Babulal Turi Vs National Investigating Agency

2025:JHHC:33107-DB

IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (DB) No.818 of 2025

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Babulal Turi, aged about 38 years, Son of Dinesh Turi, Resident of House No.98, Village-Hoti, PO & PS-Chandwa, District-Latehar, (Jharkhand) .… … Appellant

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Versus

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National Investigation Agency, CGO Complex, Lodhi Road, New Delhi, P.O & P.S-New Delhi, District-New Delhi, Pin Code-110003

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.… … Respondent

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------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI

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------For the Appellant : Mr. Sanjay Kumar Tiwari, Advocate For the Respondent : Mr. Amit Kumar Das, Advocate Mr. Saurav Kumar, Advocate

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C.A.V on 16.10.2025 Pronounced on 04/11/2025

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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 13.08.2024 passed in Misc. Cr. Application No.2081 of 2024 by the learned AJC-XVI-cum-Special Judge, NIA, Ranchi whereby and whereunder the prayer for bail of the appellant in connection with Special (N.I.A) Case No. 01 of 2021, arising out of Balumath P.S. Case No.234 of 2020 re-registered as RC Case No.01/2021/NIA/RNC under Sections 147, 148, 149, 353, 504, 506, 307, 427, 435, 386, 387, 120B and 212 of the Indian Penal Code, Section 25(1)(b), 26, 27 and 35 of the Arms Act, Section 3/4 of Explosive Substance Act, Section 17 of CLA Act and Section 16(1)(b), 18, 19, 20 and 23 of UA(P) Act, has been rejected.

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2. At the very outset, it needs to mention herein that earlier this Court vide order dated 08.09.2023 passed in Criminal Appeal (DB)

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No.549 of 2023 has dismissed the prayer for bail of the present appellant on merit by passing a detailed order.

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3. The prosecution case is based on the information received by Balumath police station that at about 19 hours on 18.12.2020, some unknown persons were burning vehicles by firing indiscriminately near check post no.1 near Tetariakhand colliery. Assailants fired on the police party that had rushed to the spot. Accused persons had burnt four trucks one motorcycle and injured four civilians. The remnants of the burnt vehicles, fragments of a cane bomb with wire, a white colour empty gallon of approx 02 liters, spent cartridges and three hand written pamphlets containing threats to the transporters and coal companies, involved in the mining area signed by one Pradip Ganjhu (A-3) were found from the spot. Upon further inquiry it was revealed that gangster Sujit Sinha(A-1) and Aman Sahu @Aman Sao(A-2) had conspired with accused Pradeep Ganjhu (A-3) and his associates, namely, Santosh Ganjhu, Bihari Ganjhu, Sakendra Ganjhu, Pramod Ganjhu and others to collect extortion from CCL transporters, contractors, DO holders and disruption of legitimate works. Accordingly, Balumath P.S. Case No. 234/2020 dated 19.12.2020 was registered under Sections 147, 148, 149, 353, 504, 506, 307, 427, 435, 386, 387 and 120B of IPC, section 27 of Arms Act, Section 3/4 of the Explosive Substance Act, against Sujit Sinha, Aman Sahu, Pradeep Ganjhu, Santosh Ganjhu, Bihari Ganjhu, Pramod Ganjhu, and 5- 6 other unknown accused persons.

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4. The ministry of Home Affairs (MHA) Government of India in view of the gravity of the offence and its cross border and international

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ramification issued orders in exercise of the powers vested under Section 6(5) read with section 8 of the NIA Act, 2008 vide F. No. 11011/01/2020/NIA dated 7.1.2020, directed the NIA to take up the investigation of the aforesaid case. On the direction of the Ministry of Home Affairs NIA re-registered the bearing Case No. 01/2021/NIARNC dated 4.3.2021 under Sections 147, 148, 149, 353, 504, 506, 307, 427, 435, 386, 387, 120B,, 121A, 216 of IPC, Section 25(1)(b), 26, 27 and 35 of Arms Act, section 3/4 of Explosive Substance Act, section 17 CLA Act and sections 10, 13, 16(1) (b), 20 and 23 UA(P) Act.

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5. After investigation NIA submitted chargesheet against Sujit Sinha (A-1), Aman Sahu @ Aman Sao (A-2), Pradip Gajhu @ Mandal alias Prem (A-3), Santosh Gajhu (A-4), Bihari Ganjhu (A-5), Sakendra Ganjhu (A-6), Pramod Ganjhu (A-7), Babulal Turi @ Prabhat @ Guruji @ Avinash @ Shankar (A-8) (the present appellant) , Ajay Turi (A-9), Santosh Kumar @ Banti Yadav @ Banti Yadav (A-10), Prabhat Kumar Yadav @ Dimple Yadav (A-11), Pritam Kumar @ Chiku Yadav (A-12), Santosh Kumar Yadav (A-13), Jasim Ansari (A-14), Wasim Ansari @ Chote (A-15), Majibul Ansari (A-16) and Jahiruddin Ansari (A-17) under Sections 147, 148, 149, 353, 504, 506, 307, 427, 435, 386, 387, 120B, 121A, 216 of IPC, Sections 25(1) (b), 26, 27 and 35 of Arms Act, Section 3/4 of Explosive Substance Act, Section 17 of CLA act, 1908 and Section 16(1) (b), 20 and 23 of Unlawful Activities (Prevention) Act.

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6. From the material available on record and on the basis of the written report, Balumath P.S. Case No. 234/2020 dated 19.12.2020 was

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registered under Sections 147, 148, 149, 353, 504, 506, 307, 427, 435, 386, 387 and 120B of IPC, section 27 of Arms Act and Section 3/4 of the Explosive Substance Act.

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7. The Central Government, taking into consideration the gravity of the offence in exercise of power conferred under Section 6(5) read with section 8 of the NIA Act, 2008, directed the NIA to take up the investigation of the aforesaid case and, accordingly, the NIA reregistered the case being Case No. 01/2021/NIA-RNC dated 04.03.2021 and took up the charge of further investigation of the instant case.

