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2023 DIGILAW 424 (PAT)

Tirpurari Singh @ T. P. Singh v. State of Bihar

2023-04-06

A.M.BADAR, CHANDRA SHEKHAR JHA

body2023
A. M. Badar, J. – This is an appeal under Section 21(4) of the National Investigating Agency Act, 2008, preferred by the appellant challenging the order dated 18.10.2022 passed by the learned Special Judge, NIA, Patna, in Special Case No. 02 of 2019 arising out of R.C.Case No. 05 of 2019, thereby rejecting the bail application filed by appellant Tripurari Singh @ T.P. Singh by holding that on earlier three occasions, bail petition of the appellant had been heard and decided by that Court on merits, apart from the fact that even appeal challenging one of that order has been rejected by the Division Bench of this Court vide judgment and order dated 22.11.2021 passed in Cri. Appeal (DB) No. 180 of 2021. 2. The appellant is charged for the offences punishable under Sections 414, 467, 468, 471 and 474 of the Indian Penal Code as well as under Sections 25(1-a), 25(1-A), 25(1-AA), 25(1-B)(a), 26, 29 and 35 of the Arms Act so also under Sections 16, 17, 18, 18B and 19 of the Unlawful Activities (Prevention) Act, 1967. 3. Heard the learned counsel appearing for the appellant at sufficient length of time. By taking us through the relevant portion of the charge-sheet he argued that the only evidence against the appellant as claimed by the Prosecuting Agency is that of confessional statement of co-accused Suraj son of Prabhu Prasad recorded by Police. He further argued that if that confessional statement recorded by Police which is at Page 83 of the paper book is perused then that confessional statement is not containing any allegation against the appellant in respect of any of the act of the offence alleged by the Prosecuting Agency. In fact, co-accused Suraj has not even named appellant Tripurari Singh @ T.P. Singh in his confessional statement to Police, leave apart the fact that confession made to the Police Officer cannot be looked into by the court and cannot form evidence against the accused. It is further argued that the prosecution has also claimed that the appellant used to travel for supplying arms and he has funded Rs. 60,000/- to the Bhikhan Ganju one of the accused. However, there is no tangible evidence in that regard. As against this, the learned Prosecutor has read opinion of the Investigator reflected in the charge-sheet to demonstrate that there is evidence against the appellant. 60,000/- to the Bhikhan Ganju one of the accused. However, there is no tangible evidence in that regard. As against this, the learned Prosecutor has read opinion of the Investigator reflected in the charge-sheet to demonstrate that there is evidence against the appellant. However, he is not in a position to point out any evidence against the appellant in the form of statements of witnesses or the bank accounts. The learned Prosecutor has drew our attention to the statement of accounts at page-87 issued by the Union Bank of India and argued that this is account of Shiv Enterprises which is owned by the appellant. However, the account statement does not reflect this fact. 4. We have considered the submissions so advanced. We have also perused the materials placed on record of this appeal. 5. At initial stage, the offence was registered on the basis of F.I.R. lodged by Vijay Kumar Yadav, Sub Inspector of Bihar Police, vide Crime No. 35 of 2019 on 7.2.2019 for offences under Section 414 of the Indian Penal Code as well as under Sections 25(1-B)(a), 26 and 35 of the Arms Act against the accused persons named in the F.I.R. as well as against some unknown person. Subsequently thereto, the investigation of the subject crime was entrusted to the National Investigating Agency and accordingly F.I.R. bearing No. RC- 05/2019/NIA/DLI came to be registered on 28.2.2019. The routine investigation ensued leading to filing of the chargesheet against the accused persons including the present appellant. The appellant was arrested on 16.2.2019 and since then he is under detention as an under trial prisoner. 6. We have noted the submissions of the learned counsel for the appellant as well as the learned Prosecutor appearing for the respondent with our comments. We reiterate that in the wake of rejection of earlier bail application of the appellant by the Division Bench of this Court vide order dated 22.11.2021 passed in Cri. Appeal (DB) No. 180 of 2021 whereby the impugned order passed earlier rejecting the bail application was confirmed, it is not possible for us to enter into the arena of merits of the arguments advanced by the parties. The learned Division Bench of this Court has already observed in the said order that the material collected during the investigation against the appellant is highly incriminating. 7. The learned Division Bench of this Court has already observed in the said order that the material collected during the investigation against the appellant is highly incriminating. 