TaxTMI 
TaxTMI 
TaxTMI 
2011 (7) TMI 1409
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....l Section) is non-bailable and the facts and circumstances of the case do not warrant release of the accused on bail in case of such an offence ? (3) Whether cancellation of earlier bail is necessary if the Court finds that it lacks jurisdiction to grant bail in respect of the subsequently added penal Section ? (4) In the event of addition of a penal Section to a case, as indicated hereinabove, is it the duty of the Investigating Officer to inform the Court, which had granted bail to the accused, or on whose order, the accused stood released on bail, as regards the addition of the penal Section, providing him thereby with an opportunity to apply for bail in respect of the added penal Section, or, whether the police can arrest such an accused on the basis of the newly added penal Section without informing the Court, which had granted bail to the accused, or without giving any opportunity to the accused, who was already on bail, to apply to the Court for bail in respect of the penal Section, which stands subsequently added in such a case, or whether the accused needs to be informed, in such a case, as regards the addition of the penal Section, so that the accused can, in respec....
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....anisational activities with a view to wage war against the State and that accordingly, he along with available forces, under the guidance of the Deputy Superintendent of Police (Headquarters), Haflong, started checking of vehicles coming from the direction of Haflong and proceeding towards Diyungmukh. It had been further stated, in the Ejahar, that on 10.02.2009, at about 3.30 P.M., during checking of vehicle No. AS-08-5133 (a Mahindra Scorpio vehicle), at Thaijowari, wherein Golon Daulagupu, a member of NC Hills Autonomous Council, and Sri Jibangshu Paul were travelling, recovered cash amount of Rs. 32,11,000/- from the possession of Jibangshu Paul, who failed to give any satisfactory explanation with regard to carrying of such huge amount of cash with them indicating thereby that the cash, which had been found in the possession of Jibangshu Paul, was being carried to be handed over to the DHD(J) extremists and, as such, they had committed the offence of criminal conspiracy to wage war against the State with the help of DHD(J) extremists and the cash was accordingly seized in presence of witnesses. Based on this Ejahar and treating the same as First In-. formation Report, Diyungmu....
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....ey filed petitions to allow them to remain on previous bail. These petitions were admitted for hearing. (vii) On 03.11.2010, an application was filed by the NIA, in the Court of learned Special Judge, NIA, stating to the effect, inter alia, that the accused persons, including the present appellant, had not approached any Court for grant of bail in respect of offences under Sections 16, 17, 18, 19 and 20 of the UA (P) Act, 1967, which were added on 20.02.2010, and, therefore, they be taken into judicial custody till such time the accused persons (including the present appellant) furnish appropriate bail order in respect of all the penal sections, which they stood charged with. (viii) A written objection to the said application, dated 03.11.2010, was filed by the present appellant. In the said written objection, it was contended that after appearance, he had been granted the privilege to remain on his previous bail by the Court of the learned Special Judge. It was further stated therein that his name did not figure in the list of 13 persons in respect of whom Sections 16, 17, 18, 19 and 20 of the UA (P) Act and Section 25(1)(d) of the Arms Act, 1959, were added. Dur....
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.... with further observation that they may apply, in accordance with law, for fresh bail for the offences under Sections 16, 17, 18, 19 and 20 of the UA (P) Act. 4. During the course of discussion, in his order, dated 20.12.2010, while rejecting bail, the learned Special Judge opined that considerations, which had prevailed before the Court at the earlier point of time, were in respect of less heinous offences and those considerations would be different from the considerations, which would weigh upon the Court at the time of consideration of enlarging an accused, on bail, in connection with more serious offences, such as, offences under Sections 16, 17, 18, 19 and 20 of the UA (P) Act, 1967. 5. We have heard Mr. B.K. Mahajan, learned counsel, for the appellant, and Mr. D.K. Das, learned Standing Counsel, NIA. Having regard to the questions that have arisen for consideration in this appeal, this Court appointed Mr. N. Dutta, learned Senior counsel, as Amicus Curiae, and we have had the benefit of hearing him too. PRINCIPLES GOVERNING, ORDINARILY. GRANTING OF BAIL 6. Generally, while considering an application for bail in a non-bailable case, the factors, to be considered, a....
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....f the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati v. NCT, Delhi (2001)4 SCC 280 : 2001 SCC (Cri) 674 and Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 : 1978 SCC (Cri)41 : AIR 1978 SC 179. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528 : 2004 SCC (Cri) 1977SCC pp. 535-36, para 11 11. The law in regard to grant or refusal of bail is very well settled. The court granting ba....
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....e concluding why bail was being granted did not have to be indicated. 10. The requirement of the law to assign prima facie reasons for granting bail has been insisted upon in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. reported in (2004) 7 SCC 528, too, wherein the Court observed, referring to Puran's case (supra), thus: 18. We agree that a conclusive finding in regard to the points urged by both the sides is not expected of the court considering a bail application. Still one should not forget, as observed by this Court in the case Puran v. Rambilas SCC p. 344, para 8 Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken.... That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated. We respectfully agree with the above dictum of this Court. We also feel that such expression of prima facie reasons for granting bail is a requirement of law in cases where such orders on bail application are appea....