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8. The appellant has been apprehended and taken into custody on 07.02.2021, i.e., prior to the taking over the investigation by the NIA, and, as such, prayer for bail was made by the present appellant before the learned trial Court by filing Misc. Cr. Application No.188 of 2023 but the same has been rejected vide order dated 25.02.2023 against which criminal appeal being Criminal Appeal (DB) No.549 of 2023 was filed before this Court which was also dismissed vide order dated 08.09.2023 by this Court. Thereafter, no application has been filed by the present appellant for regular bail before any higher Forum/Authority.

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Submission of the learned counsel for the Appellant:

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9. Learned counsel for the appellant has submitted that earlier to the present appeal, the present appellant had moved before this Court by filing criminal appeal being Cr. Appeal (DB) No. 549 of 2023 which was dismissed vide order dated 08.09.2023 and thereafter, the present appeal has been preferred by the appellant against the order dated 13.08.2024 by

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which the prayer for grant of bail has been rejected by the learned trial Court.

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10. Learned counsel appearing for the appellant has submitted that the appellant has been falsely implicated in this case and is having no nexus with the member of the terrorist gang and has been made scapegoat to ease the burden of investigation.

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11. The submission has been made that the allegation as leveled by the NIA in the chargesheet that the appellant along with other gang members carried out terrorist act at Tetariyakhad Colliery on 18.12.2020 by indiscriminate firing and burning of coal loaded trucks and one motorcycle to extort money for the terrorist gang by disrupting the Government work and when the police party had rushed to the spot, the accused persons had burnt four trucks, one motorcycle and injured four civilians but there is no evidence to that effect as has been gathered having not been mentioned in the chargesheet.

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12. It has been submitted that very few witnesses have been examined in the trial and they have not supported the prosecution case as against the present appellant.

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13. It has been contended that a large number of witnesses have to be examined in the present case and supplementary investigations is still pending against other persons. It has further been contended that there is no chance to conclude the trial in near future.

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14. It has further been contended that the learned trial Court has failed to appreciate the fact that the Investigating Agency has given a list of large numbers of witnesses in charge sheet, but statement of most of

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the witnesses have not been recorded under section 161 Cr.P.C by the Investigating Agency.

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15. It has been contended that the rejection of the bail application by the learned trial Court is absolutely incorrect and contrary to the observation made by Hon'ble Apex Court in the case Union of India v. K. A. Najeeb reported in (2021) 3 SCC 713.

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16. It has been submitted that the appellant is in custody since 07.02.2021 and, as such, taking into consideration the long custody and in view of the judgment rendered by the Hon'ble Apex Court in the case of Union of India v. K. A. Najeeb (Supra), it is a fit case where the impugned order may be interfered with.

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Submission of the learned counsel for the Respondent:

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17. Per contra, Mr. A.K. Das, learned counsel appearing for the NIA, has submitted that it is incorrect on the part of the appellant to take the ground that there is no allegation against him, rather, ample materials have come against the appellant of having in collaboration with the members of terrorist gang, as would appear from the various paragraphs of the supplementary chargesheet.

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18. Further submission has been made that co-accused, namely, Ajay Turi, has also filed application for regular bail twice but the same was rejected by this Court vide order dated 17.05.2023 passed in Criminal Appeal (DB) No.133 of 2023 and again vide order dated 23.09.2025 in Criminal Appeal (DB) No.840 of 2025.

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19. The submission has also been made that the gravity of allegation against the appellant is more serious in comparison to that of

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the said Ajay Turi. Since, in course of investigation it has come, as has been disclosed by the protected witness, that the appellant has been found carrying terrorist attack on the date of occurrence. The Katta (country made pistol) was recovered from the possession of the appellant as would appear from para 17.33 of the chargesheet.

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20. It further appears from paragraph 17.29 of the extract of the chargesheet that he has been identified by the protected witness.

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21. Further, at paragraph 17.26 it has come that the appellant along with his brother namely, Ajay Turi, has joined the banned organization of Aman Sahu and Sujit Sinha and on 7^th February, 2021 while they were plotting another terror incident in colliery area, they were arrested by Balumath Police with arms, ammunitions, mobile phones, sim cards and a Golden Turtle Ring purchased by Pradip Ganjhu from Bhagwati jewelers.

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22. Mr. A.K. Das, learned counsel appearing for the NIA, has submitted that there are so many materials basis upon which it can be said that the allegation against the appellant is prima facie true and, hence, applying the principle laid down by the Hon'ble Apex Court in the

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case of National Investigation Agency v. Zahoor Ahmad Shah Watali reported in (2019) 5 SCC 1 , the appellant does not deserve to be released on bail.

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23. Learned counsel for the respondent has also submitted that no fresh ground, on facts as well as on law, has been agitated herein by renewing the prayer for grant of bail, hence, the instant appeal is also fit to be dismissed.

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Analysis:

24. We have heard learned counsel for the parties, perused the documents available on record and the finding recorded by the learned trial Court as recorded in the impugned order.

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25. This Court, before proceeding to consider the legality and propriety of the impugned order, and rival submission of learned counsel for the parties, deems it fit and proper to first refer the some settled proposition of law and the relevant provisions of Unlawful Activities (Prevention) Act, 1967 (herein referred as Act 1967) which is required to be considered herein.

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26. The main objective of the Act 1967 is to make powers available for dealing with activities directed against the integrity and sovereignty of India. As per Preamble, Act 1967 has been enacted to provide for the more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected therewith. Therefore, the aim and object of enactment of UAPA is also to provide for more effective prevention of certain unlawful activities.

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27. 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.

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28. 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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29. 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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30. Further, it would be relevant to mention the offences punishable under Sections 13 of the 1967 Act, which read thus:

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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 subsection (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,

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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.

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31. Thus, it is evident that Section 13 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.

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32. At this juncture it will be purposeful to discuss the core of Section 43(d)(5) of the Act 1967 which mandates that the person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true apart from the other offences the appellant is accused of committing offences under Sections 17, 18 and 21 of the UA(P) Act, 1967.

