Jharkhand High Court
Sunil Tudu vs Union Of India (Through Nia) on 13 January, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1293 of 2024
---------
Sunil Tudu, aged about 27 years, son of Sukhlal Manjhi,
resident of -Hesakocha, P.O. + P.S.- Chowka, Dist.-Seraikela,
Kharsawan, at present R/o Sosodih, P.O. + P.S. Chowka,
District-Seraikela, Kharsawan.
… … Appellant
Versus
Union of India (Through NIA) … … Respondent
———
CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON’BLE MR. JUSTICE NAVNEET KUMAR
———-
For the Appellant : Mr. Avishek Prasad, Advocate
For the Respondent : Mr. Pankaj Kumar, P.P.
———–
th
05/Dated: 13 January, 2025
I.A. No.10990 of 2024
1. The instant interlocutory application has been preferred under
Section 21(5) of the N.I.A. Act for condoning the delay of 09 days
in preferring the instant appeal.
2. Heard learned counsel for the parties.
3. Considering the reason assigned in the interlocutory
application and taking into consideration the purport of Section
21(5) of the National Investigation Agency Act, 2008, the delay of
09 days in preferring the appeal is hereby condoned.
4. Accordingly, I.A. No.10990 of 2024 stands allowed.
Cr. Appeal (DB) No. 1293 of 2024
1. The instant appeal filed under Section 21(4) of the National
Investigation Agency Act, 2008, is directed against the order
dated 26.07.2024 passed by the learned Additional Judicial
Commissioner-XVI-cum-Spl. Judge, NIA, Ranchi in Misc.
1
Criminal Application No. 1947 of 2024 (Special NIA Case
No.04 of 2020 RC 39/2020/NIA/DLI), by which, the prayer for
bail of the appellant has been rejected, in connection with
Tiruldih P.S. Case No.16 of 2019 registered under Sections
147/148/149/379/302/353/323/324 and 435 of IPC, Section 27
of Arms Act, Section 17 of CLA Act and Sections 10 & 13 of
UA(P) Act.
Factual Matrix
2. The brief facts of the prosecution case leading to this Criminal
Appeal is that one FIR was registered on the basis of a self-
statement of Sub Inspector-Dayanand Ram of Tiruldih P.S., in
which, it was stated that on 14.06.2019, several police
personnel were on a patrolling duty and had gone to the
weekly market at Kuru, for which a station diary entry was
made. It has been alleged that at about 5.45 P.M, the driver of
the police vehicle namely Sukhlal Kudada had informed the
Munshi Bobby Jha through Mobile that about one hour back,
the miscreants have murdered the police personnel by
assaulting them with ‘bhujali’ and had also looted arms and
ammunitions. This information was entered in the station diary
and it was also informed to the higher officials. After sometime,
the police force had gone to the place of occurrence and found
the dead body of several police personnel at the place of
occurrence.
3. Based on the aforesaid allegations, Tiruldih P.S. Case No. 16
of 2019 was instituted for the offences punishable under
2
sections 147, 148, 149, 379, 302, 353, 323, 324, 326 and 435
of the Indian Penal Code, Section 27 of the Arms Act, Section
17 of the Criminal Law Amendment Act and Section 10/13 of
the Unlawful Activities (Prevention) Act, 1967.
4. The Central Government through Ministry of Home Affairs in
exercise of the powers conferred under section 6 (5) of the NIA
Act, 2008 had directed the NIA to take over investigation of
Tiruldih P.S. Case No. 16 of 2019. Consequently, the case was
re-registered as R.C.- 39/2020/NIA/DLI corresponding to
Special NIA Case No. 4/2020.
5. After investigation, 2nd supplementary chargesheet has been
submitted against the present appellant who was arrayed as
an Accused no.1 (A-1) and the charge under section 120
B,121,121A, 147 / 148 / 149 / 379 / 302 / 353 / 323 / 324,396
and 435 of IPC, Section 27 of Arms Act, Section 17 of CLA Act
and under Section 10,13 ,16,18,20,38 and 39 of UAP Act
1967.
6. Consequently, the above-named appellant had preferred the
regular bail application vide Cr. Misc. Application No. 1947 of
2024 before the NIA Special Court, Ranchi for regular bail but
the same has been rejected vide order dated 26.07.2024
against which the present appeal has been filed.