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....a court, while granting or refusing bail, must assign the reasons for its decision. The reasons assigned, however, must not be an elaborate discussion of the materials collected so that the accused is not prejudiced and his case must not appear to have been prejudged. There is, therefore, a need, on the part of the court, to maintain a balance between the need to assign reasons for refusing or granting bail, on the one hand, and the caution to be applied, on the other, to ensure that the assignment of reasons should not be so elaborate that the case of the accused appears to have been prejudged. DISTINCTION BETWEEN GRANT OF BAIL AND CANCELLATION THEREOF 14. What, now, needs to be taken note of is that the factors, governing grant of bail, are different from the factors, which are, generally, taken into account for the purpose of cancellation of bail. This distinction has been succinctly brought out by the Supreme Court in Dolat Ram v. State of Haryana (1995) 1 SCC 349, in the following words: 4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail, so granted, have to be considered and dealt with on different basis. Very cogent and ....
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....CANCELLED IF ACCUSED HAS NOT ABUSED HIS LIBERTY OF BAIL? 17. A microscopic reading of the observations of the Supreme Court, in Dolat Ram's case (supra), as reproduced above, clearly brings out one aspect of law, namely, that the grounds of cancellation of bail, which have been enumerated, in Dolat Ram's case (supra), are general in nature and that these conditions are only illustrative and not exhaustive inasmuch as the Court has observed, in Dolat Ram (supra),..Generally speaking, the grounds for cancellation of bail, broadly illustrative and not exhaustive.. 18. The question, therefore, is as to what the Supreme Court meant when it observed that the grounds, which are generally considered for cancellation of bail, are 'illustrative and not exhaustive'. This aspect of law, now, needs examination in the present appeal. 19. Having taken into account the general conditions of granting of bail and the principles, governing cancellation of bail, in the sense that bail, if granted, cannot, ordinarily, be cancelled unless there are supervening circumstances making it no longer conducive for effective investigation or for fair trial to allow the accused to enjoy ....
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.... bail to an accused, where bail ought not have been granted, it is still competent for the State to move the High Court to invoke its powers under Section 439(2) Cr. PC for cancellation of such bail even though there is no allegation of misuse of the liberty of bail by the accused or even when no new circumstances warranting cancellation of bail might have arisen. Thus, it is possible for the High Court to cancel bail of an accused, where bail has been granted by a Magistrate or a Court of Session in the circumstances in which bail ought not have been granted. Such cancellation is possible even if there is no new circumstances justifying cancellation of bail in the sense that the accused has misused his liberty of bail. Such cancellation of bail would be, in fact, cancellation of bail on merit by virtue of the provisions of Section 439(2) Cr. PC and not because of misuse of liberty on bail. 22. As already indicated above, the Supreme Court, in Dolat Ram v. State of Haryana (1995) 1 SCC 349, pointed out, though not explicitly, yet cogently, that in order to cancel bail, though very cogent and overwhelming circumstances are necessary and though, generally speaking, the grounds for....
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....of the liberty of bail by the accused. 25. The Full Bench, referring to Gurcharan Singh (supra), pointed out that the approach, in such a case, should be whether an order, granting bail, was vitiated by any serious infirmity for which it was right and proper for the High Court to interfere with the interest of justice.. 26. The Full Bench, referring to Gurcharan Singh (supra), pointed out that the approach, in such a case, should be whether an order, granting bail, was vitiated by any serious infirmity for which it was right and proper for the High Court to interfere with the interest of justice. 27. What emerges from the above discussion is that it is permissible for the High Court to cancel bail by invoking its jurisdiction under Section 439(2) Cr.PC if a Magistrate or Court of Session grants bail to an accused, in a case, by ignoring the relevant materials or on consideration of irrelevant factors and thereby allowed the accused to go on bail in a case, where bail ought not to have been granted. The High Court can cancel such bail even if no new circumstances exist indicating interference with the investigation of the case by the accused by misusing his liberty of bail.....
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....ernational ramifications, which India has to fight vis-Ã -vis the limitations on the powers of the Special Court to grant bail and the High Court's jurisdiction and powers in such matters, the present appeal, seeking to get set aside the impugned order of the learned Special Court refusing to grant bail to the accused-respondent, Jibangshu Paul, needs to be examined. WHETHER THE POWER OF THE SPECIAL COURT. CONSTITUTED UNDER THE NIA ACT. TO GRANT BAIL IS GOVERNED BY SECTION 437 CrPC OR SECTION 439 CrPC ? 33. On a close reading of Section 16 of the NIA Act, what becomes clear is that notwithstanding the fact that, according to Section 16(3) of the NIA Act, a Special Court, for the purpose of trial of a scheduled offence, has all the powers of a Court of Session and shall try such offence 'as if it were a Court of Session', the Special Court does not become a Court of Session inasmuch as it is only the power of trial of a Court of Session that the Special Court, by virtue of Section 16(3), entitled to exercise. In other words, the expression, 'as if it were a Court of Session', which occurs in Section 16(3), really reflects that it is only the procedure f....