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33. 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 v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1] wherein at paragraph 23 it has been held by interpreting the expression “prima facie true” as stipulated under Section 43D(5) of the Act, 1967 which would mean that the materials/evidence collated by the investigation agency in reference to the accusation against the accused concerned in the First Information Report, must prevail until contradicted and overcome or disproved by other evidence, and on the

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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 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 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

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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….”

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34. 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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35. 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.

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36. Further, the Hon'ble Apex Court by setting out propounding the law in the same case of National Investigation Agency v. Zahoor Ahmad Shah Watali (supra) , has observed that the elaborate examination or dissection of the evidence is not required to be done at this stage and the Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in

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the commission of the stated offence or otherwise. For ready reference paragraph 24, 25 and 26 of the aforesaid judgment is being quoted herein

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under:-

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“ 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.

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25. From the analysis of the impugned judgment, it appears to us that the High Court has ventured into an area of examining the merits and demerits of the evidence. For, it noted that the evidence in the form of statements of witnesses under Section 161 are not admissible. Further, the documents pressed into service by the investigating agency were not admissible in evidence. It also noted that it was unlikely that the document had been recovered from the residence of Ghulam Mohammad Bhatt till 16-8-2017 (para 61 of the impugned judgment). Similarly, the approach of the High Court in completely discarding the statements of the protected witnesses recorded under Section 164 CrPC, on the specious ground that the same was kept in a sealed cover and was not even perused by the Designated Court and also because reference to such statements having been recorded was not found in the charge-sheet already filed against the respondent is, in our opinion, in complete disregard of the duty of the Court to record its opinion that the accusation made against the accused concerned is prima facie true or otherwise. That opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the contents of the case diary and including the chargesheet (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 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

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before the filing of the supplementary or final chargesheet 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 chargesheet (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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37. It is, thus, evident that the exercise to be undertaken by the court at this stage of granting bail of giving reasons for grant or nongrant of bail that is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. Rather, the Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.

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38. It needs to refer herein that the Hon’ble Apex Court in a very recent judgment rendered in Gurwinder Singh Vs State of Punjab and Another reported in 2024 SCC OnLine SC 109 while taking in to consideration of the judgment as rendered in the National Investigation Agency v. Zahoor Ahmad Shah Watali (supra) has observed that, the proviso to Sub-section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail and lays

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down that if the Court, ‘ on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure ’, is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the UAP Act is prima facie true, such accused person shall not be released on bail or on his own bond.

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39. The Hon’ble Apex Court further observed that the conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - ‘bail is the rule, jail is the exception’ - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act and the ‘exercise’ of the general power to grant bail under the UAP Act is severely restrictive in scope.

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40. In the aforesaid context it has further been observed by the Hon’ble Supreme Court that the courts are, therefore, burdened with a sensitive task on hand and in dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail and the ‘justifications’ must be searched from the case diary and the final report submitted before the Special Court.

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41. In the aforesaid background, the Hon’ble Apex Court has held that the test for rejection of bail is quite plain and Bail must be rejected as a ‘rule’, if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It has further been observed that it is only if the test for rejection of

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bail is not satisfied - that the Courts would proceed to decide the bail

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application in accordance with the ‘ tripod test’ (flight risk, influencing

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witnesses, tampering with evidence).

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42. For ready reference following paragraphs of the aforesaid

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Judgment are being quoted herein under:

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“27. A bare reading of Sub-section (5) of Section 43D shows that apart from the fact that Sub-section (5) bars a Special Court from releasing an accused on bail without affording the Public Prosecutor an opportunity of being heard on the application seeking release of an accused on bail, the proviso to Sub-section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail. It lays down that if the Court, ‘ on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure ’, is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the UAP Act is prima facie true, such accused person shall not be released on bail or on his own bond. It is interesting to note that there is no analogous provision traceable in any other statute to the one found in Section 43D(5) of the UAP Act. In that sense, the language of bail limitation adopted therein remains unique to the UAP Act.

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28. The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - ‘bail is the rule, jail is the exception’ - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act. The ‘exercise’ of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D (5)‘ shall not be released’ in contrast with the form of the words as found in Section 437(1) CrPC - ‘ may be released’ - suggests the intention of the Legislature to make bail, the exception and jail, the rule.

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29. The courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail. The ‘justifications’ must be searched from the case diary and the final

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report submitted before the Special Court. The legislature has prescribed a low, ‘ prima facie’ standard, as a measure of the degree of satisfaction, to be recorded by Court when scrutinising the justifications [materials on record]. This standard can be contrasted with the standard of ‘ strong suspicion’, which is used by Courts while hearing applications for ‘discharge--”

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43. In this background, the test for rejection of bail is quite plain. Bail must be rejected as a ‘rule’, if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied that the Courts would proceed to decide the bail application in accordance with the ‘ tripod test’ (flight risk, influencing witnesses, tampering with evidence) . This position is made clear by Sub-section (6) of Section 43D, which lays down that the restrictions, on granting of bail specified in Sub-section (5), are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail.

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44. The Hon’ble Apex Court in the aforesaid judgment after textual reading of Section 43 D (5) UAP Act, has formulated the guideline which was summarized in the form of a twin-prong test . For ready reference the relevant paragraph is being quoted herein under:

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“ 31. On a textual reading of Section 43 D(5) UAP Act, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarised in the form of a twin-prong test:

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Whether the test for rejection of the bail is satisfied?

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1.1 Examine if, prima facie, the alleged ‘accusations’ make out an offence under Chapter IV or VI of the UAP Act

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1.2 Such examination should be limited to case diary and final report submitted under Section 173 CrPC;

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Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC (‘tripod test’)?”

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45. This Court, on the basis of the aforesaid position of law and the factual aspect as has been gathered against the appellant is now proceeding to examine as to whether the accusation against the appellant is prima facie true by taking into consideration the material collected in course of investigation.

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46. Before entering into the merit of the case, it would be apt to refer herein that the prayer for bail was made before the learned trial Court by filing Misc. Cr. Application No.188 of 2023 but the same had been rejected by the learned trial Court vide order dated 25.02.2023 against which appeal was preferred being Cr. Appeal (DB) No. 549 of 2023 which has also been dismissed by this Court vide order dated 08.09.2023.

