the Deputy Registrar/Assistant
Registrar, in charge of the Filing Counter, under
sub-rule (1) it shall be considered as a fresh
institution.
Explanation : The period of seven days or thirty days
mentioned above shall commence from the date the
objections are put on the notice board.”
17. In the present case after the initial filing, clearly there has been a delay
beyond 30 days in refiling. Therefore as per the above mentioned Rule, the
filing of the appeals deserves to be treated as fresh filing.
18. Usually re-filing is condoned by the Courts without hesitation.
However, if it is beyond the prescribed period of 30 days the registry cannot
condone the delay and the Court condones the same under Limitation Act of
1963. But the Court is here dealing with a special statute prescribing a
mandatory outer period of 90 days under Section 21 of N.I.A Act of 2008. In
the said context, the question then is whether the delay in re-filing of an appeal
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Signing Date:18.09.2024
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under S.21 of N.I.A Act is condonable under section 5 of the Limitation Act
of 1963. The stand of the Appellant is that it is within the discretion of this
Court to condone the delay in refiling.
19. In Indian Statistical Institute v. Associated Builders & Ors2, the
Supreme Court observed that delay in refiling is to be treated on a different
plank from delay in filing. The observations of the Supreme Court are as
under.
“10. The High Court was in error in holding that
there was any delay in filing the objections for
setting aside the award. The time prescribed by the
Limitation Act for filing of the objections is one
month from the date of the service of the notice. It is
common ground that the objections were filed
within the period prescribed by the Limitation Act
though defectively. The delay, if any, was in
representation of the objection petition after
rectifying the defects. Section 5 of the Limitation
Act provides for extension of the prescribed period
of limitation if the Petitioner satisfies the Court
that he had sufficient cause for not preferring the
objections within that period. When there is no
delay in presenting the objection petition section 5
of the Limitation Act has no application and the
delay in representation is not subject to the
rigorous tests which are usually applied in
excusing the delay in a petition under section 5 of
the Limitation Act. The application filed before the
High Court for condonation of the delay in
preferring the objections and the order of the Court
declining to condone the delay are all due to
misunderstanding of the provisions of the Civil
Procedure Code. As we have already pointed out in
the return of the Registrar did not even specify the2
(1978) 1 SCC 483Signature Not Verified CRL.A.493/2023 & connected matters Page 14 of 62
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Signing Date:18.09.2024
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time within which the petition will have to be re-
presented.”
20. In S.R. Kulkarni v. Birla VXL Limited3, where there was a delay of
200 days in re-filing due to the casual approach of the advocate, the ld.
Division Bench of this Court observed that the delay in refiling can be
condoned on payment of costs, for doing justice. The observations of the
Court on refiling is as under:
“8. Notwithstanding which of the aforesaid Rules
are applicable, the question of condensation of delay
in refiling of an application has to be considered
from a different angle and viewpoint as compared to
consideration of condensation of delay in initial
filing. The delay in refiling is not subject to the
rigorous tests which are usually applied in excusing
the delay in a petition filed under Section 5 of the
Limitation Act (See Indian Statistical Institute Vs.
M/s. Associated Builders and others
MANU/SC/0014/197; AIR 1978 S C 335. In the
present case, the initial delay of 7 days in filing the
application for leave to defend stood condoned and
that has not been challenged by any of the parties. It
is no doubt true that the counsel for the Appellant
had not been very diligent after filing of application
for leave to defend on 19th August, 1995 as counsel
did not check whether the application was lying in
the Registry with any objection or not. Considering
however, the nature of the objections, it was a matter
of removal of the objections by the counsel and on
the facts of the present case, it is difficult in this case
to attribute any negligence to the party.”
3
(1998) SCC OnLine Del 1018
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Signing Date:18.09.2024
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21. In Delhi Development Authority v. Durga Construction4, while
dismissing the appeal under Section 34 of Arbitration and Reconciliation Act
with a re-filing delay of 166 days, again the observations of the Court are as
under:
“17. The cases of delay in re-filing are different
from cases of delay in filing inasmuch as, in such
cases the party has already evinced its intention to
take recourse to the remedies available in Courts
and has also taken steps in this regard. It cannot
be, thus, assumed that the party has given up his
rights to avail legal remedies. However, in certain
cases where the petitions or applications filed by a
party are so hopelessly inadequate and insufficient
or contain defects which are fundamental to the
institution of the proceedings, then in such cases the
filing done by the party would be considered non est
and of no consequence. In such cases, the party
cannot be given the benefit of the initial filing and
the date on which the defects are cured, would have
to be considered as the date of the initial filing. A
similar view in the context of Rules 1 & 2 of Chapter
IV of the Delhi High Court (Original Side) Rules,
1967 was expressed in Ashok Kumar Parmar v.
D.C. Sankhla: 1995 RLR 85, whereby a Single
Judge of this Court held
as under:-
“Looking to the language of the Rules framed
by Delhi High Court, it appears that the
emphasis is on the nature of defects found in the
plaint. If the defects are of such character as
would render a plaint, a non-plaint in the eye of
law, then the date of presentation would be the
date of re-filing after removal of defects. If the
defects are formal or ancillary in nature not
effecting the validity of the plaint, the date of
4
2013 SCC OnLine Del 4451Signature Not Verified CRL.A.493/2023 & connected matters Page 16 of 62
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presentation would be the date of original
presentation for the purpose of calculating the
limitation for filing the suit.”
A Division Bench of this Court upheld the aforesaid
view in D.C. Sankhla v. Ashok Kumar Parmar:
1995 (1) AD (Delhi) 753 and while dismissing the
appeal preferred against decision of the Single
Judge observed as under:-
“5. …… In fact, that is so elementary to admit of
any doubt. Rules 1 and 2 of (O.S.) Rules,1967,
extracted above, do not even remotely suggest
that the re-filing of the plaint after removal of
the defects as the effective date of the filing of
the plaint for purposes of limitation. The date
on which the plaint is presented, even with
defects, would, therefore, have to be the date for
the purpose of the limitation act.”
18. In several cases, the defects may only be
perfunctory and not affecting the substance of the
application. For example, an application may be
complete in all respects, however, certain
documents may not be clear and may require to be
retyped. It is possible that in such cases where the
initial filing is within the specified period of 120
days (3 months and 30 days) as specified in section
34(3) of the Act, however, the re-filing may be
beyond this period. We do not think that in such a
situation the Court lacks the jurisdiction to condone
the delay in re-filing. As stated earlier, section 34(3)
of the Act only prescribes limitation with regard to
filing of an application to challenge an award. In
the event that application is filed within the
prescribed period, section 34(3) of the Act would
have no further application. The question whether
the Court should, in a given circumstance,
exercise its discretion to condone the delay in re-
filing would depend on the facts of each case and
whether sufficient cause has been shown which
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prevent re-filing the petition/application within
time.
19. The Supreme Court in the case of Union of
India v. Popular Construction Company: (2001) 8
SCC 470 has held that the time limit prescribed
under section 34 of the Act to challenge an award is
not extendable by the Court under section 5 of the
Limitation Act, 1963 in view of the express
language of section 34(3) of the Act. However, this
decision would not be applicable in cases where
the application under section 34 of the Act has
been filed within the extended time prescribed, and
there is a delay in re-presentation of the
application after curing the defects that may have
been pointed out. This is so because section 5 of
the Limitation Act, 1963 would not be applicable
in such cases. Section 5 of the Limitation Act, 1963
provides for extension of the period of limitation in
certain cases where the Court is satisfied that the
Appellant/applicant had sufficient cause for not
preferring an appeal or making an application
within the specified period. In cases where the
application/appeal is filed in time, section 5 would
have no application. The Supreme Court in the case
of Indian Statistical Institute v. Associated
Builders: (1978) 1 SCC 483 considered the
applicability of section 5 of the Limitation Act,
1963 where the objection to an award under the
provisions of the Arbitration Act, 1940 was filed in
time but there was substantial delay in re-filing the
same. The High Court in that case held that there
was a delay in filing the objections for setting aside
the award and consequently, rejected the
application for condonation of delay. An appeal
against the decision of the High Court was allowed
and the Supreme Court rejected the contention
that there was any delay in filing objections for
setting aside the award. ……..
