Jharkhand High Court
Suresh Yadav @ Sirish Yadav vs Union Of India Through National … on 10 December, 2024
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 1693 of 2023
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Suresh Yadav @ Sirish Yadav, aged about 35 years, son of
Bilash Yadav, resident of village Chani, P.O. Lawalong, P.S.
Lawalong, District Chatra, Jharkhand.
... ... Appellant
Versus
Union of India through National Investigation Agency having its
office at N.I.A. Camp office, Quarter No.305, Sector-II, P.O.
Dhurwa, P.S. Dhurwa, District Ranchi, Jharkhand.
... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Indrajit Sinha, Advocate
: Mr. Akhouri Awinash Kumar, Advocate
: Ms. Ashwini Priya
For the State : Mr. Amit Kumar Das, Advocate
: Mr. Saurav Kumar, Advocate
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C.A.V. on 21/11/2024 Pronounced on 10/12/2024
Per Sujit Narayan Prasad, J.:
Prayer
1. The instant criminal appeal has been preferred on behalf
of the appellant under Section 21(4) of the National
Investigation Agency Act,2008 for setting aside the order dated
02.09.2023 passed in Misc. Criminal Application No. 2021 of
2023 by learned Additional Judicial Commissioner-XVI-cum
Special Judge, NIA, Ranchi whereby and whereunder the prayer
for bail, in connection with Special NIA Case No. 01/2019 (RC
CaseNo.13/2019/NIA/DLI) arising out of Balumath P.S. Case
No. 225 of 2018 registered under Sections 25(1-A) 26(2) and of
35 of Arms Act, under Section 17 (i) (ii) of CLA Act and under
1
Sections 10 and 13 of the Unlawful Activities (Prevention) Act,
1967, has been rejected.
Factual Matrix
2. The prosecution case, as per the First Information
Report, in brief is that the case is pertaining to the incident in
which people’s liberation front of India PLFI members including
the Area commander of PLFI for Balumath, District- Latehar
assembled on 03.12.2018 to conduct an unlawful act for which
a meeting amongst members of people’s liberation front of India
(PLFI) was being held in the Titir Mahua area of Balubhang
under the jurisdiction of Police station Balumath. On the basis
of information, a team was formed under the supervision of Mr.
Nitin Khandelwal (then SDPO Balumath), which comprised of
Quick Action Team of 11th Battalion, 133rd Battalion and
214th Battalion of Central Reserve police force and Shri Sanjay
Oroan, officer in charge of Herhanj police station was deputed
to conduct a search at the suspected place. The team
comprising of above cited police personnel and CRPF personnel
reached the spot at around 16.15 Hrs. On seeing the police
party, People’s Liberation Front of India (PLFI) commander/
personnel tried to escape from the site, but due to the agility of
the police personnel, four perosns namely (1) Gulab Kumar
Yadav (2) Ravi Yadav @ Amit Ji (3) Pawan Kumar Yadav and (4)
Rakesh Kumar Paswan @ Aryan Ji were arrested from the spot.
On conducting personal search of the above mentioned four
2
accused persons, arms and ammunitions were recovered from
their possession.
3. Subsequently, Balumath P.S. Case No. 225/18 dated
03.12.2018 was instituted in the District Latehar (Jharkhand)
under section 25(1A), 26(2) and 35 of Arms Act 1959, Sections
17 (i)(ii) of CLA Act and sections 10 and 13 of Unlawful
Activities (Prevention) Act, 1967 against five named accused
persons and after investigation Latehar Police has submitted
charge sheet against five accused persons namely (i) Santosh
Yadav @ Tiger (ii) Gulab Kumar Yadav (iii) Ravi Yadav @ Amit Ji
@ Ravi Kumar Yadav @ Rabi Yadav (iv) Rakesh Kumar Paswan
@ Aryan Ji and (v) Pawan Kumar Yadav.
4. Thereafter, considering the gravity of offence in the
instant crime due to seizure of foreign made arms and
ammunitions, the Central Government in exercise of the powers
conferred under sub section 5 of section 6 r/w section 8 of the
National Investigation Agency Act, 2008, vide MHA, New Delhi
CTCR division order no 11011/30/2019/IS-IV dated
24.06.2019, directed NIA to take up investigation of the case
and accordingly PS Balumath case no 225/2018 dated
03.12.2018 was re-registered as NIA case no RC
13/2019/NIA/DLI dated 26.06.2019 u/s 25(1-A),26(2) and 35
of Arms Act, 1959, section 17(i)(ii) of the Criminal Law
Amendment Act, 1908 and section 10 and 13 of the Unlawful
Activities (prevention) Act, 1967.
3
5. It has also surfaced during investigation by NIA, that in
August 2018, Gulab Kumar Yadav (A-1), Ravi Yadav @ Amit Ji
@ Ravi Kumar Yadav @ Rabi Yadav (A-2), Rakesh Kumar
Paswan @Aryan Ji (A-3) and Pawan Kumar Yadav (A-4) were
joined PLFI through the then Sub Zonal Commander of Latehar
and Chatra namely Santosh Yadav @ Tiger (A-5) for extortion.
In August 2018, Gulab Kumar Yadav (A-1) received two foreign
made (HK33 rifle and COLT AR15 rifle) weapons and
ammunition from Pramjeet Mochi @Sonu Mochi @ Sonu (A-7)
through the accused/appellant Suresh Yadav @Sirish Yadav (A-
6). These weapons were used by Gulab Kumar Yadav (A-1), Ravi
Yadav @ Amit Ji @ Ravi Kumar Yadav Rabi Yadav (A-2), Rakesh
Kumar Paswan @ Aryan Ji (A-3) and Pawan Kumar Yadav (A-4)
on joining PLFI in Balumath Area. In the course of further
investigation, it was further brought out that as per the
analysis of the CDR Reports of the mobile phones of the
accused persons, that they were well connected with each other
during the relevant period.
6. After the investigation, NIA has filed the Chargesheet,
vide number 01/2020 dated 14th February, 2020 against 7
accused persons, including the present appellant Suresh Yadav
keeping further investigation continued under section-173(8)
Cr.P.C.
7. Consequently, the appellant filed an application for grant
of regular bail before the learned Additional Judicial
4
Commissioner-XVI-cum-Special Judge, NIA, Ranchi by taking
the ground that the appellant is innocent and has committed
no offence.