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47. Thereafter, the appellant has again preferred an application for regular bail before the learned trial Court by filing Misc. Cr. Application No.2081 of 2024 which was dismissed vide order dated 13.08.2024.

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48. Being aggrieved, the present appeal has been preferred by the appellant for grant of regular bail.

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49. Thus, from the aforesaid, it is evident that this Court which rejecting the prayer for bail of the present appellant vide order dated 08.09.2023 has already expressed its view on merit of the case by taking

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into consideration the settled proposition of law. For ready reference, the

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relevant paragraph(s) of the said order is being referred as under:

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“29. It is evident from the counter affidavit based upon the material collected in course of investigation as in the supplementary chargesheet that in course of investigation it has come on record that after the Tetariyakhad Colliery incident on 19.12.2020, a team of PS- Balumath searched the scene of crime at Tetariyakhad Colliery and recovered 04 burnt trucks bearing registration No. JH-19C-8853, JH 19B-5941, JH-19B-6142 and truck No-JH 19B-4021, one Yamaha Motorcycle No-JH01-DH4269, one blasted Cane Bomb with wire, one white empty gallon, 07 empty fire cases out of which, 05 cases were marked as 7.65 KF and 02 empty cases were marked as BMM KF and three hand written pamphlets having contents " चेतावनीतेतरियाखड परियोजना म७कोयला खनन कि िहीआउटसोोस४ग कंपनीसाोहत कोयला परिवहन कि िहीकंपनी। कोयला का उठाओकि िहेोडपोधािक ोल�ि को चेतावनीहैोक ोिना सुजीत िॉस कोमैनेज कि७ जोकाम किेगा उसको मौत केघाट उ�ाि ोिया जाएगा। ोनवेिक ঋिीप गंझू (ⅰ) येतोटरेलि है ोपঞिअभीिाकीहै (ii) तेतरियाकोलमाइ�म७िॉ��ा� , AK-47, ोप�लकीझलकहैऔिमगधआএपालीअभीिाकीहै " । 30. It has come during investigation that Balumath police arrested accused Pradip Ganjhu (A-3), Babulal Turi (A-8) [appellant herein], Ajay Turi (A-9), Santosh Kumar @ Banti Yadav (A-10), Prabhat Kumar Yadav @ Dimple Yadav (A-11), Pritam Kumar @ Chiku, S/o Sita Ram Yadav (A-12), and Santosh Kumar Yadav (A13) on 07.02.2021. During examination the said accused persons revealed their part in the criminal conspiracy of Tetariyakhad incident. Accused Pradip Ganjhu (A-3) and Babulal Turi (A-8) disclosed the names of the accused persons i.e., Sujit Sinha (A-1), Amand Sahu (A-2), Santosh Ganjhu (A-4), Bihari Ganjhu (A-5), Sakender Ganjhu (A-6), Pramod Ganjhu (A 7), Shahrukh @ Tiwari Khan, Saif Ansari @ Bablu, Jasim Ansari (A-14), Wasim Ansari (A-15), Majibul Ansari (A-16), Jahiruddin Ansari (A-17), Sjay Turi, S/o Govind Turi, Pankaj Karmali @ Khetiya, Arjun Pahariya and Shani Ganjhu etc., who were part of the criminal conspiracy, took part in carrying out firing and burning incident at Tetariyakhand Colliery, threw threatening pamphlets terrorizing

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the Coal Businessmen, for DO Holders, Transporters, etc. and to disrupt the legitimate work, facilitated ammunition and safe provided custody harbour of arms & to involved in Tetariyakhand Colliery incident.

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31. During police remand of accused Pradip Ganjhu @ Prem @ Mandalji (A-3), Babulal Turi (A-8), Santosh Yadav@ Banti Yadav (A-10), Prabhat Kumar @ Dimple Yadav (A-11) and Pritam Kumar @ Chiku Yadav (A-12), accused persons were thoroughly examined. They disclosed their past conduct as well as their part in the criminal conspiracy related to Tetariyakhad incident dated 18.12.2020 and they even pointed out places related to the said incident.

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32. While in police remand, accused Ajay Turi (A- 9) disclosed that, he, on the directions of Pradip Ganjhu (A-3) and his brother Babulal Turi (A-8), wrote threatening pamphlets, which were dropped during terrorist attack at Tetariyakhand on 18.12.2020. 33. It has also come that after the seizure of AK-47 Rifle etc. and arrest of 02 Gang members by Balumath Police, accused Sujit Sinha (A-1) and Aman Sahu (A-2), in collaboration with Pradip Ganjhu and others, planned to carry out terror incident at Tetariyakhand Colliery. They were directed to attack on Truck owners, D.O. Holders, Transporters and lifters to spread the fear in their minds so that they could be extorted. To execute the plan, Pradip Ganjhu (A-3) Ganjhu (A-4) Bihari Ganjhu (A-5), Santosh Sakendra Ganjhu (A-6), Pramod Ganjhu (A-7), Babulal Turi (A-8) and his brother Ajay Turi (A-9), Shahrukh Ansari (A 21) and others met at Village-Dhoti. On the directions of Pradip Ganjhu (A-3) and Babulal Turi (A-8), accused Ajay Turi (A-9) wrote threatening pamphlets. On 17.12.2020, they reached near Tetariyakhand Colliery and remained in Pindarkom forest. On the directions of Babulal Turi, i.e. the present appellant, his brother Ajay Turi (A-9), along with Bihari Ganjhu (A- 5), went to Mccluskigunj, District Ranchi and purchased electric wire and a battery of motorcycle. They also purchased Petrol with Gallons from Bhangia, PS Balumath, District- Latehar, Jharkhand Tetariyakhand for using in the attack. 34. Investigation has further brought out that, on 17.12.2020, accused Pradip Ganjhu (A-3), Babulal Turi (A 8), Ajay Turi (A-9), Santosh Ganjhu (A-4), Bihari Ganjhu (A 5) Sakendra Ganjhu (A-6), Pramod Ganjhu (A-7),

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Shahrukh Ansari @ Tiwari Khan and others took dinner at the house of one Laso Yadav s/o Bhagwat Yadav resident of Pindarkom, PS-Balumath, District-Latehar. While having the dinner, they were discussing a probable terrorist attack at Tetariyakhand.