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XXX
20. It follows from the above that once an
application or an appeal has been filed within the
time prescribed, the question of condoning any
delay in re-filing would have to be considered by
the Court in the context of the explanation given
for such delay. In absence of any specific statute
that bars the jurisdiction of the Court in
considering the question of delay in refiling, it
cannot be accepted that the Courts are powerless
to entertain an application where the delay in its
re-filing crosses the time limit specified for filing
the application.
However, after holding that delay can be condoned, the Court in the said case
dismissed the appeal on merits.
22. In Farhan Sheikh v. State (National Investigation Agency)5, the ld.
Division Bench of this Court was considering an appeal where condonation
was sought of 314 days in filing and 44 days in refiling on the ground of the
convict’s poor mental health and inaccessibility of necessary paperwork. The
Court applied Section 5 of the Limitation Act of 1963 in the context of Section
21 of the N.I.A Act to hold the grounds to be a sufficient cause for delay.
wherein it was observed as under:
“91. Reference to Section 34 of the POTA, and its
comparison with Section 21(5) of the N.I.A Act, in
our view, is of no avail. We have to construe Section
21(5) on its own terms and in the context in which
the same is framed, keeping in view the nature of the
statutory right of appeal conferred on the
accused/convict. Thus, we reject the objection of
Mr. Sharma to the maintainability of the aforesaid
two applications under Section 5 of the limitation5
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Act. We hold that these applications are
maintainable and application of Section 5 of the
limitation Act is not excluded – either expressly or
by necessary implication, to the N.I.A Act.
92. Having held that the applications moved by the
Appellant to seek condonation of delay are
maintainable, we now proceed to consider the same
on merits. The Appellant seeks condonation of 314
days delay in filing the appeal. The Appellant seeks
further delay of 44 days in re-filing the appeal. The
appeal, itself, is directed against the order on
sentence. Pertinently, the Appellant was
incarcerated when he was sentenced by the Special
N.I.A Court. In that situation, he was heavily
dependent on his family and friends to file his
appeal. The Appellant has explained that when he
learnt of the sentence pronounced against him, he
went into depression for about 6 months.
Thereafter, he started exploring avenues available
to him. He states that he attempted to consult a
lawyer but he did not have the relevant documents.
He was confined in high security section of the jail
and, consequently, it was difficult for him to
arrange the documents. Then his uncle from
Maharashtra assured him of help. His uncle
contacted an NGO who, in turn, put him in touch
with Mr. Aditya Wadhwa, Advocate. He also
explains that, in the meantime, the special N.I.A
Court was shifted, which also delayed the
procurement of documents.
93. To explain the delay in re-filing, he states that
when he initially filed the appeal on 30.05.2018, he
did not have in his possession the complete papers
relating to the case. The same led to delay in re-
filing.
94. We ask ourselves, what is the advantage to be
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appeal? At the same time, what is the prejudice
suffered by the State on account of this delayed
filing of the appeal? The answer to both these
questions is “None”. The delay in filing the appeal
is not so grave that the respondents could claim that
it has destroyed its record. That is not even a plea
taken by the respondent. It is the Appellant, who
continues to suffer incarceration. Therefore, it is he,
who has suffered prejudice on account of his own
delay. The respondent has not suffered any
prejudice due to the said delay.
95. It is not difficult to imagine the difficulty that a
person, who is incarcerated in a high security
prison, faces in either communicating with the
outside world or in being able to arrange the
necessary documents so that his appeal could be
prepared and filed in time. He is wholly dependent
on his friends and family and if they take matters
lightly, it is he who suffers.”
23. The Jammu & Kashmir High Court, in N.I.A v. 3rd Additional
Sessions Judge District Court, Jammu6 also followed the decision in Farhan
Sheikh (supra) and observed as under:
“35. We have already held that the provisions of
second proviso to sub-section 5 of Section 21 of the
Act are directory in nature and, therefore, an
application for condonation of delay under
Section 5 of the Limitation Act is maintainable.”
24. The Bombay High Court in Faizal Hasamili Mirza @ Kasib v. State
of Maharashtra7, also observed that Section 21(5) proviso 2 cannot be held
to be mandatory. They The said observations read as under:
6
Crl.A(D) No.46/2022, decided on 12th December, 2022
7
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“47 Having regard to the discussions as stated
aforesaid, we are firmly of the opinion that the 2nd
proviso to sub-section (5) of Section 21 of the
N.I.A Act, will have to be read down, so as to read
‘shall’ as ‘may’, and as such directory, so as to vest
discretion in the Appellate Court, to condone
delay, beyond the 90 days period on sufficient
cause being shown. If the provision were to be
held mandatory, despite sufficient cause being
shown by accused, the doors of justice will be shut,
leading to travesty of justice, which cannot be
permitted by Courts of Law.
48. It is perplexing to note, the stand of the N.I.A.
As noted earlier, Mr. Patil, learned Spl.P.P
vehemently opposed the delay condonation
application, on the premise that the 2nd proviso to
sub-section (5) of Section 21 was mandatory and
that no appeal beyond 90 days can be entertained,
in view of the statutory bar. The contradiction in the
stand taken by the N.I.A, is apparent. It is pertinent
to note, that in the appeal filed by the N.I.A before
the Jammu & Kashmir and Ladakh High Court in
National Investigation Agency Through its Chief
Investigating Officer v. 3rd Additional Sessions
Judge, District Court Jammu (Supra), the N.I.A
had filed a delay condonation application, there
being a delay of 40 days. The N.I.A urged before the
said Court that the 2nd proviso to Section 21(5) of
the N.I.A Act was directory. The Jammu & Kashmir
and Ladakh High Court, relying on the Delhi High
Court judgment in Farhan Sheikh (Supra), held
that the 2nd proviso to Section 21(5) was directory
and as such, condoned the said delay of 40 days
(beyond the 90 days prescribed) caused in filing the
appeal by the N.I.A and consequently, allowed the
N.I.A’s appeal. Similarly, in State of Chhattisgarh
(Supra) before the Chhattisgarh High Court, N.I.A
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application seeking condonation of delay of 228
days. N.I.A, whilst seeking to condone the delay of
228 days, had urged that the provision in question
i.e. 2nd proviso to Section 21(5) of the N.I.A Act,
was directory. The Chhattisgarh High Court
accepted the submission of the N.I.A that 2nd
proviso to Section 21(5) of the N.I.A Act was
directory in nature and accordingly, condoned the
delay caused in filing the appeal against acquittal.
N.I.A being a Central Investigating Agency, is
expected to take one stand, either ways, for or
against. The stand cannot change to suit its needs.
We are unable to see any merit/reason, in the
contradictory stand taken by the N.I.A before
different High Courts. Infact, reliance placed by
Mr. Patil, learned Special P.P for N.I.A on
Hukumdev Narain Yadav (Supra), and the full
bench judgment of this Court in Anjana
Yashawantrao (Supra) are clearly misplaced,
inasmuch as, the said cases are clearly
distinguishable.
49 Accordingly, for the reasons set-out in detail
herein- above, we hold –
(i) that the Appellate Courts have the power to
condone delay beyond the 90 days period, despite
the language of the 2nd proviso to Section 21(5) of
the N.I.A Act and that this can be done by virtue
of Section 5 of the Limitation Act, 1963, the
applicability of which is not excluded under the
provisions of the N.I.A Act. Thus, an application
seeking to condone delay beyond 90 days in filing
an appeal against the judgment, sentence, order,
not being an interlocutory order, passed by a
Special Court is maintainable, on sufficient cause
being shown;
(ii) that the word ‘shall’ in the 2nd proviso to sub-
section (5) of Section 21, be read down, to read as
‘may’, and hence, directory in nature.”
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25. On behalf of the N.I.A, Mr. S. V. Raju, ld. ASG along with Ms. Singh
has raised the preliminary objection to maintainability of the appeals in view
of Section 21 of the N.I.A Act. They relied upon the judgment in Singh
Enterprises v. CCE8 to argue that under special statutes if the language clearly
bars the Appellant authority from entertaining appeals beyond a particular
period, the appeal cannot be filed and even delay in refiling cannot be
condoned. Reliance is placed upon para 8 of the said judgment.