Submission of the learned counsel for the appellant
3
7. Learned counsel for the appellant has assailed the impugned
order by taking the following grounds:-
(i) It has been submitted that it is a case where the prayer for
regular bail of the appellant has been rejected solely on the basis
of the testimony of one eye witness, save and except, as per the
learned counsel for the appellant, no incriminating material has
come against the appellant.
(ii) It has further been submitted there is no direct culpability
shown to be there if the entire material which has been collected
in course of investigation will be taken into consideration.
(iii) Petitioner was arrested and forwarded in this case by Tiruldih
police on 19/07/2019 and since then he is in custody.
(iv) It has further been submitted that the petitioner is in custody
for more than five years. Till date i.e. on 24.07.2024 prosecution
has examined only fifteen witnesses out of 138 charge-sheeted
witnesses. Due to non-completion of prosecution evidence liberty
of petitioner has been curtailed which is violation of fundamental
rights of a citizen.
(v) As per the judgment passed by the Hon’ble Apex Court in the
case of Union of India Vs. K.A. Najeeb reported in (2021) 3
SCC 713 the personal liberty of the individual has paramount
importance, hence, taking into consideration the period of
custody, it is a fit case where the appellant deserves to be
released from judicial custody.
4
8. Learned counsel for the appellant, based upon the aforesaid
ground, has submitted that it is a fit case to show interference
with the impugned order.
Submission of the learned counsel for the NIA/respondent:
9. While on the other hand Mr. Amit Kumar Das, learned
counsel for the respondent-Union of India has taken the following
grounds in defending the order passed by the learned court while
rejecting the prayer for regular bail:-
(i) It is a case where the culpability of the appellant has
come on the basis of the statement of eye witness who has
not only taken the name of the present appellant but also
identified him in the TIP.
(ii) The other materials are also there said to be connected,
i.e., convening of the meeting in which his active participation
has come, having been found on the basis of CDR, one day
before the commission of crime while the meeting was
conducted and thereafter, the occurrence has been
committed resulting into killing of five police personnel.
(iii) Learned counsel further submitted that during
investigation protected witnesses namely J and F have
identified photo of the accused persons during photo
identification parade and categorically stated that the
appellant is supporter of CPI Maoist and he used to provide
logistic support to the accused persons and his cadre.
Protected witnesses E and F have also stated that the
5
appellant/accused was present during conspiracy meeting
organized by the top Maoist commander prior to the
commission of the instant crime and he was party to the
attacking team of the Kukruhaat incident.
(iv) Further, Petitioner was also identified by sole surviving
constable driver Sukhlal Kudada who was eye witness of the
instant crime who identified the petitioner during TIP carried
out in presence of learned Judicial Magistrate on 7.1.2020.
therefore, appellant’s prayer for bail is fit to be dismissed u/s
43D (5) of the UA (P) Act as prima facie there is enough
materials available against the petitioner.
(V) It has further been submitted that the ratio of judgment
relied upon by the learned counsel for the appellant as
rendered by the Hon’ble Apex Court in the case of Union of
India Vs. K.A. Najeeb (Supra), is not applicable in the instant
case, reason being that in the aforesaid case, nature and
background of the offence was different.
10. Mr. Das, learned counsel for the respondent-NIA based
upon the aforesaid ground has submitted that since the nature of
allegation leveled against the appellant is very grave and bail of
identically placed co-accused persons namely Alamgir Ansari;
Tabarak Ansari @ Maulana; Soyna Singh Sardar and Naresh
Lohar @ Ramu Lohar @ Nam Naresh Lohar @ Ram Naresh
Lohar @ Nam Naresh Lohar have also been dealt with and
rejected and in support of his argument, the copy of the orders
6
passed by the co-ordinate Bench of this Court have been placed
before this Court.
11. Learned counsel for the NIA, based upon the aforesaid
grounds, has submitted that it is not a fit case to show
interference with the impugned order.
Analysis
12. We have heard the learned counsel for the parties and
gone through the averment made in the present memo of
appeal, the finding recorded by the learned court in the
impugned order, as also, the averment made in the case diary
along with the extract of the charge-sheet which has been
appended thereto.