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35. That, it has been revealed during the course of investigation that, on 18.12.2020, at about 06:30 PM, accused Pankaj Karmali @ Khetiya and Ajay Turi R/o Bundu carried out reccee at Tetariyakhad. At about 07:00 PM, Pradip Ganjhu (A-3), Santosh Ganjhu (A-4) Bihari Ganjhu (A-5), Sakendra Ganjhu (A-6), Pramod Ganjhu (A 7), Babulal Turi (A-8), Shahrukh Ansari (A21), Saif Ansari @Bablu, Ajay Turi S/o Goving Turi, Pankaj Karmali@ Khetiya and Arjun Pahariya reached Tetariyakhand and carried out indiscriminate firing, in which 04 civilians were injured. They also burned down 04 trucks, 01 motorcycle and they blasted cane bombs beneath a Weigh Bridge and beneath a truck. During the incident, they also dropped threatening pamphlets in the name of Sujit Sinha (A-1) and Pradip Ganjhu (A-3). On getting information, Balumath Police also reached at Tetariyakhand Colliery and fired on them but they escaped from the place of incident firing at the police party. 36. Investigation further brought out that, during the absconding period in Bihar, Pradip Ganjhu (A-3) and Shahrukh (A-21) remained in contact with Aman Sahu (A 2). Police was tracking them in district Bhagalpur so they along with Santosh Kumar @ Banti Yadav (A-10), Prabhat Kumar @ Dimple Yadav (A-11), Pritam Kumar @ Chiku Yadav (A-12) and Santosh Kumar Yadav (A-13) came to Jharkhand and were hiding in Pindarkom Forest. Babulal Turi (A-8) and his brother Ajay Turi (A- 9) also joined them. On 7th February 2021, while they were plotting an another terror incident in Colliery area, they were arrested by Balumath Police with arms & ammunition, Mobile Phones, SIM Cards and a Golden Turtle Ring purchased by Pradip Ganjhu (A-3) from Bhagwati jewellers.

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37. During custodial examination, accused Ajay Turi (A 9) brother of accused Babulal Turi (A-8) disclosed that on the directions of Pradip Ganjhu and Babulal Turi, he had written the seized pamphlets.

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38. During investigation, the statements of protected witnesses ‘A’ and ‘B’ were recorded. Both witnesses were present at

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Tetariyakhand colliery at the time of firing by accused Pradip Ganjhu (A-3) with other co-accused. Both witnessed the said incident. During photo identification proceedings in presence of independent witnesses, both have identified the photograph of accused Pradip Ganjhu (A-3) by name and also identified him to be the resident of village-Pindarkom, PS-Balumath, DistrictLatehar. They also identified the photographs of Babulal Turi (A8), Santosh Ganjhu (A-4), Bihari Ganjhu (A-5), Sakendra Ganjhu (A-6), Pramod Ganjhu (A-7) and accused Shahrukh Ansari stating that these persons were among the group of 10 to 12 attackers who carried out firing and arson near Check Post No.01 at Tetariyakhand colliery.

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39. It has also come in the chargesheet that the appellant was actively involved in the attack of Tetariyakhad colliery being a member of the terrorist gang of Sujit Sinha (A-1) and Aman Sahu (A-2) and was arrested by Balumath Police with arms, ammunitions, mobile phones, sim cards and a Golden Turtle Ring purchased by Pradip Ganjhu from Bhagwati jewelers. The said fact has been corroborated with the documentary evidences marked as D-11, D-12, D-13, D-14, D-15, D-19, D-57, D-58, D- 59, D-60, D-123, D-87, D-88, D-89, D-91, D-92, D-93, D-94, D- 159 and D-38 along with the oral evidences marked as PW-15, PW-16, PW-26, PW-55 and PW-56.

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44. It is evident from the material available on record that in course of investigation it has come that after the Tetariyakhad Colliery incident the police searched the scene of crime and recovered 04 burnt trucks, one Yamaha Motorcycle, one blasted Cane Bomb with wire, one white empty gallon, 07 empty fire cases out of which, 05 cases were marked as 7.65 KF and 02 empty cases were marked as BMM KF and three hand written pamphlets having threatening contents.

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45. Accused Ajay Turi (A-9), brother of appellant Babulal Turi (A8), along with Jasim Ansari (A-14) and his brother Wasim Ansari (A-15) when remanded to police custody for custodial interrogation, he (A-8) has disclosed his role in this criminal conspiracy and in presence of the independent witnesses disclosed that on the direction of Pradip Ganjhu (A-3) and his brother Babulal Turi (A-8), appellant herein, he wrote threatening pamphlets which were dropped during terrorist attack at

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Tetariyakhad on 18.12.2020. He further pointed out the shops from where he along with Bihari Ganjhu (A- 5) purchased wire, Battery of Motorcycle from Mccluskigunj district Ranchi and Petrol with gallons from a place called Bhangiya and the same were used in Tetarikhand incident for the arson purpose.

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46. During investigation the role of the appellant has also come in attacking the truck owners, D.O. holders, transporters and lifters to spread fear in their minds, so that they could be extorted and to execute the said plan, the appellant Babulal Turi (A-8) had participated along with the other accused persons and accordingly, they reached near Tetariyakhad Colliery and remained in the forest and on the direction of appellant Babulal Turi (A-8), the Ajay Turi (A-9) along with accused Bihari Ganjhu (A-5), went to Mccluskigunj in the district of Ranchi and purchased electric wire and battery of motorcycle. He also purchased petrol with gallons from a place called Bhangiya, P.S. Balumath, district Latehar for using the same in the Tetariyakhad Colliery attack.

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47. It has further been surfaced that the appellant with the other accused persons took dinner at the house of on one Laso Yadav and while having the dinner, they were discussing a probable terrorist attack at Tetariyakhad colliery.