8. Further, learned counsel for the petitioner (appellant
herein) has taken ground that the appellant is in custody since
2019, as such it is a fit case where the appellant may be
directed to be released on bail.
9. Per contra learned counsel for the NIA had submitted
before the learned special court that prior to this Misc. Criminal
Application, the petitioner’s (appellant herein) prayer for bail
vide Misc. Cr. Application No. 472/2020 has been rejected by
the learned special Judge NIA and as such the present
application is not fit to be allowed.
10. Learned Special Judge after considering the submissions
advanced by the parties, had rejected the bail application vide
order dated 02.09.2023 against which the present appeal has
been filed.
Submission of the learned counsel for the appellant:
11. The learned counsel for the appellant has assailed the
impugned order, by which the prayer for bail of the appellant
has been rejected, on the following grounds:-
(i) That the appellant has remained in custody for
more than four years but without taking into
consideration the same, the prayer for bail has been
rejected by the learned special Court.
5
(ii) Appellant in no way concerned with the PLFI group.
He was not arrested on the spot and nothing has
been recovered from his conscious possession to
show his proximity with the PLFI.
(iii) The appellant has falsely been implicated in this
case, only on the basis of the confessional statement
of the co-accused persons. Petitioner is not named
in the F.I.R. So far, the seizure of the alleged arms
and ammunition is concerned, nothing
incriminating articles have been recovered or seized
from conscious possession of the petitioner.
(iv) Even the allegations made in the charge sheet, no
offence in terms of Sections 10 and 13 of U.A. (P)
Act and other provisions of Arms Act and CLA Act
are made out against the appellant.
(v) The appellant was arrested on 27.12.2019 and since
then he is lying in jail custody. The Ministry of
Home Affairs, Government of India vide an order
dated 13.02.2020 has granted sanctioned for
prosecution but till date only 31 witnesses, out of 60
witnesses have been examined by the NIA. Needless
to say, altogether 83 witnesses, 52 documents and
10 material exhibits were there which the
respondent NIA intendeds to reply upon to prove the
charge against the appellant, but after pruning of
6
the witnesses by NIA it has become total 60
witnesses. In this regard, reliance is placed upon
the judgement of Union of India v. K.A. Najeeb,
reported in (2021) 3 SCC 713,
(vi) The N.I.A. who has investigated the matter and has
submitted charge sheet under the U.A. (P) Act,
admittedly, failed to brought any material or colour
of allegation which makes out a case that the
appellant being the supplier of arms and
ammunition to proscribed terrorist organization
PLFI.
12. The learned counsel for the appellant, based upon the
aforesaid grounds, has submitted that the learned court has
not taken note of the aforesaid facts, therefore, the present
appeal is fit to be allowed and it is a fit case where the appellant
may be directed to be released on bail.
Submission of the learned counsel for the respondent:
13. While on the other hand, Mr. Amit Kumar Das, learned
counsel appearing for the National Investigating Agency (NIA)
has defended the impugned order by taking following grounds:
(i) There is specific attributability against the appellant, as
would be evident from various paragraphs of the charge-
sheet, particularly, paragraph no.17.7 and 17.15.
(ii) It has come during investigation that In August 2018,
Gulab Kumar Yadav (A-1) received two foreign made
7
(HK33 rifle and COLT AR15 rifle) weapons and
ammunition from Pramjeet Mochi @Sonu Mochi @ Sonu
(A-7) through the appellant Suresh Yadav @Sirish Yadav
(A-6). These weapons were used by Gulab Kumar Yadav
(A-1), Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav (A-2),
Rakesh Kumar Paswan @ Aryan Ji (A-3) and Pawan
Kumar Yadav (A-4) on joining PLFI in Balumath Area in
August 2018.
(iii) During investigation it has been revealed against the
appellant Suresh Yadav (A-6) that he being over ground
worker and informer of CPI (Maoist), was an associate of
accused Paramjeet Mochi @ Sonu by providing him
logistic support from time to time since 2014, when
Paramjeet was Zonal Commander of CPI(Maoist).
(iv) So far the direction passed by Hon’ble Apex Court in the
different cases upon which reliance has been placed by
the learned counsel for the appellant, the trial of the
instant case is in progress and the charge-sheet has
already been submitted by the respondent-NIA against
the present appellant and the further investigation, in
terms of Section 173(8) of Cr.P.C is continued.
(v) Further, the instant case is in advance stage and till date
out of 60 witnesses, NIA has already examined 31
witnesses. Case has been taken on priority basis for
8
recording of the evidence. Releasing accused on bail may
hamper prosecution evidence.
(vi) In the case of “National Investigation Agency v. Zahoor
Ahmad Shah Watali” (2019) 5 SCC 1, the Hon’ble Apex
Court has held that bail proceedings under the Special
enactment are distinct and the Courts are duty bound to
refused bail where the suspect is prima facie believed to
be guilty.
(vii) It has been submitted that the Hon’ble Apex Court in the
judgment rendered in “Gurwinder Singh v. State of
Punjab and Another [(2024) SCC OnLine SC 109] has
held that “for the offences under UA(P) Act, bail will be an
exception and jail will be the rule”.
14. Mr. Amit Kumar Das, learned counsel for the
respondent-NIA, based upon the aforesaid grounds, has
submitted that since the nature of allegation levelled against
the appellant is very grave, therefore, the present appeal is fit to
be dismissed.
Analysis
15. We have heard the learned counsel for the parties,
perused the material available on record, the pleading made on
behalf of the appellant as available in Memo of Appeal and the
counter affidavit filed on behalf of the National Investigation
Agency.
9
16. It is evident from factual aspects that the instant case is
pertaining to the incident in which people’s liberation front of
India PLFI members including the Area commander of PLFI for
Balumath, District- Latehar assembled on 03.12.2018 to
conduct an unlawful act for which a meeting amongst members
of people’s liberation front of India (PLFI) was being held in the
Titir Mahua area of Balubhang under the jurisdiction of Police
station Balumath.
17. On seeing the police party, People’s Liberation Front of
India (PLFI) commander/ personnel tried to escape from the
site, but due to the agility of the police personnel, four perosns
namely (1) Gulab Kumar Yadav (2) Ravi Yadav @ Amit Ji (3)
Pawan Kumar Yadav and (4) Rakesh Kumar Paswan @ Aryan Ji
were arrested from the spot. On, conducting personal search of
the above mentioned four accused persons, arms and
ammunitions were recovered from their possession.