13. This Court, before proceeding to examine as to whether
the appellant has been able to make out a prima facie case for
enlarging him on bail, deems it fit and proper to discuss some
settled proposition of law and the relevant provisions of Unlawful
Activities (Prevention) Act, 1967 (hereinafter referred to as Act,
1967).
14. The main objective of the Act 1967 is to make powers
available for dealing with activities directed against the integrity
and sovereignty of India. As per Preamble, Act 1967 has been
enacted to provide for the more effective prevention of certain
unlawful activities of individuals and associations and dealing
with terrorist activities and for matters connected therewith.
Therefore, the aim and object of enactment of UAPA is also to
7
provide for more effective prevention of certain unlawful
activities.
15. To achieve the said object and purpose of effective
prevention of certain unlawful activities the Parliament in its
wisdom has provided that where an association is declared
unlawful by a notification issued under Section 3, a person, who
is and continues to be a member of such association shall be
punishable with imprisonment for a term which may extend to 2
years, and shall also be liable to fine.
16. Clause (m) of Section 2 of the 1967 Act defines “terrorist
organization”. It is defined as an organization listed in the First
Schedule. CPI (Maoist) has been listed at Item no. 34 in the First
Schedule. Chapters III onwards of the 1967 Act incorporate
various offences. Chapter IV has the title “punishment for
terrorist act”. Clause (k) of Section 2 provides that “terrorist act”
has the meaning assigned to it under Section 15 and the terrorist
act includes an act which constitutes an offence within the scope
of, and as defined in any of the treaties specified in the Second
Schedule.
17. Further, Section 10(a)(i) of Act 1967 provides that
where an association is declared unlawful by a notification
issued under Section 3 which has become effective under sub-
section (3) of that Section, a person, who is continues to be a
member of such association shall be punishable with
imprisonment for a term which may extend to two years, and
shall also be liable to fine therefore, so long as Section 10(a)(i)
8
stands a person who is or continues to be a member of such
association shall be liable to be punished.
18. As per mandate of section 13 of the Act 1967, who takes
part in or commits, or advocates, abets, advises or incites the
commission of, any unlawful activity, shall be punishable with
imprisonment for a term which may extend to seven years, and
shall also be liable to fine.
19. At this juncture it will be purposeful to discuss the core of
Section 43(d)(5) of the Act 1967 which mandates that the person
shall not be released on bail if the court is of the opinion that
there are reasonable grounds for believing that the accusations
made are prima facie true.
20. The consideration of bail which is to be taken into
consideration by the Court as per the parameter fixed under
Section 43-D(5) of the Act, 1967 has elaborately been dealt with
by the Hon’ble Apex Court in the case of National Investigation
Agency v. Zahoor Ahmad Shah Watali, [(2019) 5 SCC 1]
wherein at paragraph 23 it has been held by interpreting the
expression “prima facie true” as stipulated under Section 43D(5)
of the Act, 1967 which would mean that the materials/evidence
collated by the investigation agency in reference to the
accusation against the accused concerned in the First
Information Report, must prevail until contradicted and overcome
or disproved by other evidence, and on the face of it, shows the
complicity of such accused in the commission of the stated
offence. It has further been observed that it must be good and
9
sufficient on its face to establish a given fact or the chain of facts
constituting the stated offence, unless rebutted or contradicted.
The degree of satisfaction is lighter when the Court has to opine
that the accusation is “prima facie true”, as compared to the
opinion of the accused “not guilty” of such offence as required
under the other special enactments. For ready reference,
paragraph 23 of the aforesaid judgment is required to be quoted
herein which reads hereunder as :-
“23. By virtue of the proviso to sub-section (5), it
is the duty of the Court to be satisfied that there
are reasonable grounds for believing that the
accusation against the accused is prima facie
true or otherwise. Our attention was invited to
the decisions of this Court, which has had an
occasion to deal with similar special provisions
in TADA and MCOCA. The principle underlying
those decisions may have some bearing while
considering the prayer for bail in relation to the
offences under the 1967 Act as well. Notably,
under the special enactments such as TADA,
MCOCA and the Narcotic Drugs and
Psychotropic Substances Act, 1985, the Court
is required to record its opinion that there are
reasonable grounds for believing that the
accused is “not guilty” of the alleged offence.