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48. It further transpires from the counter affidavit which is based upon the material collection in the investigation as in the supplementary chargesheet that the NIA has taken statement under Section 161 Cr.P.C. of the witnesses and the two protected witnesses had seen the said incident at Tetariyakhad colliery and had identified the appellant and other accused persons who had carried out firing and arson near Check Post No.1 at Tetariyakhad Colliery.

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49. It has also come in the chargesheet that the appellant was actively involved in the attack of Tetariyakhad colliery being a member of the terrorist gang of Sujit Sinha (A-1) and Aman Sahu (A-2) and was arrested from the forest with other accused persons with arms and ammunition while planning other terrorist attack. The said fact has been corroborated with the documentary evidences marked as D-11, D-12, D-13, D-14, D-15, D-19, D-57, D 58, D-59, D-60, D-123, D-87, D-88, D-89, D-91, D-92, D 93, D-

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94, D-159 and D-38 along with the oral evidences marked as PW15, PW-16, PW-26, PW-55 and PW-56.

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50. The further material has come that the appellant who is the active member of the Sujit Sinha and Aman Sahu gang is still active in the criminal activities of act of terror, raising funds for terrorist act, conspiring, extortion, attempt to murder and firing using illegal arms etc. and several cases have been registered against that gang.

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51. This Court, after taking into consideration the aforesaid allegation and considering the fact which has come in course of investigation that the appellant is the active member of the Sujit Sinha and Aman Sahu gang and on the direction of Sujit Sinha and Aman Sahu the members of this gang including Babulal Turi carried out firing incidents including at Tetariakhand colliery on 18.12.2020 in which four civilians were injured and four trucks and one motorcycle were burnt.

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52. It appears from the discussion so made hereinabove that the allegation against the appellant in course of investigation has come in several paragraphs of the chargesheet, i.e., paragraph 17.5, 17.8, 17.9, 17.11, 17.20, 17.22, 17.26, 17.29, 17.33 etc.

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53. The appellant has been identified by the protected witnesses and is evident from paragraph 17.33 of the chargesheet wherein it has come by making reference of the chemical examination of the ammunitions seized from the possession of the accused persons which were forwarded to the Forensic Science Laboratory, Ranchi for forensic analysis. The partially report has been received which informed that 03 fired shell seized from the scene of crime were fired from country made pistol seized from the possession of accused Pradip Ganjhu(A-3). 01 fired shell of .315 inch/8 mm seized from the scene of crime was fired from country made kata seized from the possession of appellant Babulal Turi (A-8). 01 fired shell of .315 inch/8 mm seized from the scene of crime was fired from country made kata seized from the possession of Prabhat Kumar @ dimple Yadav (A-11).

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54. The report has also come that the ammunitions seized from the possession of accused persons was found to be effective.

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55. It has further come at paragraph 17.29 of the chargesheet that the protected witnesses who were present at Tetariyakhad colliery at the time of firing by accused Pradip Ganjhu (A-3) with other co-

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accused on 18.12.2020. Both witnessed the said incident. During photo identification proceedings in presence of independent witnesses, both identified the photograph of accused Pradeep Ganjhu by name and also identified him to be the resident of Village-Pindarkom, PS-Balumath, District Latehar. They also identified the photographs of Babulal Turi (A-8), Santosh Ganjhu (A-4), Bihari Ganjhu (A-5), Sakendra Ganjhu(A-6), Pramod Ganjhu (A-7) and accused Shahrukh Ansari stating that these persons were among the group of 10 to 12 attackers who carried out firing and arson near Check Post No.01 at Tetariyakhad colliery.----------

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56. It further appears from paragraph 17.26 that the appellant and his brother Ajay Turi (A-9) whose bail application has already been rejected by this Court vide order dated 17.05.2023 passed in Criminal Appeal(DB) No.133 of 2023, had joined the gang and on 07.02.2021, while they were plotting another terror incident in colliery area, they were arrested by Balumath Police with arms and ammunitions, mobile phones, sim cards and a Golden Turtle Ring purchased by Pradip Ganjhu from Bhagwati jewelers.-------

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57. The NIA, during investigation recorded the confession of accused Ajay Turi (A-9), Jasim Ansari (A-14) and his brother Wasim Ansari (A-15). The said accused disclosed their role in this criminal conspiracy. In presence of the independent witnesses, Ajay Turi (A-9) disclosed that on the direction of Pradip Ganjhu (A-3) and his brother Babulal Turi (A-8), he wrote threatening pamphlets which were dropped during terrorist attack at Tetariyakhad on 18.12.2020.------

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61. Learned counsel for the appellant has tried to impress upon the Court by referring the judgment rendered by Hon'ble Apex Court in the case of Union of India v. K. A. Najeeb reported in (2021) 3 SCC 713 wherein the Hon'ble Apex Court, by taking note of the judgment rendered in the case of Shaheen Welfare Association v. Union of India reported in (1996) 2 SCC 616 wherein proposition has been laid down that gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail. The Paragraph-11 of the aforesaid judgment, for ready reference, is being quoted hereunder as:

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62. It appears from the fact involved in the said case, as is being reflected from paragraph 14, that the respondent in the aforesaid case was in jail for much more than five years, but there are 276 witnesses left to be examined. Charges have been framed only on 27.11.2020. Still further, two opportunities were given to the appellant NIA who has shown no inclination to screen its endless list of witnesses. The thirteen co-accused who have been convicted, none have been given a sentence of more than eight years' rigorous imprisonment.

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63. The Hon'ble Apex Court in the backdrop of aforesaid premise, has been pleased to observe that it can be legitimately expected that if found guilty, the respondent too would receive a sentence within the same ballpark. Given that two-third of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice. The Hon'ble Apex Court in the light of the aforesaid proposition and taking into consideration the constitutional mandate as guaranteed under Article 21 of the Constitution of India has come to make such observation therein.

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64. It further appears from paragraph 17 of the aforesaid judgment that the presence of statutory restrictions like Section 43D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution.

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65. This Court has examined the factual aspect in the facts of the given case. It is evident therefrom that the chargesheet has been submitted on 05.08.2021. The charge has also been framed and now it has been informed that the trial has also commenced and two witnesses have already been examined. The appellant is in custody since 07.02.2021. Thus, it cannot be said that the fact is exactly similar as the fact of the case in Union of India v. K.A. Najeeb (Supra). Further, in the instant case, none of the accused persons has yet been convicted.