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.... case, in terms of Section 209 of the Code, is committed to it, for, Section 193 states that a Court of Session cannot take cognizance of an offence as a Court of original jurisdiction except when the Code or the special law provides otherwise. Thus, a Court of Session could not have taken cognizance of an offence, under the NIA Act, without the case having been committed to it; but, as the NIA Act provides for taking cognizance of an offence by a Court of Session, without the case being committed to it, the Court of Session can take cognizance of offence, under the NLA Act, as the Court of original jurisdiction. Such a deviation is possible even in respect of a specified offence under the Indian Penal Code. For instance, sub-Section (2) of Section 199 of the Code provides that when an offence, falling under Chapter XXI of the IPC, is alleged to have committed against a person, who, at the time of such commission, is the President of India, Vice-President of India, Governor of a State, the Administrator of a Union territory or a minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State....
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....de, issue processes. 39. We may pause here to point out that Section 190(1) of the Code prescribes three distinct modes of taking of cognizance by a Magistrate, the modes being: (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 40. Coupled with the above, Section 193 read with Section 209 of the Code provides for a fourth mode of taking cognizance, namely, by way of commitment to the Court of Session. 41. Thus, Section 190 read with Sections 193 and 209 of the Code provides, broadly speaking, four distinct modes of taking of cognizance, three of the modes of taking cognizance being confined to a Magisterial Court and the fourth mode of taking cognizance being confined to the Courts of Session, namely, (i) upon receipt of a complaint of facts, which constitute such offence, (ii) upon a police report of such facts (iii) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed, and (iv) by way of commitm....
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.... PC Act, 1988, are read together, what becomes clear is that Section 5 empowers a Special Judge to take cognizance of offence without the accused having been committed to it for trial and, though it shall follow the procedure prescribed by the Code for the trial of warrant cases by the Magistrates, the Court of the Special Judge shall be deemed to be a Court of Session. Thus, though a Special Judge, appointed under the PC Act, 1988, and functioning as the Court of the Special Judge, shall be deemed to be a Court of Session, it does not suffer from the limitations, which a Court of Session suffers from inasmuch as Section 193 of the Code disallows the Court of Session from taking cognizance of offence without case having been committed to it for trial; whereas a Court of Special Judge, in the PC Act, 1988, can take cognizance without the case being committed to it for trial. In other words, the Court of Special Judge, under the PC Act. 1988. acts and functions as a Court of original jurisdiction and not as a Court of Session, though the Court of the Special Judge shall, otherwise, be deemed to be a Court of Session. This apart, the PC Act, 1988, disempowers the Special Judge from ta....
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....proposition, that a Special Court is not a Court of Session, is also supported by the fact that the NIA Act empowers a Special Court to try certain classes of offences, in a summary way, in the same manner as is done by a Magistrate in exercise of his powers under Section 263 and 265 of the Code. 47. The above aspect of law will become transparent when one considers the case of A. R. Antulay v. R. S. Nayak, (1984) 2 SCC 500. In A. R. Antulay (supra), the question had arisen as to whether a Special Court, constituted under the P. C. Act, 1952, could take cognizance on the basis of a private complaint and, in this regard, it was urged, inter alia, before the Supreme Court, that since a Court of Special Judge has all the trappings of the Court of Session, it cannot take cognizance on the basis of a complaint, as provided by Section 190 of the Code, because, Section 190 of the Code confers power to take cognizance only on the Magistrate in any of the three modes prescribed therein and Section 190 cannot be resorted by a Court of Session to be able to take cognizance of offence on the basis of a 'complaint'. The Constitution Bench was, therefore, in A. R. Antulay (supra), cal....
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.... privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof, and any pardon so tendered shall, for the purposes of Sections 339 and 339-A of the Code of Criminal Procedure, 1898, be deemed to have been tendered under Section 338 of that Code. (3) Save as provided in sub-section (1) or sub-section (2) the provisions of the Code of Criminal Procedure, 1898, shall, so far as they are not consistent with this Act, apply to the proceedings before a special Judge and for the purposes of the said provisions, the Court of the special Judges shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor. (3-A) In particular, and without prejudice to the generality of the provisions contained in sub-section (3) the provisions of the Code of Criminal Procedure, 1898, shall so far as may be, apply to the proceedings before ....
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....urt, which at least was not disputed, and jurisdiction is conferred upon the presiding officer of the Court of Special Judge to take cognizance of offences simultaneously excluding one out of the four recognised modes of taking cognizance, namely, upon commitment by a Magistrate as set out in Section 193, the only other method by which the Court of Special Judge can take cognizance of an offence for the trial of which it was set up, is any one of the remaining three other methods known to law by which a criminal court would take cognizance of an offence, not as an idle formality but with a view to initiating proceedings and ultimately to try the accused. If the language employed in Section 8(1) is read in this light and in this background that a Special Judge may take cognizance of offence without the accused being committed to him for trial, it necessarily implies that the Court of Special Judge is armed with power to take cognizance of offences but that it is denied the power to take cognizance on commitment by the Magistrate. This excludes the mode of taking cognizance under Section 193. Then remains only Section 190 which provides various methods of taking cognizance of offence....
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....o the classes of courts, which Section 6 of the Code provides for, and it is not necessary that a Special Court has to be either a Court of Magistrate or a Court of Session. Far from this, a Special Court, according to A. R. Antulay (supra), may be a combination of both. Shorn of all embellishments, the Court of a Special Judge, Supreme Court observed, is a court of original criminal jurisdiction and, except those powers and functions, which are specifically conferred on such a court, or, specifically denied, it has to function as a Court of original criminal jurisdiction not being hidebound by the terminological status description of Magistrate or a Court of Session and that it will enjoy all the powers, which a court of original jurisdiction enjoys, save and except the ones, which are specifically denied. 52. The Supreme Court reiterates, at paragraph 28 of A. R. Antulay (supra), that the Court of Special Judge has to be treated as a court of original criminal jurisdiction and shall have all the powers, which a court of original criminal jurisdiction has under the Code, except those powers, which are specifically excluded. Having examined the matter from different angles, the ....
