Tarun Kumar Alias Tarun Vs the Union of India through National Investigation Agency

IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (D.B.) No.792 of 2024

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Tarun Kumar @ Tarun, aged about 31 years, S/o Pradyuman Sharma @ Saket @ Kundan R/o Village Rustampur, PO & PS Hulasganj, District-Jahanabad, Bihar. … … Appellant Versus The Union of India through National Investigation Agency … … 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. Shailesh Poddar, Advocate For the Respondent : Mr. Amit Kumar Das, Advocate : Mr. Saurav Kumar, Advocate ------

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Order No. 05 / Dated 14^th November, 2024

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Per Sujit Narayan Prasad, J.

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1. The instant appeal preferred under Section 21(4) of the National Investigation Agency Act, 2008 is directed against the order dated 15.04.2024 passed by learned AJCXVI-cum-Spl. Judge, NIA, Ranchi in Misc. Criminal Application 214 of 2024 in connection with Spl. (NIA) Case No.01 of 2022 arising out of R.C. Case No.05 of 2021 /NIA/RNC, registered for the offence under Sections 120B, 386 and 411 of the Indian Penal Code (I.P.C.) and under Section 13,17,18,20, 38 & 39 of the Unlawful Activities (Prevention) Act 1967, whereby and whereunder the prayer for regular bail of the appellant has been rejected.

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Factual Matrix

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2. The brief facts of the case as per the pleading made in the Memo of Appeal, reads hereunder as :-

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The case of prosecution in brief is that the Central Government received information that CPI (Maoist), a banned proscribed terrorist organization, cadres prominently Pradyuman Sharma along with Yogendra Ravidas, Nagendra Giri (armed cadre of CPI(Maoist)), Abhinav, Dhananjay Paswan (arms supplier of CPI(Maoist)) and others are conspiring to revive CPI (Maoist) organization in Magadh Zone. They have conspired to raise funds for procurement of arms and ammunitions and training cadres in IEDs and to liaise with incarcerated naxals, OGWS in various jails for commission terrorist activities.

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The Government of India, Ministry of Home Affairs vide order F. No. 11011 / 79 / 2021 / NIA dated 27.12.2021 issued as per provision of Section 6(5) of the NIA Act 2008, directed the NIA to register the case as FIR No. 5/2021/NIA /RNC dated 30.12.21 at PS NIA Ranchi under various Sections of Unlawful Activities (Prevention) Act 1967(UA(P) Act, 1967).

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3. The Appellant was arrested by NIA in the instant case on 25.07.2022. Thereafter, the appellant had preferred a petition under section 167(2) Cr.P.C before the NIA Special Court, Ranchi but the same has been rejected vide order dated 28.10.2022, against which the present

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Appellant has preferred Criminal Appeal (DB) No. 1337 of 2022 before this Court which is pending for adjudication.

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4. On 20.01.2023 charge-sheet was submitted against 02 accused persons, including present appellant namely Tarun Kumar @ Tarun (A-1) and further on 28.06.2023, the 1^st supplementary chargesheet was submitted against the FIR named accused persons against Abhinav (A-3) and on 18.12.2023, 2^nd supplementary chargesheet was submitted against the two arraigned accused persons namely Anand Paswan(A-5) and Vijay Kumar Arya (A-11). Further investigation, is continued in the instant case.

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5. Consequently, the above-named appellant had preferred the regular bail application vide Misc. Cr. Application No. 214 of 2024 before the NIA Special Court, Ranchi for bail but the same has been rejected vide order dated 15.04.2024 against which the present appeal has been filed.

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Submission of the Learned Counsel for the Appellant:

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6. Learned counsel for the appellant has assailed the impugned order on the following grounds: -

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(i) The NIA has not established through its investigation as to what terrorist act was committed by the appellant and thus no offence under Unlawful Activities (Prevention) Act can be said to be made out.

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(ii) The learned court below failed to appreciate and consider that the appellant has no any nexus with extremist organization, thus the appellant cannot be brought within the ambit and scope of Act, 1967.

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(iii) Appellant is quite unknown about the alleged offence and he has got no connection with said crime and he was not named in the FIR. Further No incriminating articles have been recovered from the possession of the appellant.

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(iv) Cause of action for institution of the case against the petitioner is procurement of arms and ammunition, imparting training of cadres in IED fabrication and to liaise with the incarcerated Naxals, over ground workers in various jails for commission of terrorist activities but that aforesaid baseless reasons advanced by the prosecution have not been sincerely investigated and the charge-sheet has been submitted only on the imaginary and hypothetical allegations.