18. Subsequently, Balumath P.S. Case No. 225/18 dated
03.12.2018 was instituted in the District Latehar (Jharkhand)
under section 25(1A), 26(2) and 35 of Arms Act 1959, Sections
17 (i)(ii) of CLA Act and sections 10 and 13 of Unlawful
Activities (Prevention) Act, 1967 against five named accused
persons.
19. Thereafter, considering the gravity of offence in the
instant crime due to seizure of foreign made arms and
ammunitions, the Central Government in exercise of the powers
10
conferred under sub section 5 of section 6 r/w section 8 of the
National Investigation Agency Act, 2008, vide MHA, New Delhi
CTCR division order no 11011/30/2019/IS-IV dated
24.06.2019, directed NIA to take up investigation of the case
and accordingly PS Balumath case no 225/2018 dated
03.12.2018 was re-registered as NIA case no RC
13/2019/NIA/DLI dated 26.06.2019 u/s 25(1-A),26(2) and 35
of Arms Act, 1959, section 17(i)(ii) of the Criminal Law
Amendment Act, 1908 and section 10 and 13 of the Unlawful
Activities (prevention) Act, 1967.
20. It has come during investigation that in August 2018,
Gulab Kumar Yadav (A-1) received two foreign made (HK33 rifle
and COLT AR15 rifle) weapons and ammunition from Pramjeet
Mochi @Sonu Mochi @ Sonu (A-7) through the appellant Suresh
Yadav @Sirish Yadav (A-6). In the course of further
investigation, it was further brought out that as per the
analysis of the CDR Reports of the mobile phones of the
accused persons, that they were well connected with each other
during the relevant period.
21. After the investigation, NIA has filed the Chargesheet,
vide number 01/2020 dated 14th February, 2020 against 7
accused persons, including the present petitioner Suresh Yadav
keeping further investigation continued under section-173(8)
Cr.P.C.
11
22. Consequently, the appellant filed an application for grant
of regular bail before the learned Additional Judicial
Commissioner-XVI-cum-Special Judge, NIA, Ranchi by taking
the ground that the appellant is innocent and has committed
no offence.
23. Learned Special Judge after considering the submissions
advanced by the parties, had rejected the bail application vide
order dated 02.09.2023 against which the present appeal has
been filed.
24. 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).
25. The main objective of the Act, 1967 is to make powers
available for dealing with activities directed against the integrity
and sovereignty of India. As per Preamble, the Unlawful
Activities (Prevention) Act, 1967 has been enacted to provide for
more effective prevention of certain unlawful activities of
individuals and associations and dealing with terrorist activities
and for matters connected therewith. Therefore, the aim and
object of enactment of U.A.(P) Act is also to provide for more
effective prevention of certain unlawful activities.
12
26. 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.
27. 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.
28. Further section 10(a)(i) of Act, 1967 provides that where
an association is declared unlawful by a notification issued
under Section 3 which has become effective under sub-section
(3) of that Section, a person, who is continues to be a member
of such association shall be punishable with imprisonment for
a term which may extend to two years, and shall also be liable
to fine therefore, so long as Section 10(a)(i) stands a person who
13
is or continues to be a member of such association shall be
liable to be punished.
29. Further, it would be relevant to mention the offences
punishable under Sections 13 of the 1967 Act, which read thus:
13. Punishment for unlawful activities.–(1) Whoever– (a)
takes part in or commits, or
(b) advocates, abets, advises or incites the commission of,
any unlawful activity, shall be punishable with
imprisonment for a term which may extend to seven
years and shall also be liable to fine. (2) Whoever, in any
way, assists any unlawful activity of any association,
declared unlawful under section 3, after the notification
by which it has been so declared has become effective
under sub-section (3) of that section, shall be punishable
with imprisonment for a term which may extend to five
years, or with fine, or with both. (3) Nothing in this
section shall apply to any treaty, agreement or
convention entered into between the Government of India
and the Government of any other country or to any
negotiations therefor carried on by any person authorised
in this behalf by the Government of India.
30. Thus, it is evident that Section13 prescribes Punishment
for unlawful activities. It is further evident that as per section
13 (1) Whoever takes part in or commits, or advocates, abets,
advises or incites the commission of, any unlawful activity,
shall be punishable with imprisonment for a term which may
extend to seven years and shall also be liable to fine.
31. The Hon’ble Apex Court in the case of National
Investigation Agency Vrs. Zahoor Ahmad Shah Watali,
reported in [(2019) 5 SCC 1] wherein at paragraph 23 it has
been held by interpreting the expression “prima facie true”
14
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 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,
24, 25 and 26 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 the15
satisfaction to be recorded by the Court that there are
reasonable grounds for believing that the accused is “not
guilty” of such offence and the satisfaction to be recorded
for the purposes of the 1967 Act that there are
reasonable 11 grounds for believing that the accusation
against such person is “prima facie” true. By its very
nature, the expression “prima 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….
24. A priori, the exercise to be undertaken by the Court
at this stage of giving reasons for grant or non-grant of
bail is markedly different from discussing merits or
demerits of the evidence. The elaborate examination or
dissection of the evidence is not required to be done at
this stage. The Court is merely expected to record a
finding on the basis of broad probabilities regarding the
involvement of the accused in the commission of the
stated offence or otherwise.
25. From the analysis of the impugned judgment, it
appears to us that the High Court has ventured into an16
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.
26. Be it noted that the special provision, Section 43-D of
the 1967 Act, applies right from the stage of registration
of FIR for the offences under Chapters IV and VI of the
1967 Act until the conclusion of the trial thereof. To wit,
soon after the arrest of the accused on the basis of the
FIR registered against him, but before filing of the charge-
sheet by the investigating agency; after filing of the first
charge-sheet and before the filing of the supplementary
or final charge-sheet consequent to further investigation
under Section 173(8) CrPC, until framing of the charges
or after framing of the charges by the Court and
recording of evidence of key witnesses, etc. However, once
charges are framed, it would be safe to assume that a
very strong suspicion was founded upon the materials17
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.