There is a degree of difference between the
satisfaction to be recorded by the Court that
there are reasonable grounds for believing that
the accused is “not guilty” of such offence and
the satisfaction to be recorded for the purposes
of the 1967 Act that there are reasonable 1110
grounds for believing that the accusation
against such person is “prima facie” true. By its
very nature, the expression “prima facie true”
would mean that the materials/evidence
collated by the investigating agency in
reference to the accusation against the accused
concerned in the first information report, must
prevail until contradicted and overcome or
disproved by other evidence, and on the face of
it, shows the complicity of such accused in the
commission of the stated offence. It must be
good and sufficient on its face to establish a
given fact or the chain of facts constituting the
stated offence, unless rebutted or contradicted.
In one sense, the degree of satisfaction is
lighter when the Court has to opine that the
accusation is “prima facie true”, as compared to
the opinion of the accused “not guilty” of such
offence as required under the other special
enactments. In any case, the degree of
satisfaction to be recorded by the Court for
opining that there are reasonable grounds for
believing that the accusation against the
accused is prima facie true, is lighter than the
degree of satisfaction to be recorded for
considering a discharge application or framing
of charges in relation to offences under the
1967 Act….”
21. It is, thus, evident from the proposition laid down by the
Hon’ble Apex Court in the case of National Investigation
Agency vs. Zahoor Ahmad Shah Watali (Supra) that it is the
bounden duty of the Court to apply its mind to examine the entire
11
materials on record for the purpose of satisfying itself, whether a
prima facie case is made out against the accused or not.
22. Further, it is settled proposition of law that at the stage
of granting or non-granting of the bail, the Court is merely
expected to record a finding on the basis of broad probabilities
regarding the involvement of the accused in the commission of
the stated offence or otherwise and the elaborate examination or
dissection of the evidence is not required to be done at this
stage.
23. Further, the Hon’ble Apex Court by setting out
propounding the law in the same case of National Investigation
Agency v. Zahoor Ahmad Shah Watali (supra), has observed
that the elaborate examination or dissection of the evidence is
not required to be done at this stage and the Court is merely
expected to record a finding on the basis of broad probabilities
regarding the involvement of the accused in the commission of
the stated offence or otherwise. For ready reference, paragraphs
24 and 25 of the aforesaid judgment are being quoted herein
under:-
“24. A priori, the exercise to be undertaken by
the Court at this stage–of giving reasons for
grant or non-grant of bail–is markedly different
from discussing merits or demerits of the
evidence. The elaborate examination or
dissection of the evidence is not required to be
done at this stage. The Court is merely
expected to record a finding on the basis of
broad probabilities regarding the involvement of12
the accused in the commission of the stated
offence or otherwise.
25. From the analysis of the impugned
judgment, it appears to us that the High Court
has ventured into an area of examining the
merits and demerits of the evidence. For, it
noted that the evidence in the form of
statements of witnesses under Section 161 are
not admissible. Further, the documents pressed
into service by the investigating agency were
not admissible in evidence. It also noted that it
was unlikely that the document had been
recovered from the residence of Ghulam
Mohammad Bhatt till 16-8-2017 (para 61 of the
impugned judgment). Similarly, the approach of
the High Court in completely discarding the
statements of the protected witnesses recorded
under Section 164 CrPC, on the specious
ground that the same was kept in a sealed
cover and was not even perused by the
Designated Court and also because reference
to such statements having been recorded was
not found in the charge-sheet already filed
against the respondent is, in our opinion, in
complete disregard of the duty of the Court to
record its opinion that the accusation made
against the accused concerned is prima
facie true or otherwise. That opinion must be
reached by the Court not only in reference to
the accusation in the FIR but also in reference
to the contents of the case diary and including
the charge-sheet (report under Section 173
Cr.P.C.) and other material gathered by the
investigating agency during investigation.”13
24. It is, thus, evident that the exercise to be undertaken by the
court at this stage of granting bail of giving reasons for grant or
non-grant of bail that is markedly different from discussing
merits or demerits of the evidence. The elaborate examination
or dissection of the evidence is not required to be done at this
stage. Rather, the Court is merely expected to record a finding
on the basis of broad probabilities regarding the involvement of
the accused in the commission of the stated offence or
otherwise.