“8. The Commissioner of Central Excise
(Appeals) as also the Tribunal being creatures of
statute are not vested with jurisdiction to condone
the delay beyond the permissible period provided
under the statute. The period up to which the
prayer for condonation can be accepted is
statutorily provided. It was submitted that the
logic of Section 5 of the Limitation Act, 1963 (in
short “the Limitation Act”) can be availed for
condonation of delay. The first proviso to Section
35 makes the position clear that the appeal has to
be preferred within three months from the date of
communication to him of the decision or order.
However, if the Commissioner is satisfied that the
Appellant was prevented by sufficient cause from
presenting the appeal within the aforesaid period
of 60 days, he can allow it to be presented within a
further period of 30 days. In other words, this
clearly shows that the appeal has to be filed within
60 days but in terms of the proviso further 30 days’
time can be granted by the appellate authority to
entertain the appeal. The proviso to sub-section (1)
of Section 35 makes the position crystal clear that
the appellate authority has no power to allow the
appeal to be presented beyond the period of 30
8
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days. The language used makes the position clear
that the legislature intended the appellate
authority to entertain the appeal by condoning
delay only up to 30 days after the expiry of 60 days
which is the normal period for preferring appeal.
Therefore, there is complete exclusion of Section
5 of the Limitation Act. The Commissioner and the
High Court were therefore justified in holding that
there was no power to condone the delay after the
expiry of 30 days’ period.”
26. In V. Nagarajan v. SKS Ispat and Power Ltd. & Ors.9, dismissing an
appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016, filed
with a substantial delay on the grounds delayed issuance of certified copy and
the pandemic, the Supreme Court observed as under:
“32…..However, in the absence of an application for
a certified copy, the appeal was barred by limitation
much prior to the suo motu direction of this Court,
even after factoring in a permissible fifteen days of
condonation under Section 61(2). The Court is not
empowered to condone delays beyond statutory
prescriptions in special statutes containing a
provision for limitation”
27. Similarly, in M.K Suri v. Directorate of Enforcement10 the Court was
considering the provisions of FERA where the outer limit of 90 days was
provided and observed as under:
“13. Under Section 52 of the FERA, it is clear that
the outer limit for filing an appeal is 90 days;
beyond the period of 90 days the Court has no
power to condone the delay. The Appellate Tribunal
on 26.3.2005, had rightly dismissed the appeal on
this ground by invoking Section 52 (2) of the FERA
9
(2022) 2 SCC 244
10
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holding that the delay of 118 days could not be
condoned; the outer limit being 90 days. The said
order calls for no interference.
14. In (2008) 3 SCC 70 Singh Enterprises v.
Commissioner of Central Excise Jamshedpur &
Ors. while considering the provisions of Section 35
of the Central Excise Act 1944 it held been held that
the said provision of law stipulates a period of 60
days for filing an appeal; under the proviso another
30 days can be added to this period; the delay in
filing the appeal can be condoned after the expiry
of the 60 days yet the period the delay could not be
condoned beyond 90 days. While considering the
provisions of the aforestated statute it had been
held that in this special statute there is a complete
exclusion of Section 5 of the Limitation Act.
15. In the instant case also the provisions of
Section 52(2) read with the provisions of the
FERA which is also a legislation dealing with
economic offences, clearly stipulates that any
person aggrieved by an order of the Adjudicating
Authority may appeal to the Appellate Board
within a period of 45 days; the Appellate Board
may entertain the appeal after the expiry of 45
days but not beyond 90 days. This is the outer limit
and a mandate. Application of Section 5 of the
Limitation Act is excluded.”
28. In Omaxe Buildhome Limited v. Union of India & Anr.11, dealing
with Section 68-O, of the Narcotic Drugs Psychotropic Substances Act of
1985, the Court held the right to appeal is a creature of statute and not a
substantive right thus abrogable by a special legislation. The relevant
paragraphs are as under:
11
2019 SCC OnLine Del 7344
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“7. At the outset, it will be relevant to refer to Sub-
Section (1) of Section 68-O of the NDPS Act which
reads as under: –
68-O. Appeals
(1) Any person aggrieved by an order of the
competent authority made under section 68F,
section 68-I, sub-section (1) of section 68K or
section 68L, may, within forty-five days from the
date on which the order is served on him, prefer an
appeal to the Appellate Tribunal:
Provided that the Appellate Tribunal may
entertain an appeal after the said period of forty-
five days, but not after sixty days, from the date
aforesaid if it is satisfied that the Appellant was
prevented by sufficient cause from filing the
appeal in time.”
8. The plain reading of the proviso to Sub-section
(1) of Section 68-O of the NDPS Act indicates that
the Appellate Tribunal has no jurisdiction to
entertain an appeal which is filed beyond a period
of sixty days from the date on which the order
passed by the Competent Authority is served on the
Appellant. An appeal under Sub-section (1) of
Section 68-O of the NDPS Act can be filed only
within a period of 45 days from the date on which
the order is served. However, the Appellate
Tribunal can entertain an appeal even beyond the
said period of 45 days if it is satisfied that the
Appellant was prevented by sufficient cause from
filing the said appeal. However, this power is not
available to entertain an appeal beyond a period of
60 days.
9. Mr. Mir, the learned counsel appearing for the
petitioner, has submitted that the right of appeal is
an inherent right and the same could not be taken
away on the grounds of delay. He submitted that
the question of filing an appeal within the
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prescribed period was a matter of procedure and
such procedural matters could not affect the
petitioner’s substantive right of appeal and the same
being an inherent right could not be taken away.
10. The aforesaid contentions are unmerited. First
of all, the contention that the petitioner has any
inherent right to file an appeal against the order
of the Competent Authority, is flawed. It is well
settled that an appeal is a creature of statute and
there is no inherent right of appeal.”
29. In Raj Kumar Shivhare v. Assistant Director, Directorate of
Enforcement & Anr.12, the Supreme Court reaffirmed that the right to appeal
is a creature of statute and thus can be subjected to conditions by the statute
itself. The relevant paragraphs are as under:
“29. By referring to the aforesaid schemes under
different statutes, this Court wants to underline that
the right of appeal, being always a creature of a
statute, its nature, ambit and width has to be
determined from the statute itself. When the
language of the statute regarding the nature of the
order from which right of appeal has been
conferred is clear, no statutory interpretation is
warranted either to widen or restrict the same. ”
30. Above all, the N.I.A has also relied upon the orders in the following
cases to argue that the entire issue is now pending before the Supreme Court.
a. State (National Investigation Agency) v. Farhan Sheikh – Crl.A.No
1824 – 1826/2019 order dated 2nd December 2019
“List the appeal in the first five matters, subject to
overnight part-heard matter, in the second week of
February, 2020 on a non-miscella.neous day.
12
(2010) 4 SCC 772
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In the meantime, the operation of the impugned
judgment shall remain stayed”
b. State of U.P. v. Sarfaraz SLP Criminal Dairy No 5217/2024
“3. There is a divergence of views between
different High Courts. While the High Courts of
Allahabad, Bombay, Jammu & Kashmir &
Laddakh and Delhi have held that the 90 day time
limit is directory, a contrary view has been taken
by the High Courts of Calcutta and Kerala.
4. Notice has been issued by this Court from the
judgment of the High Court of Delhi which held that
the 90 day period in Section 21(5) is directory.
…
6. Moreover, bearing in mind that notice has been
issued by this Court already in one case, we issue
notice and direct that the present Special Leave
Petition be tagged with SLP (C) D No 41439 of
2019. [State (National Investigation Agency) v.
