Prabhu Prasad Sahu vs State of Jharkhand

Heard learned senior counsel for the appellant and learned counsel for the N.I.A.

This appeal, filed under Section 21(4) of the National Investigation Agency Act, is directed against the order dated 09.03.2018, passed by the

learned Judicial Commissioner-cum-Special Judge N.I.A., Ranchi, in Misc. Crim. Application No.129 of 2018, filed in Special (N.I.A.) Case No.02 of

2017, whereby, the regular bail application of the appellant has been dismissed by the Court below.Â

The appellant has been made accused for the offences under Sections 120-B, 116, 121-A, 124-A, 386, 411 and 506 of the Indian Penal Code and

Sections 17, 19, 20, 21, 23, 38, 39 and 40 of Unlawful Activities (Prevention) Act, as well as Section 25(1-B) of the Arms Act.

The impugned order passed by the Court below, as well as the F.I.R. in the present case, show that two persons namely, Buredi Narayana

and                     Moola Satyanarayana Reddy @ Sanjay, were apprehended by the police upon a secret

information, near Ranchi Railway Station, while they were going to board a train for Telengana. From the possession of Moola Satyanarayana Reddy

Rs.20,10,500/- cash and 473.9 gms. of gold and other incriminating articles were recovered, whereas from the possession of Buredi Narayana

Rs.5,04,600/- cash was recovered. They disclosed to the police that Buredi Narayana is the own younger brother of the one Sudhakar, who is the

member of Central Committee of CPI (M), a banned extremist organization, and Moola Satyanarayana Reddy is the business associate of Sudhakar.

They also disclosed that they had gone to the forests in Gumla upon call by Sudhakar, where they stayed with the extremists and Sudhakar had given

them the money for the purpose of investment, and they were returning to Telangana with the money. They also disclosed that the money recovered

from them were collected in levy from the contractors and businessmen by the extremists. The appellant was initially not made accused in the case,

but subsequently, during investigation this appellant has also been made accused in the case on the basis of the confessional statements of both the

aforesaid apprehended co-accused persons, and subsequently the appellant was also nabbed by the police and on the basis of the disclosure made by

the appellant, there was recovery of arms, ammunitions, Maoist literatures and other incriminating articles, for which a separate case was instituted

against the appellant. It is the case of the appellant that he has been granted bail in the said case of recovery. Subsequently, it was also found that the

appellant was actually a middleman between the Maoists, contractors and businessmen and he was in close contact with the extremists and helping

them in collecting the levy and also making negotiations for levy from the businessmen and the contractors and accordingly, the appellant has been

made accused in the present case. The prayer for bail of the appellant was rejected by the learned Special Judge by order dated 09.03.2018, against

which the present appeal has been filed.

Learned senior counsel for the appellant firstly submitted that the appellant has been falsely implicated in this case only on the basis of the

confessional statement of the co-accused and the appellant has been granted bail in the other case relating to recovery of arms, ammunitions and other

incriminating articles. Learned counsel submitted that in the present case the appellant has been made accused only on the basis of the confessional

statement of the co-accused and accordingly, he may be granted bail in the present case also.

Learned counsel for the N.I.A., on the other hand, has drawn our attention towards the case-diary and the charge-sheet, in which several

incriminating materials have come against this appellant also. It is submitted by the learned counsel for N.I.A. that the appellant has been found to be

actively involved and in close connection with the said Sudhakar, the veteran Maoist extremist and the other extremists as well, and he was collecting

the levy for the Maoist extremists, providing necessary help to them and even harboring them and making arrangements for meeting between

extremists and the persons from whom the demands of levy are made. It was also found that the wife of Sudhakar, who herself is a veteran Maoist

extremist was also in close contact with the appellant, who had also stayed at the house of the appellant and the appellant had also arranged for her

travel. Learned counsel accordingly, submitted that there are materials to show the prima facie involvement of the appellant in the offence. Learned

counsel has drawn our attention towards Section 43-D (5) of the Unlawful Activities (Prevention) Act, 1967 which reads as follows :-

“43-D(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall,

if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for

such release:Â Â

 Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made

under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie

true.â€​

 Placing reliance on this provision, learned counsel submitted that since there are materials against the appellant to show his prima facie involvement

in the offence, there is no occasion for releasing him on bail in view of proviso to Section 43-D (5)Â of the Unlawful Activities (Preventions) Act.Â

7. In reply, learned senior counsel for the appellant has placed reliance upon a decision of Hon’ble Supreme Court in Ranjitsing Brahmajeetsing

Sharma Vs. State of Maharashtra and Anr., reported in (2005) 5 SCC 294, which relates to the bail matter arising out of Maharashtra Control of

Organised Crime Act (MCOCA), interpreting Section 21(4) of MCOCA, which reads as follows :-

“21.(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released

on bail or on his own bond, unless -Â

(a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and

(b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of

such offence and that he is not likely to commit any offence while on bail.â€​

 Interpreting Section 21(4) of MCOCA, the Hon’ble Apex Court has laid down the law as follows :-

“44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant

for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the

applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the

applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed

that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before

commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail.

However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of

an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the

nature and manner in which he is alleged to have committed the offence.

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.â€​

    Learned counsel submitted that in view of the law laid down by the Hon’ble Supreme Court, in a similar matter relating to MCOCA,

Section 43-D(5) of Unlawful Activities (Prevention) Act shall not be a bar in granting bail to the appellant, even if prima facie offence may be made

out.Â

We are of the considered view that the decision relied upon by learned senior counsel for the appellant is not at all applicable to the facts of this

case. The present case does not arise out of a MCOCA, and Sections 43-D(5) of Unlawful Activities (Prevention) Act as well as Section 21(4) of the

MCOCA are not at all in pari materia. Section 21(4) of the MCOCA says that the accused may be granted bail by the Court, if the Court is satisfied

that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail,

whereas Proviso to Section 43-D(5) of Unlawful Activities (Prevention) Act, is a clear bar in granting bail to the accused, if there are reasonable

materials before the Court for believing that accusation against the accused is prima facie true.

The materials brought to our notice by learned counsel for the N.I.A., clearly show that the appellant is in close association with Maoists of the top

rank, and he works for them for extortion of levy from the contractors and businessmen, harbors them and even the wife of the top Maoists, who

herself is a known Maoist extremist, is also in close contact with the appellant. We are of the considered view that accusation of the appellant appears

to be prima facie true and in view of Proviso to Section 43-D(5), the appellant cannot be released on bail. Accordingly, the prayer for bail of the

appellant stands rejected.Â

Needless to clarify that the our satisfaction about the prima facie accusation against the appellant is only tentative in nature, which shall not have

any bearing on the merits of the case and the Trial Court shall be free to decide the case on the basis of evidence adduced during the trial, without in

any manner being prejudiced by this order.

We do not see any illegality in the impugned order dated 09.03.2018, passed by the learned Judicial Commissioner-cum-Special Judge N.I.A.,

Ranchi, in Misc. Crim. Application No.129 of 2018 filed in Special (N.I.A.) Case No.02 of 2017, rejecting the prayer for bail of the appellant, worth

interference by this Court.Â

There is no merit in this appeal, and the same is accordingly, dismissed.