25. Further it is the duty of the Court to record its opinion that the
accusation made against the accused concerned is prima facie
true or otherwise and such opinion must be reached by the
Court not only in reference to the accusation in the FIR but
also in reference to the contents of the case diary and
including the charge-sheet (report under Section 173 CrPC)
and other material gathered by the investigating agency during
investigation. Reference in this regard may be taken from the
Judgment as rendered by the Hon’ble Apex Court in the case
of Ranjitsing Brahmajeetsing Sharma v. State of
Maharashtra reported in (2005) 5 SCC 294. For ready
reference the following paragraph of the aforesaid Judgment is
being quoted herein under:-
“46. The duty of the court at this stage is not to
weigh the evidence meticulously but to arrive at a
finding on the basis of broad probabilities. However,14
while dealing with a special statute like MCOCA having
regard to the provisions contained in sub-section (4) of
Section 21 of the Act, the court may have to probe into
the matter deeper so as to enable it to arrive at a finding
that the materials collected against the accused during
the investigation may not justify a judgment of
conviction. The findings recorded by the court while
granting or refusing bail undoubtedly would be tentative
in nature, which may not have any bearing on the merit
of the case and the trial court would, thus, be free to
decide the case on the basis of evidence adduced at
the trial, without in any manner being prejudiced
thereby.”
26. The Hon’ble Apex Court in a very recent judgment rendered
in Gurwinder Singh Vs State of Punjab and Another
reported in 2024 SCC OnLine SC 109 while taking in to
consideration of the judgment as rendered in the National
Investigation Agency v. Zahoor Ahmad Shah Watali (supra)
and Union of India Vs. K.A. Najeeb (supra) has observed
that, the proviso to Sub-section (5) of Section 43D puts a
complete embargo on the powers of the Special Court to
release an accused on bail and lays down that if the Court, ‘on
perusal of the case diary or the report made under
Section 173 of the Code of Criminal Procedure’, is of the
opinion that there are reasonable grounds for believing that the
accusation, against such person, as regards commission of
offence or offences under Chapter IV and/or Chapter VI of the
UAP Act is prima facie true, such accused person shall not
be released on bail or on his own bond.
15
27. The Hon’ble Apex Court further observed that the
conventional idea in bail jurisprudence vis-à-vis ordinary penal
offences that the discretion of Courts must tilt in favour of the
oft-quoted phrase – ‘bail is the rule, jail is the exception’ –
unless circumstances justify otherwise – does not find any
place while dealing with bail applications under UAP Act and
the ‘exercise’ of the general power to grant bail under the UAP
Act is severely restrictive in scope.
28. In the aforesaid context it has further been observed by the
Hon’ble Supreme Court that the courts are, therefore,
burdened with a sensitive task on hand and in dealing with bail
applications under UAP Act, the courts are merely examining if
there is justification to reject bail and the ‘justifications’ must be
searched from the case diary and the final report submitted
before the Special Court.
29. It has further been observed that it is only if the test for
rejection of bail is not satisfied – that the Courts would proceed
to decide the bail application in accordance with the ‘tripod
test’ (flight risk, influencing witnesses, tampering with
evidence).
30. For ready reference, following paragraphs of the aforesaid
Judgment are being quoted herein under:
“27. A bare reading of Sub-section (5) of Section 43D
shows that apart from the fact that Sub-section (5) bars
a Special Court from releasing an accused on bail
without affording the Public Prosecutor an opportunity
of being heard on the application seeking release of an16
accused on bail, the proviso to Sub-section (5) of
Section 43D puts a complete embargo on the powers of
the Special Court to release an accused on bail. It lays
down that if the Court, ‘on perusal of the case diary or
the report made under Section 173 of the Code of
Criminal Procedure’, is of the opinion that there are
reasonable grounds for believing that the accusation,
against such person, as regards commission of offence
or offences under Chapter IV and/or Chapter VI of the
UAP Act is prima facie true, such accused person shall
not be released on bail or on his own bond. It is
interesting to note that there is no analogous provision
traceable in any other statute to the one found in
Section 43D(5) of the UAP Act. In that sense, the
language of bail limitation adopted therein remains
unique to the UAP Act.