Farhan Sheikh (presently Crl.A.No 1824 –
1826/2019)]”
c. LIST OF TAGGED MATTERS BEFORE SUPREME COURT
The following are the further list of matters tagged by the Supreme Court for
adjudication on the same question of law relating to condonation of delay
under Section 21 of the N.I.A Act.
i. State (National Investigation Agency) v. Farhan Sheikh – Crl.A.No
1824 – 1826/2019;
ii. Osman Shareef and Anr. v. Union of India, Petition to Special
Leave to Appeal Criminal No. 9840 of 2021;
iii. Sushila Devi v. Union of India, Petition to Special Leave to Appeal
Criminal 1742 of 2024;
iv. N.I.A v. Faizal Hasamali Mirza @Kasib SLP Criminal Dairy No
8582/2024;
v. State of U.P v. Sarfaraz Ali Jafri SLP Criminal Dairy No 5217/2024
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31. A perusal of the above decisions would show that there is a clear
divergence of opinions between various High Courts and the question as to
whether delay in filing as also delay in re-filing would be liable to be
condoned or not, is pending final adjudication in the Supreme Court. The
leading judgment in Farhan Sheikh(Supra) arising out of the decision of ld.
the Division Bench of this Court has been stayed by the Supreme Court.
32. In light of the above, this Court is of the opinion that, as per Section
21(5) of the N.I.A Act, read with the rule 5 of Delhi High Court Rules, though
the initial filing was within time, the re-filing of the five appeals in May and
June 2023 has to be construed as a fresh institution as the same is beyond the
30 days aggregate period of delay permissible under the Rules. Some of the
decisions above hold that discretion can be exercised under Section 5 of the
Limitation Act of 1963, by the Court for condoning delay in re-filing and
some decisions hold that Section 5 would not apply. Either way, in order to
exercise discretion to condone delay, it needs to be noted that the N.I.A Act
is a special statute which prescribes an outer limit of 90 days under Sec. 21.
Under such circumstances, this Court, is of the opinion that even delay in
refiling, which is beyond the 30 days permissible limit under Rule 5 of the
DHC Rules, would not be liable to be condoned without power being
exercised under Section 5 of the Limitation Act of 1963. The said question
whether power under Section 5 of the Limitation Act of 1963 can be exercised
for condoning delay under Section of the N.I.A Act, 2008, is pending before
the Supreme Court. Considering the period of delay in re-filing is more than
the aggregate period permitted under the Delhi High Court Rules, the
applications for condonation of delay are not liable to be allowed. The same
are accordingly dismissed. This would, however, be subject to decision,
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which may be rendered by the Supreme Court in Farhan Sheikh(supra) and
the connected matters.
33. The applications seeking condonation of delay being Crl.A 493/2023,
538/2023, 539/2023, 540/2023, 541/2023 are accordingly, dismissed.
Consequently, the appeals are also dismissed.
JUDGEMENT ON MERITS IN TWO APPEALS.
BRIEF FACTS IN Crl. A. 569/2024
34. This appeal arises from FIR No. 6/2017 which relates to the alleged
killing of one Mr. Amit Sharma by two unknown motorcyclists. The FIR was
registered on 15th January 2017 by PS Division Number 08 Ludhiana District,
Punjab under Section 302/34 Indian Penal Code, 1860 (hereinafter ‘IPC’)
read with Section 25, 27, of the Arms Act 1956.
35. The deceased (late.) Mr.Amit Sharma, was the president of Shri Hindu
Takhat, Ludhiana unit and an active member of the said organization and was
35 years of age. As per the N.I.A’s report, he was murdered by 2 persons, who
were on a motorcycle, by use of firearms between 8:30 pm and 8:45 pm on
14th, January, 2017 while he was in front of his house in Ludhiana, speaking
on his mobile phone.
36. The killing of the deceased was identified to be a part of a larger
transnational conspiracy involving a series of eight incidents intended to
destabilize the law and order situation in Punjab. Considering the gravity of
the offence this FIR was transferred from Punjab Police to the N.I.A on 10th
December, 2017 and was re-registered as RC.No. 27/2017/N.I.A/DLI. There
are a total of eighteen accused including the Appellant (i.e., A-6). The
Appellant was booked under Sections 120-B, 302, 34. 379 416 of IPC of 1860,
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Sections 16, 17, 18, 18A, 18B, 20, 21 and 23 of Unlawful Activities
(Prevention) Act of 1967 (hereinafter ‘the Act’) and Sections 25 & 27 of the
Arms Act of 1959.
BRIEF FACTS IN CRL.A.577/2024
37. This appeal arises from FIR No. 113/2017 which initially related to the
alleged attempted murder of one Mr. Jagdish Kumar Gagneja by two
unknown motorcyclists. who were on a motorcycle, by use of firearms around
8 pm on 6th August 2016. He was travelling with his wife in his ‘Swift’ car
and had stopped at the road crossing behind the Jyoti Chowk Market,
Jalandhar to attend nature’s call when he was shot. He was stated to be the
then Vice President of RSS for the State of Punjab and an active member of
the said organization.
38. The said FIR was registered by PS Division Number 04 District
Jalandhar, Punjab under Section 307, 34 IPC of 1860 read with 25, 27, 54,
and 59 of the Arms Act 1956.
39. The attempt to kill the deceased Mr. Jagdish Kumar Gagneja was
subsequently identified to be a part of a larger transnational conspiracy
involving a series of eight incidents intended to destabilize the law and order
situation in Punjab. Considering the gravity of the offence, this FIR was
transferred to Central Bureau of Investigation (hereinafter ‘CBI’) on 7th
September 2016 and was re-registered as RC-10(S)/2016/SCU.V/SC-
II/CBI/New Delhi. The victim succumbed to the injuries on 20th September
2016.
40. Subsequently, this FIR was again transferred to the N.I.A on 8th March,
2019 and was re-registered as RC Number 07/2019/N.I.A/DLI. There are a
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total of twenty persons who are accused in this case. The Appellant is one of
the accused. The Appellant was booked under Section 120-B of the IPC of
1860 and Sections 16 17, 18 of the Act.
COMMON FACTS AS PER THE N.I.A REPORTS
41. The actual shooters in both the incidents were allegedly Hardeep Singh
(1) and Ramandeep Singh (A-2) in both cases. The allegation is that they
carried out a series of targeted killings during the period 2016-2017 in
Ludhiana and Jalandhar Districts of Punjab. As per the reports of the N.I.A,
the killing of the deceased by the masked youths is established by independent
witnesses. On the basis of the investigation and the information received, A-
1- Hardeep Singh and A-2- Ramandeep Singh were both arrested on 21st
December 2017. In their interrogation, it is claimed that they gave details of
the eight incidents, in which they were involved.
42. According to the N.I.A, the eight incidents in which they were involved
were specifically for creating a law and order situation in Punjab. There was
no previous animosity between the deceased victims and the shooters. The
case of the N.I.A was that the accused persons are part of a conspiracy hatched
by the Khalistan Liberation Force (hereinafter ‘KLF’) of which the Appellant
is also a member.
43. As per the Reports one of the shooters A-1 – Hardeep Singh used to live
with his paternal uncle (Tayaji) and his wife in Italy. A-3 – Harminder Singh
@ Mintoo, one of the self-acclaimed leaders of Khalistan Liberation Force,
had stayed as a guest in their house in Italy and during his interaction with
Hardeep Singh, he started motivating him for committing violence in the
name of Khalistan. It was during his stay there that he received 3000 GBP
from the Appellant – Jagtar Singh Johal (A-6). It is claimed in the N.I.A’s
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report that the Appellant is a close confidant of A-14-Harmeet Singh @ PhD
and A-16-Gursharan Singh @ Gursharanveer and that the Appellant had
delivered the said 3000 GBP to A-3-Harminder Singh on behalf of A-16. It is
further alleged in the report that Appellant is a member of the KLF, who had
complete knowledge of the conspiracy. The remaining portions of the report
are not relevant for the present purposes.
SUBMISSIONS OF THE APPELLANT
44. The two main grounds urged on behalf of the Appellant are –
a. That the Appellant has a limited role to play and
b. Secondly that the Appellant has been incarcerated for a long period on
unsubstantiated allegations.