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68. This Court, keeping the facts into consideration, regarding applicability of the judgment depending upon the facts of the case, is of the view that the fact of the given case is not of such extent where it can be said that there is violation of Part-III of the Constitution of India since the trial has already commenced,

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evidence is going on and two witnesses have already been examined.

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69. This Court is further of the view by taking into consideration the specific attributability, as has been surfaced in court of investigation regarding causing turbulence and the appellant having been identified by the protected witnesses that he was apprehended at the spot itself, the recovery of arms and ammunitions is there. From the scientific examination the connectivity of the arms recovered has been established in the FSL report.

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70. This Court, taking into consideration the entirety of facts and circumstances, as discussed hereinabove, coupled with the fact that the prayer of the co-accused for grant of bail has already been rejected, therefore, is of the view that it is not a case where this Court has prima facie can come to a conclusion that the allegation levelled is prima facie untrue.

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71. This Court, after having discussed the factual aspect as above and coming back to the order impugned wherefrom it is evident that the learned trial court has considered the material available against the appellant in the chargesheet as also by taking into consideration the provision as contained under Section 43D(5) of the Act, 1967, has come to the conclusion that the accusation against the appellant is prima facie true and in that view of the matter, the learned trial court has declined to extend the benefit of regular bail.

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72. We are also in agreement with the aforesaid finding based upon the material of accusation of the appellant and not prima facie satisfied by taking into consideration the entire material on record and, hence, we are not inclined to interfere with the impugned order.

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73. Accordingly, the instant appeal fails and is dismissed.”

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50. Thus, from aforementioned paragraphs, it is evident that this

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Court while dismissing the appeal has taken care of the culpability of the present appellant and after due consideration of each and every aspect of the case had denied to interfere with the order impugned.

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51. Now coming to the contention made by the learned counsel for the appellant, wherefrom it appears that no fresh ground has been raised except the ground of custody and personal liberty since the appellant is languishing in judicial custody since 07.02.2021.

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52. At this juncture, it would be appropriate to refer herein that only the long incarceration is not the ground to be looked into for enlarging the accused on bail rather the accusation so made against the accused persons as also societal impact is also to be taken care of.

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53. The Hon’ble Apex Court in a judgment rendered in Gurwinder Singh Vs State of Punjab and Another reported in 2024 SCC OnLine SC 109 while taking into consideration the judgment as rendered in National Investigation Agency v. Zahoor Ahmad Shah Watali (supra) has observed that, the proviso to Sub-section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail and lays down that if the Court, ‘ on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure ’, is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the UAP Act is prima facie true, such accused person shall not be released on bail or on his own bond.

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54. The Hon’ble Apex Court further observed that the conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - ‘bail is the rule, jail is the exception’ - unless circumstances justify otherwise -

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does not find any place while dealing with bail applications under UAP Act and the ‘exercise’ of the general power to grant bail under the UAP Act is severely restrictive in scope.

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55. In the aforesaid context, it has further been observed by the Hon’ble Supreme Court that the Courts are, therefore, burdened with a sensitive task on hand and in dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail and the ‘justifications’ must be searched from the case diary and the final report submitted before the Special Court.

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56. In the aforesaid b ackground , the Hon’ble Apex Court has held that the test for rejection of bail is quite plain and Bail must be rejected as a ‘rule’, if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It has further been observed that it is only if the test for rejection of bail is not satisfied - that the Courts would proceed to decide the bail application in accordance with the ‘ tripod test’ (flight risk, influencing witnesses, tampering with evidence).

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57. In this background, the test for rejection of bail is quite plain. Bail must be rejected as a ‘rule’, if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied that the Courts would proceed to decide the bail application in accordance with the ‘ tripod test’ (flight risk, influencing

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witnesses, tampering with evidence) . This position is made clear by Sub-section (6) of Section 43D, which lays down that the restrictions, on granting of bail specified in Sub-section (5), are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail.

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58. The Hon’ble Apex Court in the aforesaid judgment after textual reading of Section 43D (5) UAP Act, has formulated the guideline which was summarized in the form of a twin-prong test .

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59. In the backdrop of the aforesaid settled proposition of law, this Court is now adverting to the order dated 13.08.2024 passed by the learned trial Court in Misc. Criminal Application No. 2081 of 2024 which is under challenge herein.

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60. The learned trial Court in the said order dated 13.08.2024 has taken into consideration that the present appellant had earlier filed Misc. Criminal Application No.188 of 2023 which had been rejected vide order dated 25.02.2023 against which the appellant preferred appeal being Criminal Appeal (DB) No.549 of 2023 before the High Court which had also got rejected vide order dated 08.09.2023.

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61. The learned trial court has observed in the order impugned herein that a prima facie case is being made out against the appellant on the basis of evidence collected by the NIA during investigation. It has been taken note therein that the appellant has taken active part in the criminal conspiracy. On the alleged date of occurrence he committed recce, gave information to the other accused persons who came to the place of occurrence and fired indiscriminate bullet and appellant was

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also present there. There is also allegation that while investigation country made pistol and four live cartridges were recovered from his possession. Hence, the learned trial Court taking into consideration the seriousness of the crime and role played by the appellant in preparation of terrorist attack at Tetariakhand colliery, has rejected the prayer for bail of the present appellant.

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62. Herein, the learned counsel for the respondent-NIA has submitted at Bar that the trial in the instant case is in progress and charges have already been framed against the present appellant and further substantial number of witnesses have already been examined.

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63. In the light of the aforesaid submission of the learned counsel for the NIA, this Court is of the view that since in the instant case trial is in progress, and this Court has already expressed its view on the merit in earlier appeal which has been filed by the appellant with prayer for bail and since no fresh ground is available for the appellant, therefore, it is considered view of this Court that it is not required for this Court to reiterate its view on merit.