28. The conventional idea in bail jurisprudence vis-à-vis
ordinary penal offences that the discretion of Courts
must tilt in favour of the oft-quoted phrase – ‘bail is the
rule, jail is the exception’ – unless circumstances justify
otherwise – does not find any place while dealing with
bail applications under UAP Act. The ‘exercise’ of the
general power to grant bail under the UAP Act is
severely restrictive in scope. The form of the words
used in proviso to Section 43D (5)- ‘shall not be
released’ in contrast with the form of the words 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.
29. The courts are, therefore, burdened with a sensitive
task on hand. In dealing with bail applications under
UAP Act, the courts are merely examining if there is
justification to reject bail. The ‘justifications’ must be
searched from the case diary and the final report
submitted before the Special Court. The legislature has
prescribed a low, ‘prima facie’ standard, as a measure
of the degree of satisfaction, to be recorded by Court
when scrutinising the justifications [materials on record].
This standard can be contrasted with the standard of17
‘strong suspicion’, which is used by Courts while
hearing applications for ‘discharge–”
31. The Hon’ble Apex Court in the aforesaid judgment after
textual reading of Section 43D(5) UAP Act, has formulated the
guideline which was summarized in the form of a twin-prong
test. For ready reference the relevant paragraph is being
quoted herein under:
“31. On a textual reading of Section 43 D(5) UAP
Act, the inquiry that a bail court must undertake while
deciding bail applications under the UAP Act can be
summarised in the form of a twin-prong test:
1) Whether the test for rejection of the bail is
satisfied?
1.1 Examine if, prima facie, the alleged ‘accusations’
make out an offence under Chapter IV or VI of the
UAP Act
1.2 Such examination should be limited to case diary
and final report submitted under Section 173 CrPC;
2) Whether the accused deserves to be enlarged on
bail in light of the general principles relating to grant
of bail under Section 439 CrPC (‘tripod test’)?”
32. Further, it is settled proposition of law that at the stage of
granting or non-granting of the bail, the Court is merely
expected to record a finding on the basis of broad probabilities
regarding the involvement of the accused in the commission of
the stated offence or otherwise and the elaborate examination
or dissection of the evidence is not required to be done at this
stage.
33. Further, it is the duty of the Court to record its opinion that
the accusation made against the accused concerned is prima
18
facie true or otherwise and such opinion must be reached bythe Court not only in reference to the accusation in the FIR but
also in reference to the contents of the charge-sheet and other
material gathered by the investigating agency during
investigation.
34. This Court, on the basis of the aforesaid position of law and
the factual aspect as has been gathered against the appellant
is proceeding to examine as to whether the accusation against
the appellants is prima facie true as compared to the opinion of
accused not guilty by taking into consideration the material
collected in course of investigation.
35. From the record, it is evident that the Counter affidavit has
been filed by the respondent wherein the 2nd charge-sheet has
been appended.
36. It is evident from the counter affidavit that the appellant has
been charge-sheeted accused (A-1) of the instant case.
37. This Court, on the basis of the aforesaid material and settled
proposition of law as discussed hereinabove has considered the
culpability shown to be committed as has been surfaced in
course of investigation as available in the charge-sheet has
found that the appellant, namely, Sunil Tudu (A-1) was a
member of CPI (Maoist). He used to provide logistic support to
A-17. On 12.06.2019, A-1, along with A-4 and A- 11, went to
Arhanja forest (place of meeting) to meet A-17. On 13.06.2019,
A-1 attended meeting conducted by A-19 and A-17 to carry out
terrorist attack on the police personnel. On 14.06.2019, A-1 took
19
along one another co-accused on motorcycle, Hero-X-Pro modelbearing registration No- JH01-BH5495 (provided by A-4), and
went to Kukruhaat Baazar and was involved in the killing of
Police personnel and looting of their weapons. It is evident from
the material so collected that the appellant was also identified by
sole surviving constable driver Sukhlal Kudada who was eye
witness of the instant crime who identified the appellant during
TIP carried out in presence of learned Judicial Magistrate on
7.1.2020.