45. Mr. Paramjeet Singh, ld. Counsel for the Appellant submits that the
entire charge-sheet mentions the Appellant only in two paragraphs. The
relevant portions of the charge-sheet are set out below:
“17.27 In between his stay at Daljit Singh’s house,
Gurjinder Singh@ Shastri (A-15), Harminder Singh
@ Mintoo (A-5) and Hardeep Singh (A-1) took a tour
of France and Germany by road. When they were in
Paris, France, Harminder Singh @ Mintoo (A-5)
and Gurjinder Singh @ Shastri (A-6) went to Paris
airport and received Jagtar Singh Johal (A-6), who
had arrived from the U.K. Jagtar Singh Johal (A-6),
(a U.K. national) had been sent to France from the
U.K. by Gursharan Singh (A-16) (a U.K. national)
to deliver GBP 3000 to Harminder Singh@ Mintoo
(A-5). A part of this money (about GBP 300) was
given by Harrninder Singh@ Mintoo (A-5) to
Hardeep Singh (A-1) to motivate him to join the
KLF and recruit him for executing the conspiracy:
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17.28 It has been established that Jagtar Singh
Johal (A-6) is a close confidante of Harmeet
Singh@ PhD (A-14) and Gursharanbir Singh (A-
16). The statement of witnesses has established that
Jagtar Singh Johal (A-5) is a member of the KLF;
had complete knowledge of the conspiracy and had
actively participated in the conspiracy.”
46. He submits that certain statements of protected witnesses are claimed
to have been recorded by the N.I.A that the Appellant is a member of the KLF
and that he was well aware of and actively participated in the conspiracy. On
the contrary, the learned Counsel for the Appellant submits, even as per the
case of the prosecution was at best that the Appellant was merely a courier or
messenger and it was only A-16- Gurusharanbir Singh @ Gurusharan Singh,
who had sent the Appellant to deliver 3000 GBP to A-5-Harminder Singh @
Mintoo. A-5 who, thereafter, had given the money to A-1-Hardeep Singh to
motivate him to join the KLF.
47. It is submitted that a total of 172 witnesses have been cited by the
prosecution and only ten witnesses have been examined till date which shows
that the N.I.A is not serious about the prosecution of the Appellant and that
the only intention is to keep him in custody. The Appellant has been in
custody since 22nd December 2017 (as of 2nd September 2024 – about 6 years
and 8 months). Moreover, if there is any allegation that there is likelihood of
tampering of witnesses or influencing of witnesses, the said protected
witnesses could have been examined early. However, the N.I.A has chosen
not to do so. The recent decision of the Hon’ble Supreme Court in Sheikh
Javen Iqbal v. State of U.P13., has been relied on to emphasise the need for
13
2024 SCC Online SC 1755
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speedy trial. It was also submitted that, in this judgement the Court has
distinguished the earlier decision in Gurwinder Singh V. State of Punjab14,
and reiterated the importance of speedy trial.
48. According to the Appellant, all the allegations against him are based on
the statement of the (i) A-3-Dharminder Singh @ Guguni, (ii) A-5-Harminder
Singh @ Mintoo and (iii) two protected witnesses. It is his submission that
none of the statements of the protected witnesses have been provided to the
Appellant. He also pointed out that only the redacted statements of the
protected witness nos. P8 and P9 have been provided to the Court. He relies
upon the decision in National Investigation Agency v. Zahoor Ahmad Shah
Watali15 to argue that if the statements of the witnesses are not given to the
accused, the same cannot even be considered for the purposes of evidence.
49. He further submits that the primary accused A-1-Hardeep Singh’s
statement does not say he has received any money from the Appellant.
According to the Appellant, the Respondent’s case against the Appellant is
based merely on the statements of A-3-Dharminder Singh @ Guguni, A-5-
Harminder Singh @ Mintoo which implicate the Appellant in the conspiracy
and two protected witnesses which contain narration of alleged Extra Judicial
Confessions made by the Appellant to them, which shall not be admissible.
50. It is further submitted that, on the same facts (i.e., in RC.No 24/2017)
the Appellant has already been granted bail by the Punjab & Haryana High
Court in CRA-D 405/2020 vide the order dated 15th march 2023 and that SLP
(crl.) no. 6717/2022 which was filed against the said order stands dismissed
vide the order dated 8th August 2023.
14
(2024) 5 SCC 403
15
(2019) 5 SCC 1
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51. He finally submits in sum and substance that, considering
● the large number of witnesses remaining to be examined,
● the long period of incarceration
● the allegations being based merely on inadmissible, circumstantial
evidence and
● the fact that High Court of Punjab has released him on bail on a
similar case
the present appeals are liable to be allowed and the Appellant deserves to be
released on bail.
SUBMISSIONS OF THE N.I.A
52. On merits, the learned ASG S.V. Raju appearing on behalf on the
Respondent submits that the Appellant is an active member of KLF and has a
prominent role in the conspiracy. According to the N.I.A, the funds made
available by the Appellant were used for procurement of arms and weapons
by both shooters, A-1 & A-2. As per the charge sheet filed in RC.no
25/2017/N.I.A/DLI, the Appellant was the one of the first persons to be
arrested in 2017. According to the N.I.A, it was the statement of the Appellant
in FIR.No 193/2016 dated 7th November 2017, which led to the subsequent
arrest of both the shooters, A-1 and A-2. Thus, he is said to have played an
intrinsic role in the entire conspiracy. To this effect the Respondents handed
over –
a) Statements of A-5-Harminder Singh @ Mintoo and A-3- Dharminder
@ Gugni recorded under S.164 of Criminal Procedure Code.
b) Statements of two protected witnesses recorded under Section 161 of
Criminal Procedure Code.
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a. i) Statement of A.3-Harminder Singh @ Mintoo under Section 164
Cr.P.C. dated 22nd March 2018 in RC.No 26/2017/N.I.A/DLI
53. He has stated that from 2007-08, he was part of the KLF movement and
lived abroad from 2008 to 2014. He was deported from Thailand in 2014. He
stated that in June, 2013 he had gone to Italy and he met Diljeet Singh. In
Diljeet Singh’s house, he met A-1-Hardeep Singh. It is stated that A-1 and A-
3-Harminder Singh had travelled from Italy to France. There he met the
Appellant at the Paris airport and received 3000 GBPs. The said amount was
sent by A-16-Gursharan Singh, who was the friend of the Appellant. This is
the limited role ascribed by Harminder Singh to the Appellant.
a. ii) Statement of Dharminder @ Guguni under Section 164 Cr.P.C
dated 08th February 2018 .
54. He was the person who had provided weapons, which were used in the
killings. In his statement, though he admits to the fact of receiving funds from
London, he does not name the Appellant directly.
55. The statements of protected witnesses cited as proposed PW-49 and
PW-50 in the produced before us are recorded under Section 161 of Criminal
Procedure Code. These witnesses state that the present Appellant had made
certain claims regarding his involvement in the present conspiracy to each of
them separately. These Statements show that the Appellant was not merely a
courier boy but was an integral part of this conspiracy.
56. The Learned ASG submits that the offences against the Appellant are
serious in nature. Out of nine persons who have been shot at different points
in time, seven in fact have passed away and two are grievously injured. The
bail granted to the Appellant by the Punjab & Haryana High Court was in a
case where there was injury and not murder. The various persons who have
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been eliminated by the two shooters are in fact persons of high stature in
Punjab including political leaders. The premeditated conspiracy and the target
killings were intended to destabilise the law and order situation in Punjab.
Thus the matter is of a serious nature and poses a threat to the sovereignty of
India.
57. In addition, the N.I.A claims that even while the Appellant has
remained in jail, he has levelled certain threats to some witnesses and, thus,
his release could pose a threat to the witnesses. The witness statements
informing threats levelled and requesting for protection are also produced
before the Court. It was the N.I.A’s stand that the Appellant is one of the main
conspirators who is highly radicalized and has the potential to intimidate and
influence the witnesses in the ongoing investigation.
ANALYSIS & FINDINGS
58. Heard and perused the record. There are a total of eight cases in which
the Appellant has been named as an accused. Out of the eight cases, there have
been deaths in four cases and grievous injuries in three cases. There can be no
doubt that such killings and grievous injuries being inflicted, that too in the
form of targeted killings, ought to be dealt with strictly in accordance with
law. Active participation in anti-national activities, conspiracy to kill, that too
for organizations such as KLF i.e., Khalistan Liberation Force, would also
have to be dealt with stringently and action would be liable to be taken against
the persons, who are involved in such unlawful, illegal and anti-national
activities.