32. It is, thus, evident from the proposition laid down by the
Hon’ble Apex Court in the case of National Investigation
Agency v. Zahoor Ahmad Shah Watali (Supra) that it is the
bounden duty of the Court to apply its mind to examine the
entire materials on record for the purpose of satisfying itself,
whether a prima facie case is made out against the accused or
not.
33. 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. 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 Vrs. State of
18
Maharashtra, reported in (2005) 5 SCC 294. For ready
reference the following paragraph of the aforesaid Judgment is
being quoted herein under:-
“46. The duty of the court at this stage is not to weigh the
evidence meticulously but to arrive at a finding on the
basis of broad probabilities. However, while dealing with
a special statute like MCOCA having regard to the
provisions contained in sub-section (4) of Section 21 of
the Act, the court may have to probe into the matter
deeper so as to enable it to arrive at a finding that the
materials collected against the accused during the
investigation may not justify a judgment of conviction.
The findings recorded by the court while granting or
refusing bail undoubtedly would be tentative in nature,
which may not have any bearing on the merit of the case
and the trial court would, thus, be free to decide the case
on the basis of evidence adduced at the trial, without in
any manner being prejudiced thereby.”
34. Further, it is the duty of the Court to record its opinion
that the accusation made against the accused concerned is
prima facie true or otherwise and such opinion must be
reached by the Court not only in reference to the accusation in
the FIR but also in reference to the contents of the charge-sheet
and other material gathered by the investigating agency during
investigation.
35. Further the Hon’ble Apex Court in the case of Gurwinder
Singh v. State of Punjab (2024) 5 SCC 403 has extensively
considered its earlier decision in the case of National
Investigation Agency v. Zahoor Ahmad Shah Watali (supra)
19
and K.A. Najeeb (supra). Paragraph 32 of the said decision
reads thus:
“32. In this regard, we need to look no further than
Watali case [NIA v. Zahoor Ahmad Shah Watali, (2019) 5
SCC 1 : (2019) 2 SCC (Cri) 383] 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 paras 23 to 24 and
26 to 27, the following 8-point propositions emerge and
they are summarised as follows:
32.1. Meaning of “prima facie true”:
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.
32.2. Degree of satisfaction at pre charge-sheet, post
charge-sheet and post-charges — compared:
“26. … once charges are framed, it would be safe to
assume that a very strong suspicion was founded upon
the materials before the Court, which prompted the Court
to form a presumptive opinion as to the existence of the
factual ingredients constituting the offence alleged
against the accused, to justify the framing of charge. In
that situation, the accused may have to undertake an
arduous task to satisfy the Court that despite the framing
of charge, the materials presented along with the charge-
sheet (report under Section 173 of 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.”
32.3. Reasoning, necessary but no detailed evaluation
of evidence:
20
“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.”
32.4. Record a finding on broad probabilities, not
based on proof beyond doubt:
“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.”
32.5. Duration of the limitation under Section 43-
D(5):
“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.”
32.6. Material on record must be analysed as a
“whole”; no piecemeal analysis
“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.”
32.7. Contents of documents to be presumed as true:
“27. … The Court must look at the contents of the
document and take such document into account as it
is.”
32.8. Admissibility of documents relied upon by
prosecution cannot be questioned:
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 the21
document at this stage, on the ground of being
inadmissible in evidence, is not permissible.”
36. This Court, on the basis of the abovementioned position
of law and the factual aspect, as has been gathered against the
appellant, is proceeding to examine as to whether the
accusation against the appellant is prima facie true as
compared to the opinion of accused not guilty by taking into
consideration the material collected in course of investigation.
37. Counter affidavit has been filed by the respondent
wherein the various accusation based upon the investigation
has been stated against the present appellant.
38. It is evident that after taking over the investigation, the
respondent NIA, submitted first Supplementary Charge Sheet
being Charge Sheet No. 01 of 2020 dated 14.02.2020 against
the accused persons including the present appellant, arraigned
as accused No. A-6 under Sections 120B r/w 384, 385, 386
and 387 of the Indian Penal Code, under Sections 25(1- A), 26
& 29 Arms Act, Section 17, 18, 18B, 20 and 23 of Unlawful
Activities (Prevention) Act, 1967 and Section 17 of the Criminal
Law (Amendment) Act, 1908.
39. Accordingly, cognizance was taken by court of Spl.
Judge, NIA vide order dt. 14.2.2020 and after supplying police
paper charge was framed against the present appellant and
other six accused persons on 11.01. 2021.Presently trial of the
22
case is continuing and as per record, out of 60 witnesses 31
witnesses have been examined.
40. This Court, on appreciation of the rival submissions and
in order to assess that any evidence prima facie establishing the
accusation against the appellant was there or not, has thought
it proper to consider the chargesheet filed against him copy of
which has been appended with the petition. For ready reference
the relevant paragraphs are being quoted as under:
17.7 Deposition of confessional statement by
witnesses u/s 164 CrPC:
Statements of Protected witnesses (PW) P-1 and P-2
were recorded u/s 164 of CrPC. In the statement of
Protected Witness 1, it is established that accused
Santosh Yadav @ Tiger (A-5) had joined the CPI
(Maoist) militant organization in 2003 at the cadre
level but in 2007 he left the CPI (Maoist) and joined
the PLFI, a terrorist organization. In December 2013,
Gulab Kumar Yadav (A-1), son of Jugesh Yadav,
resident of village Chani, PS Lawalong, Chatra and
his other associates of PLFI were arrested by
Balumath Police from the Titir Mahua forest area of
Balubhang under the jurisdiction of Police Station
Balumath and 02 foreign made weapons were seized
from their possession. Once, Rajesh Yadav @ Kailu
Yadav had told him that these weapons were given
to Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav Rabi
Yadav (A-2) and Gulab Kumar Yadav (A-1) by
Pramjeet Mochi @ Sonu Mochi Sonu (A-7) through
Suresh Yadav Sirish Yadav (A-6) Rajesh Yadav @
Kailu Yadav further informed him that Suresh Yadav
@ Sirish Yadav (A-6) had given these foreign made
weapons to Gulab Kumar Yadav (A-1) in his
presence and he had seen the weapons from his own
eyes. Suresh Yadav @ Sirish Yadav (A- 6) and23
Pramjeet Mochi @ Sonu Mochi @ Sonu (A-7) have a
very close friendship and Suresh Yadav @ Sirish
Yadav (A-6) used to work as informer for Pramjeet
Mochi @ Sonu Mochi @ Sonu (A-7).