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(v) To buttress his argument learned counsel for the petitioner has placed his reliance upon the judgment of High court of Delhi rendered in the case of Asif Iqbal Tanha versus State of NCT of Delhi 2021 SCC OnLine Del 3253 wherein it

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has been stated that where provision of law engrafting serious consequences is vague such provisions must be construed narrowly in order to bring it within the constitutional framework and must be applied in a just and fair way, lest it unjustly ropes within its ambit persons whom the Legislature never intended to punish. Where the court finds that an act or omission is adequately addressed and dealt with by the ordinary penal law of the land, the court must not countenance a state agency “crying wolf”.

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(vi) Appellant is in custody in the instant case since 25.7.2022 i.e. almost 2 years and 3 months and there is no chance of conclusion of the trial in near future.

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(vii) 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.

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(viii) In support of his submission, learned counsel for the appellant has relied upon the Judgment rendered by the Hon’ble Apex Court in Vernon Vs. The State of Maharashtra & Anr.[2023

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SCC OnLine SC 885 particularly its paragraphs

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no. 24,37 and 38.

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7. Learned counsel for the appellant, on the aforesaid premise, has submitted that the learned court ought to have considered that aspect of the matter, while considering the prayer for regular bail, but having not been considered, therefore, the impugned orders need to be interfered with.

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Submission of the Learned Counsel for the Respondent NIA:

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8. Per contra, Mr. Amit Kumar Das, learned counsel appearing for the National Investigation Agency, has vehemently opposed the prayer by defending the impugned order dated 15.04.2024 on the following grounds:

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(i) It is evident from the charge-sheet that the present appellant has worked in favour of the proscribed organisation as such provisions of UA(P) Act 1967 will be applicable against the appellant.

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(ii) Further the proviso as stipulated under Section 43D(5) of UA(P) Act put a complete embargo against release of the accused persons, if prima facie case is made out and allegation against the appellant is serious in nature.

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(iii) Appellant is charge-sheeted accused of this case u/s 16, 17, 18, 20, 38, 39 and 40 of the UA(P) Act, 1967. There is serious allegation against petitioner which is elaborated in para 17.14.01 and 17.14.02 of the chargesheet.

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(iv) In this case there is prima facie case made out against the appellant and chargesheet has been submitted in which cognizance has been taken and charges were also framed, hence, seeing the seriousness of the crime which is against sovereignty, unity, Integrity of the country, it is not fit case to enlarge the appellant on bail.

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(v) The appellant was actively participated in the conspiracy and raising funds for the CPI maoist and as part of the larger conspiracy he worked as channel between operatives of the CPI Maoist and other stakeholders of Magadh Zone in the state of Jharkhand and Bihar.

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(vi) He has written the demand letters for levy and forwarded the same to the local contractors knowing well that such fund will be used against country threatening to its unity, integrity security and sovereignty.

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(vii) There are several irrefutable and oral/ documentary evidence on record against

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petitioner, hence prayer for bail is not at all maintainable. Hon’ble High court of Jharkhand rejected appeal of the co-accused Pradyuman Sharma for default bail on similar grounds in criminal appeal (DB) no 1305/2022.

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(viii) Further, NIA has no reason and business to incriminate someone without unsound reason. In fact agency is duty bound to unearth the role of each and every accused in any given case. Name of petitioner emerged for an active involvement in crime for conspiracy to execution in raising funds for CPI Maoist, a proscribed terrorist organization for the sake of unlawful activities.

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(ix) There is ample evidence available on the case record oral and documentary evidence which establishes that prima facie case under section 120B of IPC substantively, section 120B r/w section 386 and 411 of the IPC and sections 13, 17, 18, 20, 38, 39 and 40 of the UA(P) Act is made out against petitioner.

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(x) The ratio of judgment relied upon by the learned counsel for the appellant as rendered by the High court of Delhi rendered in the case of Asif

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Iqbal Tanha versus State of NCT of Delhi , is not applicable in the instant case, reason being

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that in the aforesaid case, nature and background of the offence was different.

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9. It has been submitted based upon the averments of the counter affidavit wherein the reason has been assigned that the order impugned does not suffer from error, as such the impugned order requires no interference by this Court.

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Analysis

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10. 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.