59. There are a total of sixteen accused in RC No.
27/2017/N.I.A/DLI(Crl.A.569/2024) and eighteen accused in RC No.
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7/2019/N.I.A/DLI (Crl.A.577/2024). The role of each of them is different.
Some are active members of the KLF. Some are providing active support and
some individuals have been on the sidelines. A1 and A2 are alleged to be the
actual shooters. The Accused as per the Final Reports in RC No.
27/2017/N.I.A/DLI(Crl.A.569/2024) and RC No. 7/2019/N.I.A/DLI
(Crl.A.577/2024) are as under
Accused in Accused in
Names RC No. RC No. Role Ascribed
27/2017 7/2019
Hardeep Singh @ A-1 A-1 Shooter 1
Shera @ PahalwanRamandeep Singh A-2 A-2 Shooter 2
@ Canadian @
BaggaDharminder Singh A-3 A-3 Weapon Supplier
@ GuguniAnil Kumar @ Kala A-4 A-4 Aided A-2 and A-1 in
receiving the pistol
Harminder Singh @ A-5 A-20 Leader of KLF
Mintoo Deceased DeceasedJagtar Singh Johal @ A-6 A-5 Financier
Jaggi @ JoharAmaninder Singh @ A-7 A-6 Aided A-1 in
Mindu receiving fundsManpreet Singh @ A-8 A-7 Aided A-1 in
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Ravipal Singh @ A-9 A-8 Aided in
Bhunda purchasing pistolsPahad Singh A-10 A-9 Forged Country made
Chargesheet ‘Kattas'(guns)
not filed
Parvez @ Farru A-11 A-10 Sold pistols to A-1
Chargesheet
not filed
Malook Tomar A-12 A-11 Sold pistols to A-1
Chargesheet
not filed
Taljeet Singh @ A-13 NA NA
Jimmy DischargedHarmeet Singh @ A-14 A-12 Leader of KLF
Happy @ PhD @
Doctor
Gurjinder Singh @ A-15 A-13 Leader of KLF
ShastriGursharanbir Singh A-16 A-14 Leader of KLF
@ Gurusharan
Singh @
Gursharanvir Singh
@ Jagdev Singh @
Pehalwan
Gurjant Singh A-17 A-15 Hawala Financier
Dhillon Chargesheet
not filed
Tarlok Singh @ A-18 NA NA
Laddi Discharged
Amit Kumar Arora NA A-16 NA
Chargesheet
not filed
Mani Kumar @ NA A-17 NA
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Bharti Sandhu NA A-18 NA
Chargesheet
not filed
Samar D’Souza NA A-19 NA
DischargedPRIMA FACIE EVIDENCE AGAINST APPELLANT
60. Insofar as the Appellant is concerned, the evidence (S.164 Statements
of A-3-Harminder Singh @Mintoo and A-3-Dharminder Singh @ Guguni)
which has come on record, at this stage, prima facie shows that he acted as a
carrier of 3000 pounds from A-16-Gursharan Singh to A-3-Harminder Singh
@ Mintoo in Paris, which thereafter, was passed to one of the shooters namely
A-1-Hardeep Singh for executing the conspiracy. Apart from this evidence
the remaining evidence, which is relied upon by N.I.A, is of certain protected
witnesses who claimed to have received threats. The evidence in respect
thereof is yet to be led by the N.I.A and the said witnesses are yet to be
examined by the Court. As per the Reply filed by N.I.A, it was from the
disclosure made by the Appellant that the conspiracy was unravelled and the
two shooters were subsequently arrested and at their instance the weapons and
vehicles used in killing were recovered.
TRIAL COURT OBSERVATIONS
61. In the impugned order, the Trial Court has given the following findings.
● The charges were framed on 15th October, 2022 under Sections
302 read with 120B and Sections 16,17,18, 18A & 20 of the Act.
● The Trial Court cites the judgment in National Investigation
Agency v. Zahoor Ahmad Shah Watali16 to record various
16
(2019) 5 SCC 1
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factors to be considered for grant of bail wherein framing of the
charge raises a strong suspicion.
● In view of the framing of the charges, the threshold of crossing
the conditions under Section 43D(5) of the Act are arduous. At
the time when the Punjab and Haryana High Court gave the
judgment, the charges had not been framed and the trial was yet
to commence, which has now commenced. In Gurwinder Singh
v. State of Punjab17, the Supreme Court has observed that the
mere delay in trial is not sufficient to grant bail.
● Before the Trial Court, no arguments on merits were addressed.
● In Gurwinder Singh (Supra), the Supreme Court holds that in
UAPA cases, bail cannot be taken as a rule. In addition, the
accused is a flight risk.
62. In the light of the arguments made and the record perused, it is relevant
to set out Section 43D of the Act. The said provision reads as under:
“[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) Section 167 of the Code shall apply in relation to a
case involving an offence punishable under this Act
subject to the modification that in sub-section (2),–
(a) the references to “fifteen days”, “ninety days” and
“sixty days”, wherever they occur, shall be construed as
references to “thirty days”, “ninety days” and “ninety
days” respectively; and17
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(b) after the proviso, the following provisos shall be
inserted, namely:–
“Provided further that if it is not possible to complete
the investigation within the said period of ninety days,
the Court may if it is satisfied with the report of the
Public Prosecutor indicating the progress of the
investigation and the specific reasons for the detention
of the accused beyond the said period of ninety days,
extend the said period up to one hundred and eighty
days:
Provided also that if the police officer making the
investigation under this Act, requests, for the purposes
of investigation, for police custody from judicial custody
of any person in judicial custody, he shall file an
affidavit stating the reasons for doing so and shall also
explain the delay, if any, for requesting such police
custody.
(3) Section 268 of the Code shall apply in relation to a
case involving an offence punishable under this Act
subject to the modification that–
(a) the reference in sub-section (1) thereof
(i) to “the State Government” shall be construed as a
reference to “the Central Government or the State
Government.”;
(ii) to “order of the State Government” shall be
construed as a reference to “order of the Central
Government or the State Government, as the case may
be”; and
(b) the reference in sub-section (2) thereof, to ‘the State
Government” shall be construed as a reference to “the
Central Government or the State Government, as the
case may be”.
(4) Nothing in section 438 of the Code shall apply in
relation to any case involving the arrest of any person
accused of having committed an offence punishable
under this Act.
(5) Notwithstanding anything contained in the Code,
no person accused of an offence punishable under
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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.
(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) Notwithstanding anything contained in sub-sections
(5) and (6), no bail shall be granted to a person accused
of an offence punishable under this Act, if he is not an
Indian citizen and has entered the country
unauthorisedly or illegally except in very exceptional
circumstances and for reasons to be recorded in
writing.]”
63. The Appellant has also been charged under the IPC as well for criminal
conspiracy. The legal position for bail under the Act is continuously
undergoing a change, depending upon the kind of offences, but the provision
itself requires that the accused shall not be released on bail if the allegations
are prima facie true.
64. Section 43D of the Act has been considered in various decisions of the
Supreme Court and it would be of relevance to discuss the same. In Zahoor
Ahmad Shah Watali (supra), the allegation against the accused was that he
acted as a conduit for transfer of funds received from various terrorist
organisations to support separatist elements in executing violent activities and
promoting the secession of Jammu and Kashmir from India. On the basis of
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the allegation, the accused in the said case was charged under various
provisions of the Act as also IPC. After having analysed the material on record
the Trial Court rejected the bail applications of the accused on the ground that
the offences alleged against the accused are prima facie made out. The said
order was reversed by the High Court of Delhi in Crl.A.768/2018, on
reconsidering the materials placed on record. Upon appeal by the N.I.A, the
Supreme Court while setting aside the order of the High Court the various
aspects that deserve consideration for deciding a bail application. The relevant
portion reads:
“21. Before the rival submissions, it is apposite to
state the settled legal position about matters to be
considered for deciding an application for bail, to
with:
(i) whether there is any prima facie or reasonable
ground to believe that the accused had committed
the offence,
(ii) the nature of gravity of the charge,
(iii) the severity of the punishment in event of
conviction,
(iv) the danger of accused absconding, or fleeing
if released on bail
(v) Character, behaviour, means, position and
standing of accused
(vi) likelihood of offence being repeated
(vii) reasonable apprehension of witness being
tampered with and
(Viii) danger of course of justice being tweeted by
grant of bail
…
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 evidence. The
elaborate examination or dissection of the
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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.”
