Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 858 (GAU)

Mohet Hojai v. National Investigation Agency

2014-09-08

C.R.SARMA, PRASANTA KUMAR SAIKIA

body2014
JUDGMENT C.R. Sarma, J. 1. This appeal, preferred under Section 21(4) of the National Investigation Agency Act, 2008 (for short, "the NIA Act"), is directed against the judgment and order, dated 15.05.2014, passed by the learned Special Judge NIA, Assam, Guwahati in NIA Misc. Case No. 01/2014 (arising out of NIA Special Case No. 01/2009), whereby the learned Special Judge, NIA rejected the appellant's prayer made under Section 437 Cr. P.C., for grant of bail for a limited period. We have heard Mr. N. Dutta, learned senior counsel, assisted by Mr. D. Talukdar, learned counsel, appearing for the appellant and Mr. D.K. Das, learned standing counsel, National Investigation Agency (hereinafter called 'NIA'), i.e. the respondent. 2. The facts, in brief, as may be necessary for disposal of this appeal, are as follows: The appellant, who was the Chief Executive Member (CEM) of the North Cachar Hills Autonomous Council (NCHAC), now Dima Hasao Autonomous Council (DHAC) with effect from 02.07.2009 to 30.05.2009, was arrested on 30.05.2009 in connection with Basistha P.S. Case No. 170/2009. This case was taken up by the NIA and renumbered as NIA Case No. 01/2009, under Sections120(B)/121/121(A) IPC, read with Sections 16/17/18/20 of the Unlawful Activities (Prevention) Act, 1967 (for short, the UA(P) Act) and Section 25(1-d) of the Arms Act. At the close of the investigation the said agency submitted charge sheet and the trial court, after framing charges for the said offences, proceeded with the trial. The petitioner moved the trial court, seeking release on bail for enabling him to meet the members of his family, from whom he was away for about 5 (five) years and also for making necessary arrangement for further study of his eldest daughter, who passed the last HSLC Examination. Subsequently, during the pendency of this appeal, the appellant filed an additional affidavit taking a new ground relating to ailment of his wife. 3. It has also been contended, in the said application, that despite examination of 36 prosecution witnesses out of 400 witnesses, so far, no material evidence could be elicited against the appellant. The NIA, while objecting the prayer for absolute bail, expressed their no objection for releasing the accused person on interim bail with certain conditions. 3. It has also been contended, in the said application, that despite examination of 36 prosecution witnesses out of 400 witnesses, so far, no material evidence could be elicited against the appellant. The NIA, while objecting the prayer for absolute bail, expressed their no objection for releasing the accused person on interim bail with certain conditions. The learned Special Judge, NIA, Guwahati, while passing the impugned judgment and order dated 15.05.2014, observed that, in view of framing of the charge, there existed strong prima facie case against the accused person for proceeding with the trial for the offence punishable under Chapter IV of the UA(P) Act, alongwith the offences under the Penal Code and the Arms Act. 4. The learned trial Judge, referring to the case of NIA vs. R.H. Khan, reported in 2010 (3) GLT 302 held that the prayer for bail was hit by Section 43(d-5) of the UA(P) Act, 1967 and accordingly rejected the prayer for bail. 5. Mr. Dutta, learned senior counsel, appearing for the appellant, taking us through the impugned order and the additional affidavit aforesaid, has submitted that, due to her serious ailment, the petitioner's wife needs urgent medical treatment and that there being none, except the petitioner, to make necessary arrangement for her medical treatment, the release of the petitioner, on bail, is necessary. Mr. Dutta, learned senior counsel, has also submitted that, on humanitarian ground, the petitioner may be granted interim bail, for a temporary period/so that he can take care of his ailing wife. In support of his contention the learned senior counsel, appearing for the appellant, referring to two decisions, rendered by this court in Criminal Appeal No. 216/2011 (Mihir Barman @ Jewel Garlosa @ Debojit Sinha & Anr. 42 vs. National Investigation Agency (NIA) & Anr.) date of disposal 12.08.2011 and Crl. Appeal No. 188/2011 (Shri Jayanta Kumar Ghosh vs. National Investigation Agency date of disposal 14.11.2014), has submitted that, earlier, some of the accused persons have been granted interim bail, for a temporary period. 6. Mr. D.K. Das, learned standing counsel, NIA, has submitted that the ground relating to the ailment of the wife of the petitioner is a new ground, taken by the appellant at the appellate stage and that the said ground was not taken before the trial court, at the time of considering the prayer for bail by the trial court. 