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11. It is evident from the factual aspect that during investigation of the instant case, i.e., R.C. Case No.05 of 2021/NIA)/RNC, incriminating role of the appellant was surfaced and, as such, based upon evidence collected in course of investigation, the appellant was arraigned as accused in the instant criminal case and accordingly arrested on 25.07.2022.

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12. An application for prayer for bail has been preferred but, Learned Special Judge, on consideration of the aforesaid fact and considering the material available on record has agreed with the grounds taken by the

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investigating agency and consequently the application for bail has been rejected against which the instant appeal has been preferred.

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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).

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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, 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.

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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

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term which may extend to 2 years, and shall also be liable to fine.

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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.

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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) stands a person who is or continues to be a member of such association shall be liable to be punished.

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18. At this juncture, it will be purposeful to discuss the core of Section 43D(5) of the Act, 1967 which mandates that the person shall not be released on bail if the court is

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of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true apart from the other offences the appellant is accused of committing offences as stipulated under chapter IV and VI of UA(P) Act, 1967.

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19. The reason of making reference of the provision of Section 43D(5) of the Act that in course of investigation, the investigating agency has discovered the material against the appellant attracting the offence under various Sections of UA(P) Act. Since, this Court is considering the issue of bail based upon now also under the various sections of UA(P) Act and hence, the parameter which has been put under the provision of Section 43D(5) of the Act is also required to be considered.

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20. The requirement as stipulated under Section 43D(5) of the UA(P) Act, 1967 in the matter of grant of regular bail fell for consideration before the Hon'ble Apex Court in the case of National Investigation Agency Vrs. Zahoor

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Ahmad Shah Watali, reported in [(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

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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 :-

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“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

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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 nongrant of bail is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.

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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 16-82017 (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.

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26. Be it noted that the special provision, Section 43D 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 chargesheet and before the filing of the supplementary or

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final charge-sheet consequent to further investigation under Section 173(8) CrPC, until framing of the charges or after framing of the charges by the Court and recording of evidence of key witnesses, etc. However, once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge-sheet (report under Section 173 CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case.

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21. 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.

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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

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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 Maharashtra, reported in (2005) 5 SCC 294. For ready reference the following paragraph of the aforesaid Judgment is being quoted herein under:-

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“46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a

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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.”

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23. 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

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of the charge-sheet and other material gathered by the investigating agency during investigation.

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24. 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.

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25. Counter affidavit has been filed by the respondent wherein the charge-sheet dated 20.01.2023 has been appended as Annexure-A.

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26. It is evident from the counter affidavit that the appellant has been charge-sheeted accused (A-1) of the instant case.

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27. After investigation NIA submitted chargesheet against the appellant under section 120B r/w section 386 and 411 of the IPC and sections 13, 17, 18, 20, 38, 39 and 40 of the UA(P) Act, 1967.

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28. Accordingly, court of Spl. Judge, NIA took cognizance in charge-sheeted Sections and after supply of police paper, charge has been framed against the appellant and other co-accused persons.

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29. This Court, on appreciation of the rival submissions and in order to assess that any evidence prima facie

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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 counter affidavit.

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30. It is evident from the perusal of charge-sheet that NIA in his investigation found that cadre of the CPI (Maoist) hatched conspiracy with the help of the appellant which is mentioned in para 17.4.4, 17.4.5, 17.4.8, 17.4.9, 17.4.10 and 17.14.01 of the chargesheet. For ready reference the aforesaid paragraphs are being quoted herein under:-

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“ 17.4.4: Seizure of incriminating documents from the house of accused persons Tarun Kumar (A-1) and Pradyuman Sharma @ Saket @ Kundan @ Sudhansu @ Kunal Nakul @ Laden (A-2): During search on 12.02.2022 at the house of FIR named accused A-2 and arraigned accused A-1, incriminating documents / letters (diary) were seized. On 03.05.2022, the specimen hand writing of accused A-1 was obtained in presence of two independent witnesses and in this regard a proceeding has also been drawn. The specimen handwriting of accused A-1 and seized incriminating document (diary) was sent to Central Forensic Science Laboratory (CFSL), Kolkata (WB) for matching and obtaining expert opinion.------

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17.4.5 : On 07.09.2022 searches at five locations were carried out by NIA including the house of A-1, A-2 & A- 3. During the search, incriminating letters related to CPI(Maoist) were again seized and it is pertinent to mention here that, during that search arrested accused A - 3 was present at the house of A-1 & A-2 .