P-1 further disclosed that Ravi Yadav
@Amit Ji @ Ravi Kumar Yadav Rabi Yadav (A-2) and
Gulab Kumar Yadav (A-1) had worked for Maoist
Pramjeet Mochi @Sonu Mochi @ Sonu (A-71 in CPI
(Maoist), a terrorist organization, from 2014 to 2016
before joining PLFI through Santosh Yadav @Tiger
(A-5) and after sometime, they also inducted Pawan
Kumar Yadav (A-4), son of Govind Yadav, resident of
Heranhopa, Balumath, Latehar and Rakesh Kumar
Paswan @Aryan Ji (A-3), sor. of Prakash Paswan,
village Dhada, PS-Lawalong, District-Chatra in PLFI
through Santosh Yadav @Tiger (A-5). Santosh Yadav
@ Tiger (A-5), Gulab Kumar Yadav (A- 1), Ravi Yadav
@Amit Ji @ Ravi Kumar Yadav @Rabi Yadav (A-2),
Pawan Kumar Yadav (A-4) and Rakesh Kumar
Paswan @ Aryan Ji (A-3) used to carry these
weapons with them for extortion of levy from the
contractors of the area who were engaged in
construction works.
In the statement of Protected Witness-2, it is
established that accused Santosh Yadav Tiger (A-5)
is his cousin and he had joined militant organization
CPI (Maoist) in 2003 at a cadre level. But in 2007, he
left the CPI (Maoist). Further, he revealed that in
2014, he and Suresh Yadav @ Sirish Yadav (A-6)
were taken by Ravi Yadav @ Amit Ji @ Ravi Kumar
Yadav (A-2) to Hariharganj Bihar, where they met
Pramjeet Mochi @ Sonu Mochi @ Sonu. In August
2018, he and Gulab Kumar Yadav (A-1) went at
Parsahi Talab village Chani, on the call of Suresh
Yadav @ Sirish Yadav, where Pramjeet Mochi @
Sonu Mochi @ Sonu had sent weapons and bullets
in a sack for Ravi Yadav @ Amit Ji @ Ravi Kumar
Yadav (A-2) and Gulab Kumar Yadav (A-1). On
opening the sack, he saw that the sack had 02 black24
colored black arms and a pouch of bullets. After
checking those weapons, Gulab Kumar Yadav (A-1)
took the same. On that day, Gulab Kumar Yadav (A-
1) took those weapons to his house. In his
statement, he also disclosed that Santosh Yadav
Tiger (A-5) was a Sub Zonal Commander of
Balumath Area of PLFI, a militant organization in
2018. Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav @
Rabi Yadav (A-2) and Gulab Kumar Yadav (A-1) were
also recruited in the PLFI in the year 2018 by
Santosh Yadav (A-5). In December 2018, Gulab
Kumar Yadav (A-1). son of Jugesh Yadav, resident
village Chani, PS Lawalong, Chatra and his
associates were arrested by Balumath Police in
forest area of Balumath and 02 foreign made
weapons were recovered from their possession. In
his statement, P-2 also disclosed that these 02
foreign made weapons were brought by Suresh
Yadav Sirish Yadav (A-6), son of Bilas Yadav,
resident of village Chani, Post-Lawalong, Lawalong
District-Chatra Jharkhand from the Commander of
CPI (Magist). Errorst organization, namely Pramjeet
Mochi e Sonu Mochi Sonu, son of Basudev Mochi,
resident of Village Kadeh, Police Station Lawalone.
District Chatra Gulab Kumar Yadav (A-1) had
received these weapons in front of him from Suresh
Yadav @Sirish Yadav (A-6).
17.15 Role and activities of offences established
against Suresh Yadav @ Sirish Yadav S/o Bilash
Yadav A-6):
Therefore, as per the averment made hereinabove/
in the pre-paragraphs, it is established that Suresh
Yadav Sirish Yadav A-6 being over ground worker
&& informer of CPI (Maoist), was an associate of
accused Pramjeet Mochi @ Sonu Mochi Sanu (A-7).
He used to facilitate Pramjeet Mochi @ Sonu Mochi
@ Sonu by providing him logistic support from time
to time since 2014, when Pramjeet Mochi was Zonal
Commander of CPI (Maoist) Later on, Pramjeet25
Mochi @ Sonu Mochi Sonu left CPI (Maoist) and
constituted his own organisation i.e “Maowadi-2” In
August 2018, A-6 took delivery of two foreign made
rifles and ammunition from accused Pramjeet Mochi
Sonu Mochi Sonu (A-7) and delivered those weapons
to accused Gulab Kumar Yadav (A-1) for using them
to carry out militant/naxalite activities by Gulab
Kumar Yadav (A-1) and Rami Yadav @Amit Ji @ Ravi
Kumar Yadav (A-2). Those weapons were being used
by accused Gulab Kumar Yadav (A-1), Ravi Yadav @
Amit Ji @ Ravi Kumar Yadav @ Rabi Yadav (A-2),
Rakesh Kumar Paswan Aryan Ji (A-3) and Pawan
Kumar Yadav (A- 4) for carrying out PLFI activities in
Balumath area. Therefore, it is established that
Suresh Yadav Sirish Yadav (A-6), by becoming over
ground worker/informer/member of terrorist
organization of CPI (Maoist), proscribed by
Government of India/Jharkhand, assisted in
strengthening of CPI (Maoist) and indulged in
criminal conspiracy along with others namely A-1,
A-2 & A-7. Thereby accused Suresh Yadav Sirish
Yadav (4-6) committed offences under sections (i)
1208 r/w 384, 385, 386 & 387 of the IPC, 1860,
sections 17, 188 & 20 of the UA(P) Act, 1967,
Section 25 (1A), 26 & 29 of Arms Act, 1959 and
sections 17 of CLA Act, 1908 (ii) Sections 18 & 23 of
the UA(P) Act, 1967 (iii) Section 29 of the Arms Act,
1959 (iv) Sections 17 (i) & (ii) of CLA Act, 1908.