6. Mr. D.K. Das, learned standing counsel, NIA, has submitted that the ground relating to the ailment of the wife of the petitioner is a new ground, taken by the appellant at the appellate stage and that the said ground was not taken before the trial court, at the time of considering the prayer for bail by the trial court. Therefore, it is submitted that the said ground, so taken by the appellant, cannot be sufficient to interfere with the impugned order, in exercise of appellate jurisdiction. It is also submitted that, Section 43(d-5) being a statutory bar, considering the facts and circumstances of the case, there is hardly any scope to interfere with the order passed by the trial court. 7. Having heard the learned counsel, appearing for both the parties, we have carefully perused the impugned order and examined the grounds taken by the appellant. In the present case, admittedly the charge has been framed by the trial court and some of the witnesses have already been examined. The framing of the charge, on the basis of materials collected by the investigating agency, has not been challenged by the appellant. Therefore, there is no difficulty in understanding that the accusation made, against the appellant, is prima facie true. Section 43(d-5) of the UA(P) Act, which has restricted the scope of granting bail reads as follows: "(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release. Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. (6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail." 8. (6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail." 8. In view of the above, if the court is of the opinion that there is reasonable ground for believing that the accusation, brought against such a person, is prima facie true, bail to such a person(s), involved with the offences relating to the Unlawful Activities Act, 1967, can't be granted. The framing of charge for offences, including the offences under the UA(P) Act, 1967, leads to believe that the accusation, brought against the appellant, is prima facie true. This proposition stood, fortified by the failure of the petitioner/accused to challenge the said charges. 9. Therefore, in our considered opinion, the learned trial Judge correctly interpreted the provisions of Section 43(d-5) of the UA(P) Act and committed no error warranting interference by the appellate court. 10. The learned senior counsel has submitted that the appellant has not asked for permanent bail, but for an interim bail, to enable him to take care of the medical problem, faced by his wife. Admittedly, this ground was not taken up before the trial court. A ground relating to fact, if not urged before the trial court, cannot be allowed to be agitated before the appellate court, for finding fault with the impugned order passed by the trial court. 11. In the case of Mihir Barman (supra), a Division Bench of this court granted interim bail to facilitate the applicant for taking part in peace process. In the said case, it was also observed that the NIA, after taking appropriate approval, took the decision not to oppose the bail and allow the applicant to take part in peace negotiation with the Government of Assam as well as the Central Government. In fact, the prayer for interim bail, in the said case, was granted on national interest. But in the present case, the prayer has no link with any national interest. The interest is purely personal, i.e. medical treatment of the wife of the appellant. 12. In the case of Jayanta Kumar Gosh (supra), a Division Bench of this court, while granting interim bail in favour of the applicant, observed that the applicant's mother was in death bed, requiring presence of her son by her side. 13. The interest is purely personal, i.e. medical treatment of the wife of the appellant. 12. In the case of Jayanta Kumar Gosh (supra), a Division Bench of this court, while granting interim bail in favour of the applicant, observed that the applicant's mother was in death bed, requiring presence of her son by her side. 13. In the case at hand, the appellant's wife was admitted in the hospital for 2 (two) days and thereafter she was released with advice to undergo major operation as soon as possible. There is nothing, on record, to show that, in the absence of the appellant, no medical facility could be provided to the wife of the appellant. That a part we have already noticed that this ground was not taken up before the learned trial Judge. The facts and circumstances necessitating release of the appellant, in the above cited two cases, were exceptional, unavoidable and on different footings. Hence, in our considered opinion, the said decisions do not help the appellant. In view of what has been discussed above, we have no hesitation in holding that the learned trial Judge committed no error by refusing to grant the prayer for bail. Hence, we find no merit in this appeal, requiring interference. Accordingly, this appeal is dismissed. Appeal dismissed.