65. In Gurwinder Singh (supra), an appeal was filed against the order
passed by the High Court of Punjab and Haryana, which upheld the Special
Judge’s decision denying regular bail to Gurwinder Singh and co-accused in
an N.I.A case. Charges were framed against the accused under IPC, UAPA,
and Arms Act. The decision was rendered in a case which arose out of an
incident where two individuals were apprehended for hanging ‘Khalistan’
banners. The investigation revealed a terrorist module linked to the banned
organization ‘Sikhs for Justice’, with the accused allegedly receiving funds
through illegal means for separatist activities and attempts to procure
weapons.
66. The Trial Court in Gurwinder Singh (supra) dismissed the bail
application based on reasonable grounds to believe that the accusations
against the Appellant were true. Subsequent investigation reports, including a
4th supplementary chargesheet, and disclosure statements from other co-
accused further implicated the Appellant in the conspiracy. The High Court,
considering the seriousness of the offences and considering that the protected
witnesses were to be examined also rejected the bail plea.
67. The Supreme Court, affirming the High Court’s decision, also rejected
the bail application due to several reasons. Firstly, despite the Appellant’s
counsel arguing that the Appellant’s mobile phone had not been scrutinized,
call detail records showed consistent communication between the Appellant
and co-accused Bikramjit Singh (Accused No.3), and secondly, the
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Appellant’s and co-accused’s disclosure statements corroborated each other,
indicating their trip to Srinagar to procure weapons for terrorist activities,
even though the Appellant claimed ignorance of the purpose of the trip. The
review petition18 sought against the judgement in Gurwinder Singh(supra)
has also been dismissed by the court.
68. In Gurwinder Singh (supra), the Supreme Court has discussed the
scope of Section 43-D (5) of the Act, and observed that, unlike in conventional
bail matters, where bail is a rule, and jail is an exception, under UAPA, the
intention is to make the ‘bail an exception and jail a rule’. The Supreme
Court provided clear guidelines as to the manner in which grant of bail under
Section 43-D(5) of the Act is to be considered. The relevant portion of the
said decision is extracted below:
“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
18
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‘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’. In fact, the
Supreme Court in Zahoor Ahmad Watali has
noticed this difference, where it said:
“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.”
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 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.
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21. 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’)?
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
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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’.”
69. Paragraph 21 of the judgment as extracted above, prescribes the ‘twin-
prong’ test, which was the basis applied by the Trial Court in the rejecting
grant of bail in the present case. Under this test, the first consideration is
whether the reasons for rejecting bail are sufficient, and whether the test for
rejection was satisfied. Thereafter, as part of the second prong, the Court is
required to apply the ‘tripod test’, which is the usual test for grant or non-
grant of bail i.e., ‘flight risk, influencing of witnesses and tampering of
evidence’. The Court also analysed Zahoor Ahmad Shah Watali (supra) and
crystallized eight propositions as laid down in Zahoor Ahmad Shah Watali
(supra) as under:
“Test for Rejection of Bail: Guidelines as laid down by
Supreme Court in Watali’s Case
23. In the previous section, based on a textual reading,
we have discussed the broad inquiry which Courts
seized of bail applications under Section 43D(5) UAP
Act r/w Section 439 CrPC must indulge in. Setting out
the framework of the law seems rather easy, yet the
application of it, presents its own complexities. For
greater clarity in the application of the test set out
above, it would be helpful to seek guidance from binding
precedents. In this regard, we need to look no further
than Watali’s case which has laid down elaborate
guidelines on the approach that Courts must partake
in, in their application of the bail limitations under the
UAP Act. On a perusal of paragraphs 23 to 29 and 32,
the following 8-point propositions emerge and they are
summarised as follows:
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● Meaning of ‘Prima facie true’ [para 23]: On
the face of it, the materials must show the
complicity of the accused in commission of the
offence. The materials/evidence must be good
and sufficient to establish a given fact or chain
of facts constituting the stated offence, unless
rebutted or contradicted by other evidence.
● Degree of Satisfaction at Pre-Chargesheet,
Post Chargesheet and Post-Charges
Compared [para 23]: 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.
● Reasoning, necessary but no detailed
evaluation of evidence [para 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.
● Record a finding on broad probabilities, not
based on proof beyond doubt [para 24]: “The
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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.”
● Duration of the limitation under Section
43D(5) [para 26]: 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.
● Material on record must be analysed as a
‘whole’; no piecemeal analysis [para 27]: 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.
● Contents of documents to be presumed as
true [para 27]: The Court must look at the
contents of the document and take such
document into account as it is.
● Admissibility of documents relied upon by
Prosecution cannot be questioned [para 27].
The materials/evidence collected by the
investigation agency in support of the
accusation against the accused in the first
information report must prevail until
contradicted and overcome or disproved by
other evidence…….In any case, the question of
discarding the document at this stage, on the
ground of being inadmissible in evidence, is not
permissible.”
70. The Appellant has relied upon the recent decision of the Supreme Court
in Sheikh Javed Iqbal (Supra) wherein, the Supreme Court focused on the
issue of speedy trial even in cases under the UAPA. This case involved
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circulation of fake currency, and the accused had been in custody for more
than five years. The Supreme Court emphasised that ‘speedy trial’ is part of
the fundamental right of any accused. If the trial continues indefinitely, bail
ought to be granted, even in a case under the Act. The relevant extract from
the judgment is set out below:
“21. It is true that the Appellant is facing charges under
Section 489B IPC and under Section 16 of the UAP Act
which carries a maximum sentence of life imprisonment,
if convicted. On the other hand, the maximum sentence
under Section 489C IPC is 7 years. But as noticed
above, the trial is proceeding at a snail’s pace. As per
the impugned order, only two witnesses have been
examined. Thus, it is evident that the trial would not be
concluded in the near future.
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. ”
71. In Sheikh Javed Iqbal (supra), the Supreme Court granted bail and
distinguished Gurwinder Singh (supra) on the ground that the trial was
underway in the latter case, and 22 witnesses had already been examined.
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72. This Court had the occasion to recently consider Section 43D(5) of Act
recently in Abdul Wahid v. National Investigation Agency19 case as under:
“21. The UAPA is a special Act, which has
provisions that lay down standards to be adopted for
grant of bail. Section 43-D(5) of the UAPA reads as
under:
“(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.”
22. A perusal of the above provision shows that
the threshold for granting bail under Section 43-D(5)
of UAPA is quite high; the accused person shall not
be released on bail if the Court is of the opinion that
there are grounds to believe that the allegations
against the accused are prima facie true.”
73. Recently In Javed Gulam Nabi Shaikh v. State of Maharashtra and
Anr20, the Supreme Court observed that the fundamental right to speedy trial
cannot be denied solely based on the ground that the crime is serious. The
observations of the Supreme Court are as under:
19
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20
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“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 not 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.”
74. Recently, in Manish Sisodia v. Directorate of Enforcement21, the
Supreme Court observed as under:
“53. The Court further observed that, over a period of
time, the trial Courts and the High Courts have
forgotten a very well-settled principle of law that bail is
not to be withheld as a punishment. From our
experience, we can say that it appears that the trial
Courts and the High Courts attempt to play safe in
matters of grant of bail. The principle that bail is a rule
and refusal is an exception is, at times, followed in
breach. On account of non-grant of bail even in
straight forward open and shut cases, this Court is
flooded with huge number of bail petitions thereby
adding to the huge pendency. It is high time that the
trial Courts and the High Courts should recognize the
principle that “bail is rule and jail is exception”.