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.... the provisions therein included catered to both the types of cases coming before the Magistrate, namely, upon police report or otherwise than on a police report. Chapter XX prescribes the procedure for trial of summons cases by Magistrates and Chapter XXI prescribes the procedure for summary trial. Now that a new criminal court was being set up, the Legislature took the first step of providing its comparative position in the hierarchy of courts under Section 6 Crpc by bringing it on level more or less comparable to the Court of Session, but in order to avoid any confusion arising out of comparison by level, it was made explicit in Section 8(1) itself that it is not a Court of Session because it can take cognizance of offences without commitment as contemplated by Section 193 Crpc. Undoubtedly in Section 8(3) it was clearly laid down that subject to the provisions of subsections (1) and (2) of Section 8, the Court of Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors. In contra-distinction to the Sessions Court this new court was to be a Court of original jurisdiction. The Legislature then proceeded to specify which ou....
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.... approach would strangulate the functioning of the court and must be eschewed. Shorn of all embellishment, the Court of a Special Judge is a Court of original criminal jurisdiction. As a Court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the court. Except those specifically conferred and specifically denied, it has to function as a Court of original criminal jurisdiction not being hidebound by the terminological status description of Magistrate or a Court of Session. Under the Code it will enjoy all powers which a Court of original criminal jurisdiction enjoys save and except the ones specifically denied. "28. Section 9 of the 1952 Act would equally be helpful in this behalf. Once Court of a Special Judge is a Court of original criminal jurisdiction, it became necessary to provide whether it is subordinate to the High Court, whether appeal and revision against its judgments and orders would lie to the High Court and whether the High Court would have general superintendence over a Court of Special Judge as it has over all criminal courts as enumerated in Section 6 of the Code of Criminal Procedure. T....
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.... a Court of Session. 55. Thus, as far as the trial of scheduled offences by the Special Court, NIA, are concerned, the Special Court will have the power of the Court of Session as far as such power is, in the light of the modified provisions of the NIA Act, exercisable as regards the procedure of trial by the Special Court or the Court of Session, as the case may be. But, so far as taking of cognizance of Scheduled offences is concerned, the Special Court's role is of the court of original criminal jurisdiction. 56. Notwithstanding, therefore, the fact that while functioning as a trial Court, the Special Court or, in the absence of constitution of a Special Court, a Court of Session shall be treated 'as if it were a Court of Session', the fact of the matter, in the light of A. R. Antulay (supra), remains that irrespective of the fact as to whether a Special Court has been constituted or not under the NIA Act, a Special Court, if constituted, or the Court of Session, if the Special Court has not been constituted, is, under the NIA Act, not a Court of Session, this Special Court does not suffer from the trappings of a Court of Session and, while trying an offence, i....
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....Court, constituted under the NDPS Act. In order to, however, enable the investigating agency to produce an accused in connection with an offence under the NDPS Act, before a Court other than a Special Court specific provisions, in the form of Section 36(a)(b) in the NDPS Act, have been made, which empower a Magistrate to remand to custody such an accused for the initial period of 15 days. But, thereafter, the accused can be detained only on the basis of remand order passed by the Special Court or where the Special Court, under the NDPS Act, has not been constituted, by the Court of Session. 58. As a corollary, what one can very safely conclude is that unless a 'special law' provides a Magistrate to pass orders of remand despite the Special Court (if the Special Court has been constituted or the Court of Session, when a Special Court has not been constituted), no order of remand of such an accused can be made by a Magistrate except during the transit period as contemplated by Section 167(2-A) of the Code or where the statute itself provides for such production before some other authority, such as, a Judicial Magistrate, as in the case of NDPS Act. 59. Now, the question....
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.... less than seven years: Provided that the Court may direct that a person in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason. Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court: Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this subsection without giving an opportunity of hearing to the Public Prosecutor. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are no....
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....able grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered. 439. Special powers of High Court or Court of Session regarding bail.- (1) A High Court or Court of Session may direct - (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: 61. From a careful reading of the provisions contained in Section 437(1), what becomes transparent is that Section 437(1) gives power to grant bail to a court 'other than the High Court or Court of Session'. Admittedly, a Special Court, under the NIA Act, is not a Court of Session and even the Court of Session, while acting as the Special Court under the NIA Act, does not, as already discussed above, act as a Court of Session. The Special Court is also not a ....
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.... 63. Unlike, therefore, the powers, which a Court of Session enjoys, while considering a bail application, under Section 439, the Special Court runs the limitations, which are imposed by Section 437. Resultantly, therefore, a Special Court cannot enlarge a person on bail except to the extent as provided in Section 437. Apart from the limitations imposed on the powers of a Special Court as are prescribed by Section 437, even the special statute, which creates the Special Court, can impose additional limitations. No wonder, therefore, that the power to grant bail, in the case of NDPS, is much more restricted than what Section 437 provides inasmuch as Section 37 of the NDPS imposes further limitations, on the Special Court, in matters of granting bail and such limitations would apply to a Sessions Judge even if he acts as a Special Court under the NDPS Act, for, while exercising the powers of a Special Court, the Sessions Judge does not act or function as a Court of Session, but as a Court of ordinary criminal jurisdiction. 64. We may pause, at this stage, to point out that with the object of prevention of, and for coping with terrorist and disruptive activities and for matters co....