41. It is evident from the perusal of charge-sheet that NIA
filed first supplementary charge sheet no. 01/2020 dated
14.02.2020 against Suresh Yadav (A6) and other seven accused
persons u/s 120B r/w 384, 385, 386 and 387 IPC, 1860,
section 25(1-A), 26 and 29 of Arms Act, 1959 and u/s 17 of
CLA Act, 1908, section 17, 18, 18B, 20 and 23 of the UA(P) Act.
After obtaining Sanction for prosecution in respect of accused
26
persons A1, A2, A3, A-4. A-5, A-6 and A-7 for commission of
offences under UA(P) Act, 1967 (Under sections 17, 18, 18B, 20
& 23 of the UA(P) Act, 1967) from the Competent Authority vide
MHA, New Delhi Order dated 13.02.2020. Further, Sanction for
prosecution in respect of accused persons A-1, A2, A 3, A-4, A-
5 and A-6 for commission of offences under Arms Act, 1959
(Under sections 25(1A), 25(1AA), 26 & 29 of Arms Act, 1959 has
been obtained from the Deputy Commissioner-cum District
Magistrate, Latehar, Jharkhand.
42. There is allegation against the petitioner Suresh Yadav @
Sirish Yadav A 6 that being over ground worker & informer of
CPI (Maoist), he was an associate of accused Pramjeet Mochi @
Sonu Mochi Sonu (A-7) He used to facilitate Pramjeet Mochi @
Sonu Mochi @ Sonu by providing him logistic support from time
to time since 2014, when Pramjeet Mochi was Zonal
Commander of CPI (Maoist). Later on, Pramjeet Mochi @ Sonu
Mochi @Sonu left CPI (Maoist) and constituted his own
organisation i.e “Maowadi 2”. In August 2018, A-6 Suresh
Yadav @ Sirish Yadav took delivery of two foreign made rifles
and ammunition from accused Pramjeet Mochi @ Sonu Mochi @
Sonu (A-7) and delivered those weapons to accused Gulab
Kumar Yadav (A-1) for using them to carry out militant/naxalite
activities by Gulab Kumar Yadav (A-1) and Ravi Yadav Amit Ji
@ Ravi Kumar Yadav (A 2). Those weapons were being used by
accused Gulab Kumar Yadav (A-1), Ravi Yadav @Amit Ji @ Ravi
27
Kumar Yadav @ Rabi Yadav (A-2). Rakesh Kumar Paswan @
Aryan Ji (A-3) and Pawan Kumar Yadav (A 4) for carrying out
PLFI activities in Balumath area Therefore, it is established that
Suresh Yadav @ Sirish Yadav (A-6). by becoming over ground
worker/informer/member of terrorist organization of CPI
(Maoist), proscribed by Government of India/Jharkhand,
assisted in strengthening of CPI (Maoist)and indulged in
criminal conspiracy along with others namely A-1, A-2 & A-7.
43. It is further evident that during investigation, statements
of Protected witnesses P1 and P-2 were recorded u/s 164 of
Cr.P.C. In the statement of Protected Witness 1, it is stated that
accused Santosh Yadav @ Tiger (A 5) had joined the CPI
(Maoist) militant organization in 2003 at the cadre level but in
2007 he left the CPI (Maoist) and joined the PLFI, a terrorist
organization In December 2018, Gulab Kumar Yadav (A-1), and
his other associates of PLFI were arrested by Balumath Police
from the Titir Mahua forest area of Balubhang and 02 foreign
made weapons were seized from their possession. Rajesh Yadav
@ Kailu Yadav had told him that these weapons were given to
Ravi Yadav @ Amit Ji Ravi Kumar Yadav @Rabi Yadav (A-2) and
Gulab Kumar Yadav (A-1) by Pramjeet Mochi @ Sonu Mochi @
Sonu (A-7) through Suresh Yadav @ Sirish Yadav (A6). Rajesh
Yadav @Kailu Yadav further informed him that Suresh Yadav @
Sinish Yadav (A-6) had given these foreign made weapons to
Gulab Kumar Yadav (A 1) in his presence and he had seen the
28
weapons from his own eyes Suresh Yadav @ Sirish Yadav (A 6)
and Pramjeet Mochi @ Sonu Mochi @ Sonu (A-7) have a very
close friendship and Suresh Yadav @ Sirish Yadav (A-6) used to
work as informer for Pramjeet Mochi @Sonu Mochi @ Sonu (A-
7).
44. P1 further disclosed that Ravi Yadav Amit Ravi Kumar
Yadav Raha Yadav (A 2) and Gulab kumar Yadav (A1) had
worked for Maoist Pramjeet Mochi Sonu Mochi Sanu (A 7) in
CPI (Maoist), a terrorist organization. from 2014 to 2016 before
joining FLFI through Santosh Yadav Tiger (A 5) and after
sometime they also inducted Pawan Kumar Yadav (A4), and
Rakesh Kumar Paswan Aryan Ji in PLFI through Santosh
Vadas Tiger (A-5) Santosh Yadav Tiger (A 5), Gulab Kumar
Yadav (A-1). Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav @ Rabi
Yadav (A 2) Pawan Kumar Yadav (A 4) and Rakesh Kumar
Paswan @ Aryan Ji (A-3) used to carry these weapons with
them for extortion of levy from the contractors of the area who
were engaged in construction works.
45. In the statement of Protected Witness 2, it has come that
accused Santosh Yadav @Tiger (A-5) is his cousin and he had
joined militant organization CPI (Maoist) in 2003 at a cadre
level. But in 2007, he left the CPI (Maoist). Further, he revealed
that in 2014, he and Suresh Yadav Sirish Yadav (A 6) were
taken by Ravi Yadav @ Amit Ji @ Ravi Kumar Yadav (A 21) to
Hariharganj Bihar where they met Pramjeet Mochi @ Sonu
29
Mochi @ Sonu In August 2018, he and Gulab kumar Yadav (A-
1) went at Parsahi Talab village Chan, on the call of Suresh
Yadav Sirish Yadav, where Pramjeet Mochi @ Sonu Mochi @
Sonu had sent weapons and bullets in a sack for Ravi Yadav @
Amit Ji @ Ravi Kumar Yadav (A 2) and Gulab Kumar Yadav (A-
1). On opening the sack, he saw that the sack had 02 black
colored black arms and a pouch of bullets After checking those
weapons. Gulabi Kumar Yadav (A-1) took the same. On that day
Gulab Kumar Yadav (A-1) took those weapons to his house.