75. In Manish Sisodia (supra), the Court observed that there are 493
witnesses and over lakhs pages of digitized documents on the unique facts of
the said case. Since there was no flight risk, the Court released the Appellant
on bail. The observations of the Court are set out below:
“56. In the present case, the Appellant is having deep
roots in the society. There is no possibility of him
21
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fleeing away from the country and not being available
for facing the trial. In any case, conditions can be
imposed to address the concern of the State.”
APPLICATION OF THE ABOVE DECISIONS TO THE FACTS
76. Cases involving serious crimes could be of various categories, such as
offences relating to laundering of money, offences related to counterfeit
currency, terrorist acts, etc. Acts of Terrorism and association with banned
organisations which have international networks as also acts against the
nation have to be considered as a distinct and more serious category of
offences. All offences covered under the UAPA cannot be treated with the
same brush. Even for the purpose of grant of bail, such offences are not to be
examined on the basis of mere facts of one particular FIR but on a larger
canvas in the overall scheme of the multiple FIRs, if existing, against a
particular accused. The damage in terms of loss of life as also the intent behind
such attacks i.e., to destabilise the law and order situation as well as to strike
terror in the minds of people in or outside India, has to be considered for the
purposes of granting bail. Terrorist activities, which have trans-national links,
would also fall in a more serious and grave category of cases. Accused, who
are involved in such activities, could be working overtly and covertly. The
fact that they could be linked through dark networks which are easily not
traceable needs to be borne in mind. Investigating agencies face enormous
challenges in unearthing evidence in such cases. While speedy trial is
necessary as a Constitutional prescription, in cases involving anti-national
activities and that too terrorism at an international scale, long incarceration in
itself ought not to lead to enlargement on bail when facts show involvement
in such activities. In the case of persons associated with terrorist or unlawful
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organizations having their activities spanning across countries, the
consideration for grant of bail in such serious offences ought to be strictly
dealt with, as prescribed in the statute(UAPA), on the benchmarks contained
in Section 43D(5) of the Act.
77. In fact, the Supreme Court in State of NCT Delhi v. Rajkumar22 has
distinguished cases involving terrorism and has held that bail in such cases
ought to be taken in a much more serious manner. The observations of the
Supreme Court are set out herein below:
“13. One more aspect to be considered is the nature of
offence which involved terrorist activities having not
only Pan India impact but also impact on other enemy
States. The matter should not have been taken so
lightly.”
Similarly, the Supreme Court in Gurwinder Singh (Supra) observed that
cases of this nature under the Act are serious cases, and in such cases, the bail
cannot be treated as a rule.
78. Without going too much into the merits, the records of these cases
reveal that as per the evidence unearthed, the Appellant/accused is stated to
have handed over some money to a third person, which reached the ultimate
accused A-1, who is the alleged shooter in all these cases. The said handing
over of money was not in India but in Paris. The evidence, prima facie, shows
that various accused involved in these cases, were from different countries
namely Italy, France and UK. Some of the accused had links in other
countries as well including Canada, India and Thailand. The Appellant
himself is a British passport holder and was residing in Scotland. He is said
22
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to have travelled from United Kingdom to Paris to hand over money which
ultimately was meant for the shooter. There appears to be evidence to the
effect that he had links with the other accused even in the past. The Appellant,
at this stage, cannot be considered to be a by-stander, who merely acted as an
innocent carrier or messenger. He was clearly aware of various persons
involved in the conspiracy. One of the accused i.e., Gurusharan Singh A-16,
in fact, admits that the Appellant was his friend (dost). As per the statements
of the protected witnesses, the Appellant, appears to be having complete
knowledge of the various incidents that took place and as per N.I.A it was at
his instance that the actual shooters were being arrested. This is clear from a
perusal of the reply of the N.I.A where it is pleaded as under:
“Para wise reply of the bail application –
…
(ii) … The Appellant was the first to be arrested on
04.11.2017. It was the Appellant who bared the entire
conspiracy and it was his statement in which led to the
subsequent arrest of the two shooters namely Hardeep
Singh @ Shera (A-1) and Ramandeep Singh (A-2) who
carried out the said killings and, on their instance,
weapons of offences, vehicles used in killings were
recovered.”
79. From the record, at this stage, there are reasonable grounds to believe
that the Appellant was not an innocent person, but was prima facie associated
with the KLF. He had knowledge of the KLF and its activities and the charges
have, in fact, been framed against him under Section 302 read with 120B of
IPC and Sections 16, 17, 18, 18A and 20 of the Act. The framing of charges
shows that the Petitioner has a higher threshold to cross. In Gurwinder Singh
(Supra) the framing of charges is held to create a strong
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suspicion/presumptive opinion as to the existence of the factual ingredients
constituting the offences alleged against the accused. The observations of the
Supreme Court in Gurwinder Singh (Supra) are set out herein below:
“Degree of Satisfaction at Pre-Chargesheet, Post
Chargesheet and Post- Charges – Compared [para 23]:
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.”
At this stage, there are grounds to believe that the allegations against the
Appellant are prima facie true. At the time when the Punjab and Haryana High
Court had granted interim bail to the Appellant i.e., 15th March 2022, which
was not interfered with by the Supreme Court, the charges were not yet
framed. The charges were framed in RC.No.25/2017 on 3rd August 2022 and
in RC.No.27/2017 on 15th October 2022 respectively. As held in Gurwinder
Singh (supra) the framing of charges changes the considerations of bail in
such cases, as a very strong suspicion exists.
80. The Appellant has not argued in detail on merits before the Trial Court.
However, before this Court, some arguments on merits were placed.
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Considering the nature of the provision i.e., Section 43D(5) of Act, the
evidence, as also the witness statements which have been placed on record the
Court is of the opinion, that, there is a high possibility of the Appellant, upon
being released, extending threats to witnesses. The possibility of the
Appellant again participating in activities of the KLF cannot be ruled out. In
respect of persons involved with such organisations, even a small role played
by a particular individual can have a major impact and can cause loss of
human life and threaten the safety and security of the public. The Appellant,
who has travelled extensively and holds a British passport, may also pose a
flight risk, as he appears well connected within the KLF, having an
international network. For the above said reasons it is clear that the Appellant
fails even the Tripod test and thus is not eligible to be released on bail.
CONCLUSIONS
81. In Crl.A.No 493/2023, 538/2023, 539/2023, 540/2023, 541/2023,
though the initial filing is within the period envisioned under Section 21 of
the N.I.A Act 2008; reading Section 21(5) of the N.I.A Act, along with Rule
5 of Delhi High Court Rules suggests the re-filing delay of 158 days ought to
be considered as a fresh filing. At this stage, as the issue relating to whether
power of condonation under Section 5 of the Limitation Act can be exercised
in the context of Section 21 of N.I.A Act, is currently pending adjudication
before the Supreme Court in Crl.A. 1824 – 1826/2019 [State (National
Investigation Agency) v. Farhan Sheikh] and other tagged appeals, the
applications seeking condonation of delay are dismissed. Consequently
appeals i.e., Crl.A.No 493/2023, 538/2023, 539/2023, 540/2023, 541/2023 are
also dismissed. All pending applications i.e., CRL.M.A.16870/2023,
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CRL.M.A. 17982/2023, CRL.M.A. 17983/2023, CRL.M.A. 17984/2023,
CRL.M.A. 17985/2023 are also accordingly disposed of.
82. In Crl.A. 569/2024 and 577/2024, on merits, for the reasons recorded
above, the Court is not inclined to grant bail to the Appellant. The impugned
order does not warrant any interference. Thus, the said appeals are
accordingly dismissed.
83. Needless to add that the Trial Court ought to take urgent steps to
expedite the trial. The N.I.A is also directed to lead the evidence of its
witnesses including the protected witnesses on early date so as to ensure that
the trial proceeds in a speedier manner.
84. Needless to state that, nothing mentioned hereinabove, is an opinion on
the merits of the case and any observations made are only for the purpose of
the present appeal/bail application.
85. Copy of this judgment be sent to the learned Trial Court for necessary
information and compliance.
86. Copy of this judgment be sent to the concerned Jail Superintendent.
87. Judgment be uploaded on the website of this Court forthwith.
PRATHIBA M. SINGH
JUDGE
AMIT SHARMA
JUDGE
SEPTEMBER 18, 2024/dk/Arvind
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