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....thereof, which provided that no appeal or revision shall lie before any court, there was exclusion of jurisdiction of the High Court in regard to the proceedings before a Designated Court. 67. It was also urged before the Supreme Court, in Usmanbhai Dawoodbhai Memon (supra), that since a Court of Session, in the absence of constitution of a Designated Court, can exercise the powers of the Designated Court, the source of power to grant bail is Section 439 and not Section 437 of the Code. This was resisted by the Government by contending that the source of power of a Designated Court is really traceable to Section 437 and not Section 439 and that a Designated Court is nothing, but, 'a Court other than the High Court or the Court of Session', an expression, which appears in sub-Section (1) of Section 437. This construction was accepted by the Supreme Court in Usmanbhai Dawoodbhai Memon (supra). The Supreme Court pointed out, in Usmanbhai Dawoodbhai Memon (supra), that the use of ordinary courts does not imply use of standard procedure too. Just as the legislature can create a special court to deal with a special problem, it can also create new procedures within the existing....
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.... legal fiction, contained in Section 14(3), must be restricted to the procedure to be followed for trial of an offence under the TADA, i.e., trial must be in accordance with the procedure prescribed, by the Code, in respect of a trial before a Court of Session in so far as it is applicable. The relevant observations, made in this regard, which appear at para 18, read asunder: 18. No doubt, the legislature by the use of the words "as if it were" in Section 14(3) of the Act vested a Designated Court with the status of a Court of Session. But, as contended for by Learned Counsel for the State Government, the legal fiction contained therein must be restricted to the procedure to be followed for the trial of an offence under the Act i.e. such trial must be in accordance with the procedure prescribed under the Code of the trial before a Court of Session, insofar as applicable. We must give some meaning to the opening words of Section 14(3) "subject to the other provisions of the Act" and adopt a construction in furtherance of the object and purpose of the Act. The manifest intention of the legislature is to take away the jurisdiction and power of the High Court under the Code wi....
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....Act by treating terrorism as a special problem and created a Special Court to deal with such problem, the fact that even under the TADA, the ordinary courts are being used under the scheme of the Act, it does not, as a corollary, imply that since the ordinary courts are being used, standard procedure, which ordinary courts adhere to, must be followed by the Special Court too. The Supreme Court has pointed out that when the legislature can create a Special Court to deal with a special problem, it can also create a new procedure within the existing system and, in the case of TADA, while the Parliament, in its wisdom, has adopted the framework of the Code, it has chosen not to apply the procedures of the Code in its entirety and since the jurisdiction and the powers are derived by a Designated Court from the TADA, it is the TADA, which should decide the question as to whether a High Court can invoke its powers, under Section 439 and/or 482 of the Code, for the purpose of considering an application for bail, or not. The relevant observations, appearing at para 17, read: 17. The legislature by enacting the law has treated terrorism as a special criminal problem and created a sp....
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....ces limitations on such powers. This is implicit by Section 20(9) which in terms provides that the limitations on granting of bail specified in sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail. It, therefore, follows that the power derived by a Designated Court to grant bail to a person accused of an offence under the Act, if in custody, is derived from the Code and not from Section 20(8) of the Act. 74. What emerges from the above discussion is that it is the Special Court under the NIA Act, where an accused is required to be produced if he is arrested in connection with an offence punishable under the NIA Act and, upon his production, it is the Special Court, which shall have the power to grant bail. The source of power of the Special Court to consider an application for bail is traceable to, and governed by, the provisions of Section 437 of the Code and while considering such an application for bail, the Special Court will not exercise the power of bail as if it is considering an application for bail under Section 439 and, consequently, the Special Court would have all the limitations, which a M....
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....as been guilty of an offence punishable with death or imprisonment for life. Thus, Section 437(1) imposes limitation on the Magistrate's power to grant bail to a person accused of, or suspected of the commission of, an offence punishable with death or imprisonment for life if there appear reasonable grounds for believing that he has been so guilty. 79. What is, however, extremely important to note is that the legislature, whale imposing limitation by Section 437(1) on the powers of the Magistrate, has expressly excluded, from the purview of this limitation, the Court of Session and the High Court Having excluded from the embargo of the limitation, which Section 437(1), imposes on a Magistrate's power to grant bail, Section 439(1) Cr.PC confers special powers on the High Court and the Court of Session to grant bail even when there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. In other words, unlike the limitations, which Section 437(1) imposes on the Magistrate's power to grant bail, there is no limitation imposed under Section 439 Cr. PC against granting of bail by the High Court or the Cour....
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....air trial, the Court will not decline to grant bail to a person, who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has, ordinarily, no option in the matter, but to refuse bail subject, however, to the first proviso to Section 437(1) Crpc and in a case, where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence. X X X 24. Section 439(1) Crpc of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1), there is no ban imposed under Section 439(1) Crpc against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is. h....