38. Further, as would be evident from paragraph-17.36.1 of the
supplementary charge-sheet which pertains to role and
additional offences established against the present appellant,
namely, Sunil Tudu (A-1) that Investigation has established that
A-1 was a member of CPI (Maoist). He used to provide logistic
support to A-17. On 12.06.2019, A-1, along with A-4 and A- 11,
went to Arhanja forest (place of meeting) to meet A-17. On
13.06.2019, A-1 attended meeting conducted by A-19 and A-17
to carry out terrorist attack on the police personnel. On
14.06.2019, A-1 took along one another co-accused on
motorcycle, Hero-X-Pro model bearing registration No- JH01-
BH5495 (provided by A-4), and went to Kukruhaat Baazar and
was involved in the killing of Police personnel and looting of their
weapons. After commission of offence, A-1 accompanied and
broughtA-18 and one another co- accused, on motorcycle, to
Saudih and left them there.
20
39. Therefore, as per averments made in pre-Para, it is
established that A-1 became a member of CPI (Maoist), a
proscribed organization, and participated in the meeting in which
conspiracy was hatched among co-accused with common
intention to assemble with deadly weapons at Kukruhaat to carry
out terrorist attack on the police patrolling party. The appellant
(A-1) participated in the incident which resulted in the killing of 05
police personnel and subsequently, snatching/looting of
Government issued arms and ammunitions, wireless set and
setting the vehicle on fire.
40. Thus, it appears from the aforesaid paragraph of the charge-
sheet that the appellant was close associate of the CPI Maoist a
banned terrorist organisation declared by the Govt. of India and
on the basis of material brought on record it appears that the
appellant was part of the criminal conspiracy hatched with
association and direction of armed cadres of CPI Maoist.
41. Thus, it appears from the content of the charge-sheet that
there is prosecutable evidence against the appellant which is
supported by documentary evidence of the chargesheet.
42. Learned counsel for the appellant has taken the ground of
custody and has also taken the aid of the judgment passed by
the Hon’ble Apex Court in the case of Union of India Vs. K.A.
Najeeb (supra).
43. It has been contended by taking aid of the aforesaid judgment
that in the instant case there is no probability in near future that
trial will be concluded, hence, taking into consideration the period
21
of custody, and probable delay in trial, it is a fit case where theappellant deserves to be released from judicial custody.
44. While, on the other hand, learned counsel appearing for the
respondent has seriously disputed the aforesaid fact apart from
the merit that the present appellant is having a close association
with the CPI (Maoist) a banned organization and in the said
occurrence wherein the present appellant had played active role
in which 5 police personnel has been killed and Arms and
ammunition have been looted.
45. The contention has been made that the judgment relied upon
by the learned counsel for the appellant i.e. the judgment
rendered by the Hon’ble Apex Court in the case of Union of
India Vs. K.A. Najeeb (Supra), is not fit to be accepted, reason
being that in the said case, the Hon’ble Apex Court taking in to
consideration the huge number of witnesses i.e. 276, put a pin-
pointed question therein for reducing the number of witnesses by
the investigating agency and when the same has been shown to
be not possible then the Hon’ble Apex Court, by taking into
consideration the period of custody and there is no likelihood of
conclusion of the trial in near future, has not interfered in the
order granting bail to the respondent-accused.
46. But here in the instant case, the appellant is closed
associate by giving direct aid to the Naxal outfit and involved in
alleged commission of crime which resulted into death of 05
police personnel. Further, on instruction, it has been submitted
by the learned counsel appearing for the Respondent that the
22
prosecuting authority depending upon the situation will alsoreduce the number of witnesses and try to conclude the trial
without any unnecessary delay as such in aforesaid fact the
judgment as relied by the learned counsel for the appellant is not
applicable in the facts of the instant case.
47. Considering the above facts and circumstance and after
going through the evidence of the prosecution witnesses,
chargesheet and other documentary evidence recorded by the
NIA it is evident that there is direct and serious allegation against
the appellant that in nexus with the member of proscribed
organization, and participated in the alleged occurrence wherein
05 police personnel were killed and arms and ammunition have
been looted.