7. Be that as it may, there is one another angle to the case in hand. 8. The appellant is undergoing pre-trial detention from 16.2.2019. It is not in dispute that the prosecution has cited as many as 176 prosecution witnesses. The charge is reportedly framed by the learned Special Court under the N.I.A. Act on 23.2.2022. While rejecting the appeal of the present appellant on earlier occasion, i.e., 22.11.2021, the coordinate Bench of this Court had directed thus in paragraph 17 of the said order: – “Since the appellant is in custody for over two years, the Trial Court is directed to conduct the trial expeditiously and conclude the same as early as possible.” 9. We are at pains to note that as of now the trial is not concluded despite lapse of about one and half years from the passing of the judgment directing expeditious disposal of the trial. It is reported to us by the learned counsel for the appellant and not disputed by the learned Prosecutor that as of now only two witnesses are examined by the prosecution and they are P.W.1 Nagina Kumar, A.S.I., Bihar Police and P.W. 2 Vijay Kumar Yadav, Sub-Inspector of Bihar Police. This second prosecution witness was examined way back on 28.9.2022. It is further reported that the N.I.A. Court at Patna where the subject trial is pending is still vacant. Thus, we are unable to comprehend the time which may take for disposal of the trial in which as of now 174 prosecution witnesses are yet to be examined. 10. This second prosecution witness was examined way back on 28.9.2022. It is further reported that the N.I.A. Court at Patna where the subject trial is pending is still vacant. Thus, we are unable to comprehend the time which may take for disposal of the trial in which as of now 174 prosecution witnesses are yet to be examined. 10. Now comes the bar for entertaining bail application in the light of provisions of Section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967 which reads thus: – “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.” 11. Bare perusal of this provision makes it clear that the person accused of an offence under the U.A.P.A. Act cannot be released on bail unless and until opportunity of hearing is accorded to the Prosecutor. Such bail application has to be rejected, if on perusal of the case diary and Police report made under Section 173 of the Cr.P.C., the Court is of the opinion that there is reasonable grounds for believing that the accusation against such an accused person is prima facie true. The question which falls for consideration is whether this provision puts a complete embargo on power of the Court to grant bail to the person accused of the offence punishable under the U.A.P.A. Act. In the matter of Union of India vs. K.A. Najeeb reported in (2021) 3 Supreme Court Cases 713, in paragraph 18 of the said judgment the Hon’ble Supreme Court has observed thus: – “Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent’s prayer. Had it been a case at the threshold, we would have outrightly turned down the respondent’s prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant’s right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent’s rights guaranteed under Part III of our Constitution have been well protected.” 12. Thus, in the light of these observations of the Hon’ble Supreme Court vis-a-vis the facts of the instant case wherein the trial is not likely to be completed in few more years, we have no alternative but to release the appellant on bail. 13. Though the learned Prosecutor has relied on judgment in the case of Najeeb (supra), the observations made therein are not helpful for the prosecution as in the case in hand as of now 174 prosecution witnesses are yet to be examined and the concerned Court is reportedly vacant. Hence, the following orders: I. The appeal is allowed. II. The impugned order dated 18.10.2022 passed by the learned Special Judge, NIA, Patna, in Special Case No. 02 of 2019, arising out of R.C.Case No. 05 of 2019, thereby rejecting the bail application of the appellant is quashed and set aside. III. Appellant/accused Tripurari Singh @ T. P. Singh in Special Case No. 02 of 2019, arising out of R.C.Case No. 05 of 2019, pending on the file of Special Judge-N.I.A., Patna, for the offences punishable under Sections 414, 467, 468, 471 and 474 of the Indian Penal Code as well as Sections 25(1-a), 25(1- A), 25(1-AA), 25(1-B)(a), 26, 29 and 35 of the Arms Act so also under Sections 16, 17, 18, 18B and 19 of the Unlawful Activities (Prevention) Act, 1967, is directed to be released on bail on executing P.R. bond of Rs.50,000/- (Rupees Fifty Thousand) and on furnishing two sureties of the like amount each to the satisfaction of learned Trial Court. IV. IV. As a condition of this order the appellant should attend each and every date fixed for hearing by the learned trial Court and his absence on two successive dates should result in cancellation of his bail bond and taking him in custody by the learned trial Court. V. The appellant should not commit any offence while enjoying liberty in terms of this order. VI. The appellant should not tamper prosecution evidence in any manner and he should not extend any threat, promise of inducement to the persons acquainted with the facts of the accusation against him so as to dissuade him from disclosing such facts to the Court or to any police officer. 14. The appellant/accused to remove all office objections forthwith and the Registry to issue the certified copy of this order only after removal of office objections by the appellant/accused.