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17.4.8: Statement of Protected Witness "A" (Hereinafter referred to as " PW -"A") : - PW "A" stated in his statement that, during the year 2019 his

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company had taken a construction project. During the initial period, he was regularly threatened by the arrested accused persons i.e., A-1, A-2 and A-3, who were demanding levy on behalf of CPI (Maoist), a proscribed terrorist organization. Accordingly, due to regular threats (over VOIP calls), he was forced to pay the extortion money. PW-"A" stated in his statement that, he was directed by the accused A-2 to pay the extortion amount in the bank account provided to him. The details of the bank account number xxxxxxxx59680 of Ms. Nitu Devi in IDBI bank account of Bihta, Patna, Bihar was shared by A-1 on his WhatsApp number. PW-"A" stated that when he had asked about the owner of the bank account, it was stated by the A-1 and A-3 that, the above bank account belongs to his close associate i.e., absconding accused Chandan Kumar (A-4). Accordingly, on 08.10.2020 a sum of three lakh rupees were transferred in the above bank account. The above facts have been corroborated by the statements of other important witnesses and from the bank account statements of Ms. Nitu Devi and construction company. After this transaction, PW-"A" was not picking up the calls of A-1, A-2 and A-3. During investigation, it has also surfaced that during the first week of February 2022, a letter was received on the WhatsApp number of PW-"A", which was later shared with PW-"B". The letter was written by " Saket ". It is pertinent to mention here that, " Saket " is the alias name of the FIR named accused ( A-2 ) Further, it is also important to mention and clarify that the letter was actually written by accused A-1 in the name of A-2 . Thereafter, A-2 had sent the letter from his own mobile handset to PW-"A", which was also seized on 12.02.2022.

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17.4.9: Examination of Protected Witness "B"

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(Hereinafter referred as PW-"B"):- PW-B corroborated the statement of PW-"A". He also added few more facts and produced the copy of the demand letter, which was

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sent by accused A-1 on the WhatsApp number of PW"A". The image of the letter was seized on production order on 04.04.2022. PW-B also produced few incriminating voice clips of arrested FIR named accused A-2 which were received by him in connection with demand of extortion money. During the investigation, the incriminating voice clips between A-2 and PW –“B” and was seized on production order. Further, during the police remand of arrested accused A-2, the specimen voice clip of the accused A-2 was obtained in the presence of two witnesses. Further, the voice in question (seized incriminating voice clips) and the specimen voice of the arrested accused A-2 was sent to CFSL, New Delhi for matching and obtaining expert opinion and the same was received. 17.4.10: Statement of Protected Witness "C" (Hereinafter referred as PW"C"): - During investigation the name of PW- "C" has surfaced as a victim who had paid money to the accused persons A-1 , A-2, A-3 and A-4, as levy to the CPI(Maoist), a proscribed terrorist organization. During investigation PW- "C" was examined and during his examination he stated that he was regularly receiving threatening calls from (A - 1) (A - 2) and (A - 3) maximum on his WhatsApp number for paying levy to the CPI(Maoist). In support of his claim, he had produced few incriminating voice clips of accused A-3. During investigation the specimen voice of A-3 was voluntarily obtained in the presence of two independent witnesses. Further, the voice in question and the specimen voice were forwarded to CFSL, New Delhi for matching and obtaining expert opinion. Investigation also revealed that, PW- "C" was directed by the accused persons A-1, A-2 and A-3 to pay the levy and for the said purpose transferred the funds in the bank account number xxxxxxxx59680, in IDBI bank account of Bihta, Patna, Bihar, which belonged to Ms. Nitu Devi. On the direction of accused A-2, the details of bank account

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were shared by accused persons A-1 and A-3 on the WhatsApp number of PW-"C". Investigation has also revealed that the funds ie., approx. Six Lakhs Forty thousand rupees were transferred / deposited in the bank account of Ms. Nitu Devi. For transferring the funds, PW- "C" had used the assistance of his supervisor i.e., PW- "D" and approximately, two lakhs sixty-five thousand was transferred through the UPI number of PW- "D". To minimize the risk of suspicion, the funds were transferred in small amounts from the IDBI Bank, Koderma, Jharkhand. The above facts also get corroborated with the deposit slips, bank account statements of Ms. Nitu Devi and from the statements of independent witnesses.”