48. So far as the argument regarding reliance having been
placed upon the judgment of Union of India vs. K.A. Najeeb
(Supra) is concerned, this Court is of the view that in the facts
and circumstances the aforesaid judgment will not be applicable
herein since in the said case altogether 276 charge-sheeted
witnesses were to be examined and on the pin-pointed question
by the Hon’ble Apex Court, the investigating agency has
submitted that there is no question of reducing the number of
charge-sheeted witnesses and in view thereof and considering
the period of custody, the Hon’ble Apex Court has not interfered
in the order by which the bail was granted to respondent-
accused.
23
49. While, the fact of the instant case is that there are only 138
witnesses as per the charge-sheet which is very much less in
comparison to 276 witnesses of aforesaid case.
50. Further, in the instant case it has been submitted by the
learned counsel appearing for the state on instruction that in
course of trial, the number of charge-sheeted witnesses may
also be reduced depending upon the situation and trial may be
concluded in shortest time period.
51. Further, charge in this case has been framed against the
appellant Sunil Tudu (A-1) and Seventeen other accused
persons on 25.01.2023 under section 120B read with section
149, 121, 121A, 148, 302, 323, 324, 326, 353, 379, 395, 396,
435 of IPC, section 10, 13, 16, 18, 20, 38, 39 of UA(P) act, 1967,
section 27 of Arms Act, 1959, section 17 of CLA Act, 1967 and
till date prosecution has examined Fifteen chargesheet
witnesses out of 138 cited witnesses.
52. Further, in the instant case the role of appellant in criminal
conspiracy which is very serious in nature and appellant worked
as overground worker and as per direction of A-17 he carried out
Recce of Kukruhaat Bazaar. He briefed movement of the police
with A 17 and A 19 and he attended meeting in Arhanja forest,
he was part of Maoist team which attacked police personnel in
which five police personnel were killed and Government arms
ammunitions were looted and police vehicle was burnt.
53. This Court considering the aforesaid distinguishing fact in
the present case by taking into consideration the active
24
involvement of the appellant with the banned organization and
further taking in to gravity of the offence, is of the view that the
judgment rendered by the Hon’ble Apex Court in the case of
Union of India vs. K.A. Najeeb (Supra) is not fit to be applied
herein.
Conclusion
54. This Court, therefore, is of the view that sufficient material
has been surfaced by the investigating agency showing the
culpability said to be committed by the appellant and as such,
this Court is of the view that it is not a fit case where it can be
said that the allegation which has been levelled and surfaced in
course of investigation is prima facie untrue.
55. Further, the prayer for regular bail of the other co-accused
persons, namely, Alamgir Ansari; Tabarak Ansari @ Maulana;
Soyna Singh Sardar and; Naresh Lohar @ Ramu Lohar @ Nam
Naresh Lohar @ Ram Naresh Lohar @ Nam Naresh Lohar have
already been dealt with by the co-ordinate Bench of this Court
and have been rejected vide orders dated 17.01.2023 passed in
Criminal Appeal (DB) No. 1226 of 2022; order dated 17.01.2023
passed in Criminal Appeal (DB) No. 1272 of 2022; order dated
21.09.2022 passed in Criminal Appeal (DB) No. 234 of 2022
and; order dated 18.08.2023 passed in Criminal Appeal (DB) No.
1539 of 2022, respectively.
56. Accordingly, this Court, on the basis of the facts as referred
hereinabove and coming to the provision of Section 43D(5) of
the Act, 1967 as also the judgment rendered by the Hon’ble
25
Apex Court in the case of Zahoor Ahmad Shah Watali (supra)
and Gurwinder Singh Vs State of Punjab and Another(supra)
is of the view that it cannot be said that the allegation levelled
against the appellants is prima facie untrue.
57. In view of the foregoing discussions, we find no illegality in
the impugned order dated 26.07.2024 passed in Misc. Criminal
Application No.1947 of 2024 by the Additional Judicial
Commissioner-XVI-cum-Spl. Judge, NIA, Ranchi rejecting the
bail petition of the appellant, as such, order impugned requires
no interference by this Court.
58. In the result, we find no merit in the instant appeal, hence,
the same is, hereby, dismissed.
59. Pending Interlocutory Application(s), if any, also stands
dismissed.
60. It is made clear that any observation made herein will not
prejudice the case of the appellant in course of trial and view as
expressed by this Court is only limited to the instant appeal.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Rohit/-A.F.R.
26