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.... be had for the purpose of either obtaining bail or to get the bail, already granted, cancelled. 82. The scheme of the NIA Act, if analysed carefully, shows that accused has to apply for bail, if he so chooses, to the Special Court and if bail is refused by the Special Court, then and then only, the accused may prefer an appeal to the High Court in terms of Section 24(1) against an order refusing to grant bail. In other words, without having applied for bail and the prayer for bail having been disallowed by the Special Court, a person, who is accused of having committed a scheduled offence covered by the scheme of the NIA Act, cannot directly apply for bail to the High Court under Section 439(1) or Section 24(1) of the NIA Act. Similarly, if the Special Court grants bail, the State may prefer an appeal to the High Court, in terms of Section 24(1), seeking cancellation of such bail. Hence, without applying for bail to the Special Court, an accused, who is arrested, cannot apply for bail to the High Court by taking recourse to Section 439 Cr.PC. 83. An order refusing or granting bail, in a case under the Prevention of Terrorist Activities Act, 1987, too, was an appealable order....
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....rder of the Special Court and unless there is an order of the Special Court refusing bail, the accused will have no right to file an appeal before the High Court praying for grant of bail to them. Existence of an order of the Special Court is, therefore', a sine qua non for approaching the High Court. 84. Referring to the above observations, made in Salimbhai Abdulgaffar Shaikh (supra), one of us (Ansari, J), in Redaul Hussain Khan v. State of Assam 2009 (3) GLT 855, held as under: 98. In the light of the observations made above, it becomes clear that an appeal is a proceeding to rectify an erroneous decision of a Court both on facts as well as on law. An order, granting or refusing bail, could have been, in the light of the provisions of Section 34(4), examined on merit by the High Court without any other fetters and while considering a question of cancellation of bail the general principles, governing Section 439(2) of the Code, would not come in the way. The Apex Court, in Salimbhai Abdulgaffar Shaikh (supra), while laying down that the scheme for appeal, under the POTA, is in contradistinction to that of the Code, pointed out that an appeal can lie only against ....
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....sh and Anr. v. State of Assam and Ors (2010) 4 GLT 1, concluded that once the investigation, under the scheme of the NIA Act, is taken over by the Agency, it is the Special Court, which can authorize further detention of an arrested accused. Observed the Court, in Jayanta Kumar Ghosh (supra), thus, When such an arrested accused applies for bail to the Special Court, the source of power to consider such an application for bail lies in Section 437 and not Section 439 of the Code-Even a High Court cannot invoke its powers, under Section 439. to grant bail if it has been refused by the Special Court nor can the High Court, by resorting to its power under Section 439. cancel bail if bail has been granted to such an accused by the Special Court. If the bail has been refused or granted by the Special Court, the aggrieved party may, however, prefer an appeal, in terms of Section 21(4). to the High Court. Such an appeal has to be heard by a Division Bench of the High Court and in such an appeal, the merit of the order, granting or refusing bail, can be questioned. 86. We are in complete agreement with the observations, made in Jayanta Kumar Ghosh (supra). Agreeing, thus, with th....
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....ble grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter PV and/or Chapter VI of the UA (P) Act is prima facie true, such accused person shall not be released on bail or on his own bond. 88. Thus, if the Special Court, on perusal of the case diary, forms an opinion that there are reasonable grounds for believing that the accusation, against an accused person, of the commission of offences or offences under Chapter IV and/or Chapter VI is prima facie true, it will not remain within the powers of the Court to grant bail in such a case. This position is further 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 grating of bail. The logical conclusion would, therefore, be that in a case, investigated by the agency, if the Special Court forms an opinion that there are reasonable grounds for believing that the accused has committed an offence punishable with death or imprisonment for life, the Special Court would h....
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.... limitations on granting of bail in addition to the limitations under the Code of Criminal Procedure as expressly provided in sub-section (2) of Section 37. These limitations on granting of bail specified in sub-section (1) of Section 37 are in addition to the limitations under Section 437 of the Code of Criminal Procedure and were enacted only for this purpose; and they do not have the effect of excluding the applicability of the proviso to sub-section (2) of Section 167 Cr. P. C. which operates in a different field relating to the total period of custody of the accused permissible during investigation. 91. From what has been concluded, in Para 13, in Thamisharasi's case (supra), it becomes clear that the limitation, imposed by Section 37 of the NDPS Act, would, to the extent that it is inconsistent with the provisions of Section 437 Cr.P.C., prevail upon the corresponding provisions of the Code of Criminal Procedure and the limitation, so imposed on granting bail, would be in addition to the limitation, which the Code of Criminal Procedure already places. Thus, the limitation, imposed by the proviso to Section 43D(5), shall, to the extent that it is inconsistent with Secti....
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.... (64) Let us, therefore, ascertain as to what the word 'prima facie' means. The word, prima facie, has been described in the Black's Law Dictionary as: "sufficient to establish fact or raise a presumption unless disproved or rebutted". Rebuttable presumption means an inference drawn from certain facts that establish a prima facie case, which may be overcome by the introduction of contrary evidence. Rebuttable resumption also means prima facie presumption or disputable presumption or conditional presumption. (65) The Concise Dictionary of Collins has defined, prima facie, as an adjective thus: "at first sight; as it seems at first." And prima facie evidence as an evidence that is sufficient to establish a fact or to raise a presumption of the truth unless controverted. (66) Wharton's Law Lexicon defines that a prima facie case does not mean a case proved to the hilt, but a case, which can be said to be established if the evidence, which is led in support of the same, are believed. (67) The Supreme Court, in Marlin Burn Ltd. v. R. N. Banerjee 1958 SCR 514 at p. 530 (AIR 1958 SC 79 at p. 85), observed thus: A prima facie ca....