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17.14.01 Arrested Accused A-1 is associated with CPI Maoist a proscribed terrorist organisation declared by the government of India . For the cadres of CPI maoist he used to raise funds and also motivate ex-cadres of CPI maoist for the revival of the above organisation. He was party to the conspiracy in raising funds for the CPI maoist in the instant case. As a part of the larger conspiracy he worked as a conduit between the operatives of the CPI Maoist and other stakeholders of Magadh Zone in the state of Jharkhand and Bihar. He has written the demand letters for levy and forwarded the same to the local contractors knowing well that such fund will be used against country threatening its unity, integrity security and sovereignty. A-1 became member of CPI maoist and actively participated in the conspiracy and raising funds which was hatched among co-accused persons in raising funds for the CPI Maoist and on that basis petitioner Tarun Kumar A-1 has been charged for offences u/s 120B (substantively) section 120B r/w section 386 and 411 of the IPC and sections 13, 17, 18 , 20, 38, 39 and 40 of the UA(P) Act, 1967.

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31. During investigation, it has been revealed that the applicant is the adopted son (i.e., son of brother namely

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Pramod Sharma) of Pradyuman Sharma, who was the member of Special Area Committee of Bihar- Jharkhand Special Area Committee (BJSAC) the CPI (Maoist) and the appellant used to raise funds and motivate the ex-cadres of CPI (Maoist) for the revival of the above organization.

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32. Further, during the course of investigation on 12.02.2022, the house search, of FIR named accused Pradyuman Sharma was carried out. During the course of search, certain incriminating documents were found and seized in presence of the present appellant/accused i.e.. Tarun Kumar (A-1). It is also pertinent to mention herein that the incriminating letters, which were seized were related to raising funds, on behalf of CPI (Maoist).

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33. On the basis of the forensic examination report of CFSL, it has been alleged that, the seized incriminating letters pertaining to demand of levy on behest of proscribed terrorist organization CPI(Maoist) were written by the appellant Tarun Kumar (A-1).

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34. In this instant case, the role of present appellant / accused Tarun Kumar (A-1) surfaced for his active involvement in the crime from conspiracy to execution in raising funds for the CPI (Maoist), a proscribed terrorist organization, for the sake of un-lawful activities.

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35. It is revealed during the investigation that Ms Puja Kumari d/o- Pramod Sharma sister of Tarun Kumar A-1

¶122

23

¶123

and niece of FIR named accused Pradyuman Sharma is pursuing MBBS from Chettinad Medical college and Research institute, Chennai, Tamilnadu for the academic session 2017-22 extended up to 30.03.2023 as an intern. Huge funds were transferred in the bank account of Chettinad medical college and Research institute, Chennai, Tamilnadu through various bank accounts. During investigation it came to the notice that out of total fees amount of Rs.1,22,00,000/- which was paid to the college and most of the occasions the college fee was transferred/ paid by the family members of Ms Puja Kumari.

¶124

36. During scrutiny of the bank accounts of facilitators it has also surfaced that in almost all instances of transactions the transferred amount was credited in cash in the bank account of the facilitators on the same day or one or two days prior to the transactions. No documentation is available either with the facilitators or with the recipients for such transactions. Out of Rs.1,22,00,000/-, Rs.1,13,70,500/- is seized in the instant case which is mentioned in the chargesheet. 37. Further, the case has also been supported by the deposition of independent witnesses cited as protected witnesses A, B, C D, E, F whose statements were recorded under section 164 of Cr P.C.

¶125

24

¶126

38. 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.

¶127

39. Further, it appears from record that the appellant had a clear knowledge that CPI (Maoist) is a proscribed terrorist organization and involved in many terrorist acts across the State. Despite having such knowledge, he continued his nexus with the said terrorist organization and he acted in blatant contravention of laws and impair the safety and security of citizens and the State.

¶128

40. Thus, prima facie appears from the aforementioned paragraph of the charge-sheet and on the basis of available disclosure statement under section 164 Cr.P.C it is brought on record that the appellant was part of the criminal conspiracy hatched with association of other accused persons.

¶129

41. The learned counsel for the appellant has 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.

¶130

42. In the context of aforesaid this Court is of view that there is no quarrel about the settled position of law

¶131

25

¶132

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.

¶133

43. Further the learned counsel for the appellant has placed his reliance on the judgment rendered in Vernon Vs. The State of Maharashtra & Anr. (supra), wherein letters and statements, various literatures, books etc. have been referred to by the prosecution which have been claim to have recovered from the residences of the appellant of the said case and those literature mainly involve writings on extreme left-wing ideology including its application to India.