46. In his statement, he also disclosed that Santosh Yadav
Tiger (A-5) was a Sub Zonal Commander of Balumath Area of
PLFI a militant organization in 2018. Ravi Yadav @ Amit Ji @
Ravi Kumar Yadav Rabi Yadav (A-2) and Gulab Kumar Yadav
(A-1) were also recruited in the PLFI in the year 2018 by
Santosh Yadav (A-5) In December 2018, Gulab Kumar Yadav (A
11) and his associates were arrested by Balumath Police in
forest area of Balumath and 02 foreign made weapons were
recovered from their possession In his statement, P-2 also
disclosed that these 02 foreign made weapons were brought by
the appellant Suresh Yadav @Sinish Yadav (A-6), from the
Commander of CPI (Maoist), terrorist organization, namely
Pramjeet Mochi @ Sonu Mochi @ Sonu. Gulab Kumar Yadav (A-
1) had received these weapons in front of him from Suresh
Yadav @Sirish Yadav (A-6).
30
47. Further, the CDR Analysis of the mobile phone of the
appellant/accused also revealed that the appellant/accused
was well connected with other co-accused persons .The dates,
time of the calls and tower location of the petitioner and
aforesaid accused persons corroborated the aforesaid facts of
the investigation.
48. The case has also been supported by the deposition of
independent witnesses cited as protected witnesses whose
statements were recorded under section 161 and 164 of Cr P.C.
49. Therefore, prima facie it appears that the appellant
Suresh Yadav Sirish Yadav (A-6), by becoming
worker/informer/member over ground terrorist of organization
of CPI (Maoist), proscribed by Government of India/Jharkhand,
assisted in strengthening of CPI (Maoist) and indulged in
criminal conspiracy along with others namely A- 1, A-2 and A-
7.
50. Thus, prima-facie appears from the content of the charge-
sheet that there is prosecutable evidence against the appellant
which is supported by documentary as well as oral evidence of
the witnesses of chargesheet.
51. The learned counsel for the appellant has emphatically
contended that if the period of custody of the appellant will be
taken into consideration, same is in the teeth of Article 21 of
the Constitution of India, hence appellant may enlarge to
privilege of bail.
31
52. In the context of aforesaid this Court is of view that there
is no quarrel about the settled position of law that Article 21 of
the Constitution of India provides for protecting the
fundamental right of liberty but that is to be assessed by
carving out the balance in enforcing the law and order and
merely because the custody is there, the availability of other
cogent evidence which prima facie indicates the involvement of
accused/appellant in supply of Arms to the proscribed
organization cannot be ignored.
53. Therefore, mere delay in trial pertaining to grave offences
as one involved in the instant case cannot be used as a ground
to grant bail reference in this regard may be made to the
judgment rendered by the Hon’ble Apex Court in the case of
Gurwinder Singh v. State of Punjab, (supra). For ready
reference the relevant paragraph is being quoted as under:
46. As already discussed, the material available on
record indicates the involvement of the appellant in
furtherance of terrorist activities backed by members
of banned terrorist organisation involving exchange
of large quantum of money through different
channels which needs to be deciphered and
therefore in such a scenario if the appellant is
released on bail there is every likelihood that he will
influence the key witnesses of the case which might
hamper the process of justice. Therefore, mere delay
in trial pertaining to grave offences as one involved
in the instant case cannot be used as a ground to
grant bail. Hence, the aforesaid argument on behalf
of the appellant cannot be accepted.
32
54. Further, in the case of Shoma Kanti Sen v. State of
Maharashtra, (2024) 6 SCC 591 the Hon’ble Apex Court has
observed that any form of deprival of liberty results in breach of
Article 21 of the Constitution of India and must be justified on
the ground of being reasonable, following a just and fair
procedure and such deprival must be proportionate in the facts
of a given case, for ready reference the relevant paragraph of
the aforesaid judgment is being quoted as under:
“46. Pre-conviction detention is necessary to collect
evidence (at the investigation stage), to maintain
purity in the course of trial and also to prevent an
accused from being fugitive from justice. Such
detention is also necessary to prevent further
commission of offence by the same accused.
Depending on gravity and seriousness of the offence
alleged to have been committed by an accused,
detention before conclusion of trial at the
investigation and post charge-sheet stage has the
sanction of law broadly on these reasonings. But any
form of deprival of liberty results in breach of Article
21 of the Constitution of India and must be justified
on the ground of being reasonable, following a just
and fair procedure and such deprival must be
proportionate in the facts of a given case. These
would be the overarching principles which the law
courts would have to apply while testing
prosecution’s plea of pre-trial detention, both at
investigation and post charge-sheet stage.”
55. Thus, it is settled proposition of law that any form of
deprival of liberty must be justified on the ground of being
reasonable, following a just and fair procedure. In the instant
case as we discussed herein above that prima facie the
33
culpability of the appellant/ accused has been established on
the basis investigation culminated in to charge-sheet and
further the protected witnesses particularly P-1 and P-2 has
corroborated the prosecution case and further the trial of the
instant case is continuing wherein about 31 charge-sheeted
witnesses have already been examined, therefore in the instant
case, it appears that all the due procedure has been followed
and taking in to consideration the reasonable ground, arrest
has been made.
56. Since the learned counsel for the appellant has relied
upon the judgment of K.A. Najeeb (supra), so as to interfere
with the impugned order, therefore, this Court deems it fit and
proper to going through the judgment as referred by learned
counsel for the appellant.
57. The Appellant’s counsel has relied upon the case of K.A.
Najeeb (supra) to back its contention that the appellant has
been in jail in the instant case since 2019 which is contrary to
law laid down in the aforesaid case. While this argument may
appear compelling at first glance, it lacks depth and substance.
58. In K.A. Najeeb’s (supra), the Hon’ble Apex Court was
confronted with a circumstance wherein except the respondent-
accused, other co- accused had already undergone trial and
were sentenced to imprisonment of not exceeding eight years
therefore the Hon’ble Apex Court while considering the fact that
since the respondent-accused had already served portion of the
34
maximum imprisonment i.e., more than five years, hence not
interfered in order granting bail.
59. Further, in KA Najeeb’s case the trial of the respondent-
accused was severed from the other co-accused owing to his
absconding and he was traced back in 2015 and was being
separately tried thereafter and the NIA had filed a long list of
witnesses that were left to be examined with reference to the
said accused.