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....n of offence by the accused or not. No exercise is required to be undertaken by the court to determine the truthfulness or veracity of the accusations. However, when the word, 'prima facie', is coupled with the word, 'true', it implies that the court has to undertake an exercise of cross-checking the truthfulness of the allegations, made in the complaint, on the basis of the materials on record. If the court finds, on such analysis, that the accusations made are inherently improbable, or wholly unbelievable, it may be difficult to say that a case, which is prima facie true, has been made out. (74) The term 'true' would mean a proposition that the accusation brought against the accused person, on the face of the materials collected during investigation, is not false. The term false again would mean a proposition, the existence of which cannot be a reality. While arriving at a finding whether there are reasonable grounds for believing that the accusation against the accused is prima facie true or false, the Court can only look into the materials collected during investigation, and on its bare perusal should come to a finding that the accusation is inh....
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....e true, such materials would be enough to attract the bar imposed by the proviso to Section 43D(5). (77) To put it a little differently, the Special Court is required to examine the materials, collected during investigation, assuming the same to be true and if, such materials, on such examination and consideration, are found to make out a case against the accused, the Special Court Has to determine if there is any such thing in the materials, so collected, which would make the case, which has been made out against the accused, as a wholly improbable case. If the Special Court, on undertaking such an exercise, finds reasonable grounds to infer that the case, which has been made out against the accused, is not wholly improbable, the case would be treated as a case, which is sufficient for the Special Court to form an opinion that there are reasonable grounds to believe that the accusations, made against the accused, are prima facie true. (78) The expression, 'reasonable ground', means something more than prima facie ground, which contemplates a substantially probable case for believing that the accused is guilty of the offence (s) alleged. Under Section 437 ....
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....on (8) of Section 20, is in addition to the restrictions, which the Code of Criminal Procedure, or any other law, in forced imposes. (81) There are no corresponding provisions, in the NIA Act, as were present in Section 20(8) and Section 20(9) of the TADA Act. Notwithstanding, however, the fact that the provisions (as contained in sub-Section (8) and/or sub-Section (9) of Section 20 of the TADA Act) no longer find place in the NIA Act, the fact, remains that even under the scheme of the NIA Act, the Special Court, as already discussed above, is a 'court' other than the High Court and Court of Session. In such circumstances, the limitations, imposed by Clauses (i) and (ii) of sub-Section (1) of Section 437 CrPC, are applicable to the Special Court too. In addition thereto, when a case falls within the ambit of the proviso to Section 43-D(5), there would be an additional bar, on the part of the Special Court, to release an accused on bail, the bar being that the Special Court shall not release the accused on bail or on his own bond if the Court, on perusal of the case diary or the report made under Section 173 of the Code, is of the opinion that there are 'reason....
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....437 CrPC, the burden is on the prosecution to show existence of reasonable ground for believing that the accused is guilty. Hence, the presumption of innocence, which always runs in favour of the accused, is displaced only on the prosecution showing existence of reasonable ground to believe that the accused is guilty. (See Union of India v. Thamissharasi (1995) 4 SCC 190, and Union of India v. Shiv Shankar Kesari (2007) 7 SCC 798). 98. Coupled with the above, it is also noticeable that the proviso to Section 43-D(5) does not require a positive satisfaction by the court that the case against the accused is true. What is required is a mere formation of opinion by the court on the basis of the materials placed before it. The formation of opinion cannot be irrational or arbitrary. Such formation of opinion cannot be based on surmises and conjectures; but must rest on the materials collected against the accused. Since the presumption of innocence runs in favour of the accused, it logically follows that if there are, in given circumstances, grounds for believing that the case, against the accused, is true, a case of commission of offence under Chapter IV or Chapter VI of the UA (P) Ac....
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...., constituted under the NIA Act, does not suffer from the limitations, which the TADA Courts had by virtue of the provisions of Section 20(8), read with Section 20(9) thereof, the fact remains that the Special Court, not being a Court of Session or of the High Court, cannot exercise the powers of the Court of Session or High Court under Section 439 CrPC. Hence, while dealing with the scheduled offences, covered by the proviso to sub-Section (5) of Section 43-D, Special Court, constituted under the NIA Act, would suffer not only from the limitations imposed by Clauses (i) and (ii) of sub-Section (1) of Section 437, but also by the proviso to sub-Section (5) of Section 43-D of the UA (P) Act, 1967, wherever the provisions, contained in the proviso to Section 43-D(5), would be applicable. 102. In complete agreement with Jayanta Kumar Ghosh (supra), we may observe that when a case is registered and investigated, under the NIA Act, for commission of scheduled offences, the Special Court would be competent to deal with not only the scheduled offences, but also other offences under any law for the time being in force. Such a law would obviously include offences under the Indian Penal C....