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64. So far, the delay in trial is concerned it is relevant to state that the Hon’ble Apex Court in the case of Gurwinder Singh v. State of Punjab (supra) taking into consideration the ratio of judgment of Union of India vs. K.A. Najeeb, (2021) 3 SCC 713 has observed that mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail, for ready reference the relevant paragraph is being quoted as under:

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“ 46. As already discussed, the material available on record indicates the involvement of the appellant in furtherance of

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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.”

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65. Thus, on the basis of the aforesaid settled position of law it is

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evident that mere delay in trial pertaining to grave offences, as one involved in the instant case, cannot be used as a ground to grant bail.

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66. The learned counsel for the appellant has further raised the issue of parity by stating that another co-accused person, namely, Prabhat Kumar Yadav @ Dimple Yadav @ Prabhat Kumar has been granted bail vide order dated 05.03.2025 passed in Cr. Appeal (DB) No. 1412 of 2023, therefore, the prayer of the present appellant for bail is fit to be allowed.

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67. Per contra, the learned Counsel for the NIA has contended that the prayer for bail of the co- accused, namely, Ajay Turi, has been rejected twice by this Court vide order dated 17.05.2023 passed in Criminal Appeal (DB) No.133 of 2023 and again vide order dated 23.09.2025 in Criminal Appeal (DB) No.840 of 2025 and prima facie the nexus of the present appellant with the said Ajay Turi has been established by the investigating agency, therefore, the issue of parity is not available to the present appellant.

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68. In the aforesaid context, it requires to refer herein that this Court is conscious with the settled position of law that the issue of parity, is to be taken into consideration but the same is to be taken into

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consideration by applying the factual aspect along with the surrounding facts, as has been held by the Hon’ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement, 2023 SCC OnLine SC 1486 wherein it has held as under:

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“18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration.”

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69. It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by simply saying that another accused has been granted bail is not sufficient to determine whether a case for grant of bail on the basis of parity has been established. Reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in “ Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana”, (2021) 6 SCC 230 wherein it has been held as under:

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“25. We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527], this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed: (SCC p. 515, para 17):

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“17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history sheeter, it was imperative on the part of the High Court to scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] clearly exposes the nonapplication of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside.”

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26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12- 2020 [Pravinbhai Hirabhai Koli v. State of Gujarat, 2020 SCC OnLine Guj 2986] , [Khetabhai Parbatbhai Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2988] , the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22- 10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High Court recorded) that he was “assigned similar role of armed with stick (sic)”. Again, bail was granted to Vanraj Koli (A16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law.”

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70. In the backdrop of the aforesaid settled position of law, this Court is adverting into the order dated 05.03.2025 passed in Cr. Appeal (DB) No. 1412 of 2023 by which the co-accused person, namely, Prabhat Kumar Yadav @ Dimple Yadav @ Prabhat Kumar has been granted bail, for ready reference the relevant paragraphs of the said order are being quoted as under:

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7. The aforesaid would reveal that based on the forensic analysis the involvement of Pradeep Ganjhu, Babulal Turi and the appellant in the Terariakhad incident of firing and arson has been established. The prayer for bail of the Pradeep Ganjhu and Birbal Turi has been rejected by a co-ordinate Bench of this Court in Cr. Appeal (DB) No. 781 of 2023 and Cr. Appeal (DB) No. 549 of 2023 respectively. However, it seems that the appellant is in custody since 07.02.2021 i.e. more than four years and there are number of witnesses to be examined by the prosecution. We may, at this juncture, refer to the case of “Union of India versus K.A. Najeeb” reported in (2021) 3 SCC 713 wherein it has been held as follows:-----

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8. On consideration of the period of incarceration undergone by the appellant, we while setting aside the order dated 13.07.2023 passed in Misc. Cr. Application No. 1527 of 2023 in connection with Special (NIA) Case No. 01 of 2021, corresponding to RC Case No.01/2021/NIA/RNC, arising out of Balumath PS Case No. 234 of 2020 by Sri Madhuresh Kumar Verma, learned AJC XVI-cum Spl. Judge, NIA, Ranchi, direct that the appellant shall be released on bail on furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of learned AJC XVIcum- Spl. Judge, NIA, Ranchi in connection with Special (NIA) Case No. 01 of 2021, corresponding to RC Case No.01/2021/NIA/RNC, arising out of Balumath PS Case No. 234 of 2020, subject to the condition that the appellant shall remain physically present on each and every date before the learned trial Court till the conclusion of trial.”

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71. It is evident from the said order that the co-ordinate Bench while allowing the appeal of the said co-accused, namely, Prabhat Kumar Yadav @ Dimple Yadav has taken into consideration the period of

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incarceration of the said co-accused, but on the other hand in the preceding paragraph of the said judgment the co-ordinate Bench has also taken the view that involvement of the said co-accused in the crime has fully been established based on the forensic analysis.

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72. However, the role of the present appellant has been surfaced as main conspirator behind the alleged commission of crime and Ajay Turi (A-9) disclosed that on the direction of Pradip Ganjhu (A-3) and his brother Babulal Turi (A-8), he wrote threatening pamphlets which were dropped during terrorist attack at Tetariyakhad on 18.12.2020. Further the present appellant has been identified by the independent witnesses as person who was among the group of 10 to 12 attackers who carried out firing and arson near Check Post No.01 at Tetariyakhand colliery .

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73. This Court, in view of the principle of parity as discussed hereinabove and taking into consideration the material available against the present appellant and also the culpability of the present appellant in alleged commission of crime is of the view that the principle of parity is not fit to be applied herein.

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74. Thus, taking into consideration that this Court has earlier expressed its view, on merit, with regard to the prayer for grant of bail of the present appellant as also there is no change in circumstances as no fresh ground has been agitated herein as also taking into consideration the submission advanced on behalf of the respondent-NIA that the trial is going on expeditiously, this Court is of the view that the order impugned dated 13.08.2024 passed in Misc. Criminal Application No. 2081 of 2024 requires no interference.

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75. Accordingly, the instant appeal fails and is dismissed.

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76. Pending interlocutory application(s), if any, also stands

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disposed of.

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(Sujit Narayan Prasad, J.)