¶134

44. The Hon’ble Apex Court has found that, no evidence has been led by the agency which would implicate the appellant in terrorist acts and the other offences barring the letters on which emphasis has been laid by the agency. The Hon’ble Apex Court based upon the aforesaid fact has submitted that merely by writing a script cannot said to attract the penal offence of UAPA Act and thereby reached to the conclusion that the allegation cannot be said to be prima facie true.

¶135

26

¶136

45. But in the instant case direct nexus has been shown by the charge-sheet and from the relevant part of charge-sheet as quoted hereinabove it is evident that the appellant has been involved in the extortion of money from different businessmen in order to facilitate the proscribed banned organization. Hence the ratio of the aforesaid case cannot be applicable herein.

¶137

46. So far as the argument regarding reliance having been placed upon the judgment rendered by the Division Bench of Delhi High Court in the case of Asif Iqbal Tanha versus State of NCT of Delhi (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 accusation against the Appellant oe as one of the main conspirators as well as instigators behind the riots that happened in the North-East parts of Delhi from 22-2-2020 to 26-2-2020; and the appellant played an active role in the conspiracy and is one of the “masterminds”.

¶138

47. The Division Bench of Delhi High Court while taking into consideration the conspectus of the general law relating to bail and also taking into consideration that the role as alleged by the prosecuting agency are mere allegations prima facie has not found the allegation true and consequently had enlarged the said appellant on bail.

¶139

27

¶140

48. But in the instant case on the basis of material available on record as there is direct and serious allegation against the appellant that he in connivance with other accused persons is involved in the extortion of money from the contractors, brick kiln owners, businessmen etc. in order to revive the banned proscribed organization to revive the CPI(Maoist) in Magadh Zone which has fully been substantiated by statement of the protected witnesses which were recorded under Section 164 Cr.P.C and further the aforesaid allegation has also been substantiated by the scientific evidence.

¶141

49. This Court considering the aforesaid distinguishing fact in the present case by taking into consideration the active involvement of the appellant in the banned extremist organization and further taking in to gravity of the offence, is of the view that the judgment rendered by the Division Bench of Delhi High Court in the case of Asif Iqbal Tanha versus State of NCT of Delhi (Supra) is not fit to be applied herein.

¶142

Conclusion

¶143

50. Considering the above facts and circumstance and after going through the evidence of the prosecution witnesses, case diary, chargesheet and other documentary evidence recorded by the NIA, prima facie it appears that there is direct and serious allegation against the appellant

¶144

28

¶145

that he in connivance with other accused persons is involved in the extortion of money from the contractors, brick kiln owners, businessmen etc. in order to revive the banned proscribed organization to reviver the CPI(Maoist) in Magadh Zone.

¶146

51. It needs to refer herein that the prayer for default bail of other co-accused person namely Pradyuman Sharma had already been rejected by this Court in Cr. Appl. (DB) No. 1305 of 2022 (Pradyuman Sharma vs N.I.A) vide order dated 22.01.2024.

¶147

52. Further, it has been pleaded in the counter affidavit that allowing the petition of the accused/appellant will have a detrimental effect on the prosecution case and the ongoing investigation of the instant case and the appellant along with his father has tried to threatened the CIO while being in custody.

¶148

53. In the aforesaid context it needs to refer herein that Hon’ble Apex Court in the case of Jayendra Saraswathi Swamigal v. State of T.N. (2005) 2 SCC 13 has observed that the considerations which normally weigh with the court in granting bail in non-bailable offences, basically they are — the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of

¶149

29

¶150

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:

¶151

“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.” ’”

¶152

54. This Court, on the basis of the facts and coming to the provision of Section 43D(5) of the Act, 1967 as also 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.

¶153

55. In view of the foregoing discussions, we find no illegality in the impugned order dated 15.04.2024 passed

¶154

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¶155

by learned AJC-XVI-cum-Spl. Judge, NIA, Ranchi in Misc. Criminal Application 214 of 2024 in connection with Spl. (NIA) Case No.01 of 2022 arising out of R.C. Case No.05 of 2021/NIA/RNC, as such, we are of the view that the instant appeal lacks merit, hence, the same is hereby dismissed.

¶156

56. 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 instant case of the appellant. The same will have no bearing on the trial of the case of the appellant and coaccused.

¶157

(Sujit Narayan Prasad, J.)

¶158

(Navneet Kumar, J.)

¶159

Birendra/ A.F.R.

¶160

31

Tarun Kumar Alias Tarun v. the Union of India through National Investigation Agency

Case brief

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Tarun Kumar Alias Tarun v. the Union of India through National Investigation Agency

Case brief

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What did the court decide?

What the court decided

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