60. 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.
61. But here in the instant case, as per the counter affidavit
60 witnesses are there and out of 60 witnesses,31 witnesses
have already been examined. Further in the instant case direct
nexus has been shown by the charge-sheet and from the
relevant part of charge-sheet as quoted hereinabove prima facie
appears that the present appellant was involved in the alleged
crime of supply of Arms to the proscribed organisation which
were used by the member of the extremist organisation in the
various crimes.
35
62. Thus, this Court is of the view that in the facts and
circumstances the judgment rendered by the Hon’ble Apex
court in Union of India Vs. K.A. Najeeb(supra) will not be
applicable in fact and circumstances of instant case.
63. Further it is settled proposition of law that the
applicability of the judgment depends upon the facts and
circumstances of each and every case and there cannot be any
universal application of the judgment rather each judgment is
to be decided on the basis of fact of each case. Reference in this
regard may be taken from the judgment as rendered by the
Hon’ble Supreme Court in Dr. Subramanian Swamy vs. State
of Tamil Nadu & Ors. reported in (2014) 5 SCC 75 for ready
reference the relevant paragraph is being quoted herein under :
“47. It is a settled legal proposition that the ratio of
any decision must be understood in the background
of the facts of that case and the case is only an
authority for what it actually decides, and not what
logically follows from it. “The court should not place
reliance on decisions without discussing as to how
the factual situation fits in with the fact situation of
the decision on which reliance is placed.”
64. Further, it needs to refer herein that Hon’ble Apex Court
in the case of Jayendra Saraswathi Swamigal v. State of
T.N. (2005) 2 SCC 13 has observed that the considerations
which normally weigh with the court in granting bail in non-
bailable offences, basically they are — the nature and
seriousness of the offence; the character of the evidence;
circumstances which are peculiar to the accused; a reasonable
36
possibility of the presence of the accused not being secured at
the trial; reasonable apprehension of witnesses being tampered
with; the larger interest of the public or the State and other
similar factors which may be relevant in the facts and
circumstances of the case. For ready reference the relevant
paragraph of the aforesaid judgment is being quoted as under:
“16. … The considerations which normally weigh with the court
in granting bail in non-bailable offences have been explained by
this Court in State v. Jagjit Singh [State v. Jagjit Singh, 1960
SCC OnLine SC 2 : (1962) 3 SCR 622 : AIR 1962 SC 253] and
Gurcharan Singh v. State (UT of Delhi) [Gurcharan Singh v.
State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41]
and basically they are — the nature and seriousness of the
offence; the character of the evidence; circumstances which are
peculiar to the accused; a reasonable possibility of the presence
of the accused not being secured at the trial; reasonable
apprehension of witnesses being tampered with; the larger
interest of the public or the State and other similar factors which
may be relevant in the facts and circumstances of the case.” ‘”
Conclusion
65. Thus, on the basis of the aforesaid discussion as made
hereinabove, it appears that during investigation it has come
that there is direct and specific allegation against petitioner, he
appears to have provided logistic support to top brass of PLFI.
66. Further, the charge sheet reveals that the
appellant/accused being the over ground worker & Informer of
CPI (Maoist), was an associate of accused Pramjeet Mochi (A-7)
and used to facilitate him by providing him logistic support
from time to time since 2014, when Pramjeet Mochi was Zonal
Commander of CPI (Maoist). It has also revealed that in August
37
2018, A-6 took delivery of two foreign made rifles and
ammunition from accused Pramjeet Mochi @ Sonu Mochi @
Sonu (A-7) and delivered those weapons to accused Gulab
Kumar Yadav (A-1) for using them to carry out
militant/Naxalite activities by Gulab Komar Yadav (A-1) and
Ravi Yadav Amit Ji @ Ravi Kumar Yadav (A-2). Hence
considering the allegation against this appellant which is of a
very serious nature and there are evidences collected during
investigation to prove the said charge as has been indicated
herein above.
67. This Court, on the basis of the facts and coming to the
settled position of law as referred hereinabove and the
judgment rendered by the Hon’ble Apex Court in the case of
Zahoor Ahmad Shah Watali (supra), is of the view that it
cannot be said that the allegation levelled against the
appellants is prima facie untrue.
68. As such this Court is of the view by going through
imputation as has found in course of investigation that the
complicity of the appellant in the alleged crime cannot be
denied. It is thus evident that this Court on the aforesaid
allegation cannot come to the conclusion that whatever has
come in course of investigation against the appellant is said to
be prima facie untrue rather this Court is of the view that the
allegations are sufficient to come to the conclusion that the
allegation is prima facie true.
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69. The factual aspect of the present case which has been
emphasised by the learned counsel for the appellant that so far
as the status of trial is concerned 31 witnesses out of 60
witnesses have been examined.
70. It has been submitted by learned counsel appearing for
the NIA that the trial is to be expedited now since the learned
Special Judge is only looking after the special cases including
NIA.
71. Further, the protected witnesses are to be examined and
as has been submitted on behalf of the learned counsel for the
NIA that the witnesses are examined and efforts will be taken
for the examination of the witnesses on day-to-day basis.
72. Therefore, this Court is of the view that it will not to be
just and proper to interfere with the impugned order. This
Court is also of the view while coming to the aforesaid
conclusion that as per the chargesheet the specific
attributability has been casted upon the petitioner regarding
the commission of offence said to attract the criminal offence
under UA(P) Act.
73. In view of the foregoing discussions, we find no illegality
in the impugned order dated 02.09.2023 passed in Misc.
Criminal Application No. 2021 of 2023 by learned Additional
Judicial Commissioner-XVI-cum Special Judge, NIA, Ranchi in
connection with Special NIA Case No. 01/2019 (RC
CaseNo.13/2019/NIA/DLI) arising out of Balumath P.S. Case
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No. 225 of 2018, as such, we are of the view that the instant
appeal lacks merit, hence, the same is hereby dismissed.
74. We make it clear that the prima facie findings recorded in
this judgment are only for considering the prayer for bail of the
appellant. The reasons are confined to the prayer for bail of the
appellant. The same will have no bearing on the trial of the case
of the appellant and co-accused.
I agree (Sujit Narayan Prasad, J.)
(Navneet Kumar, J.) (Navneet Kumar, J.)
Birendra/ A.F.R.
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