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....ot mean that this period of 15 days cannot be repeated by successive remand. 105. In fact, during the course of trial, an accused can be kept in custody by resorting to the power under Section 309(2) exercisable by the Court. When the accused is on bail, he cannot be re-arrested on charge-sheet having been filed against him or on cognizance being taken. We are, however, confronting a situation, where an accused was on bail in respect of certain penal provisions and at the time of filing of charge-sheet, certain new penal provisions were added. Was, in such a case, the accused required to be enlarged on bail and whether, in such a case, the learned Special Judge had the power to remand the accused to custody, as has been done in the present case on the ground that the added penal provisions constitute more heinous offence. 106. Mithabhai Pashabhai Patel& Ors. v. State of Gujarat (2009) 6 SCC 332, which Mr. Mahajan heavily relies on, can be of no assistance to the facts of the present case inasmuch as Mithabhai Pashabhai Patel (supra) makes it clear that if an accused is already on bail, he cannot be remanded to custody on the charge-sheet being submitted. Nowhere it has been h....
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....vestigate into the cases. In terms of the said notification, the SIT could work out the modalities and norms for its enquiry/investigation including further investigation. During the course of such investigation, an Assistant Superintendent of Police sought for remand of the accused-appellant for a period of 14 days, the reason assigned being that the offences, under some provisions, were added and investigation, with respect to the said offences, had not been carried out. Hence, the accused were required to be given into police custody. Though the Sessions Judge rejected the application, the High Court allowed the SIT's application remanding the appellants to the custody of the SIT. It was the correctness of the order, passed by the High Court, which became the focal point for determination. 110. In answering the question so raised, the Supreme Court pointed out in Mithabhai Pashabhai (supra), that while directing constitution of the SIT, it had not directed reinvestigation. What the Supreme Court had directed was further investigation in terms of Section 173(8) of the Code. Pointing out that under Section 173(8), investigating agency can pray for remand to investigate furt....
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....t no bail order having been passed in respect of the added penal provisions, the accused-appellant was required to be taken into custody, particularly, when the accused-appellant had himself applied for an order allowing him to remain on previous bail in respect of the added penal provisions. 113. It may, now, be noted that the fact situation, in the present case, is akin to the case of Hamida v. Rashid @ Rasheed and Ors. (2008) 1 SCC 474, wherein the appellant, Hamida, had lodged an FIR, 13.6.2005, at Kotwali Police Station, Muzaffar nagar, alleging therein that when her husband, Balla, was participating in a Panchayat of their community, the four accused-respondents had attacked him with licensed as well as illegal arms exhorting that they would kill him. Accused Naushad had assaulted Balla with a long knife due to which Balla received serious injuries and the other accused fired from their respective weapons and, thereafter, ran away from the scene. On the basis of the FIR so lodged, a case was registered under Sections 324, 352 and 506 IPC and the injured Balla was rushed to the district Hospital, where he was medically examined and found to have sustained serious stab wound....
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....l and, hence, he may be allowed to continue on his previous bail even though the charge-sheet has been submitted for offences not only under Sections 120B, 121, 121-A IPC, which were the offences (when the accused-appellant had been allowed to go on bail), but also under Sections 16, 17, 18, 19 and 20 of the UA (P) Act, 1967, read with Section 25(1)(d) Arms Act, which have been subsequently added. 116. Reverting back to the case of Hamida (supra), it needs to be noted that the High Court had accepted the prayer of the accused-respondents by directing that if the applicants appear before the Court, they shall be allowed to go on bail. Apart from the question, which Hamida (supra), had raised, namely, whether it was permissible for the High Court to grant bail by taking resort to Section 482 Cr.PC., what was, in question, was: When the case had been converted to one under Section 304 IPC, whether the accused were required to go on bail afresh in respect of the offence under Section 304 IPC inasmuch as the accused had never been arrested for com-mission of an offence under Section 304 IPC and they had never been enlarged on bail under the said penal provision. The principal submiss....
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....d) Arms Act, were added in the charge-sheet filed against the accused-appellant, the accused-appellant ought to have, in the light of what has been laid down in Hamida (supra), applied for bail, on his appearance in the learned Special Court. In fact, the accused-appellant appears to have accepted this position of law inasmuch as he did apply to the learned Special Court, as already indicated above, for being allowed to go on previous bail. By legal fiction, the application, so made by the accused-appellant amounted to the accused-appellant surrendering to the jurisdiction of the learned Special Court seeking bail in respect of the additional offences and once he had surrendered to the jurisdiction of the Special Court, (which the Special Court, indeed, had), the Special Court was bound to consider as to whether the accused shall or shall not, in the facts and attending circumstances of the case, be allowed to go on bail treating the accused-appellant to have come into its custody, for, the question of granting of bail would not arise without the accused having been fallen into the custody of the Court concerned. In a case of present nature, what consideration would prevail upon a ....
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.... it could take the view that the prosecution has not been able to show that the case, against the accused-appellant, was prima facie untrue. 122. It needs to be noted, at this stage, that the accused was released on bail, on 26.02.2009, by the learned District Magistrate, NC Hills, acting as a Judicial Magistrate under Section 437 Cr. PC. barely within a period of two weeks, but what were the considerations for bail. The learned Magistrate had observed, for the purpose of granting bail, that the co-accused were on bail, the accused was ready to co-operate with the police during investigation and there is no chance of his absconding as he is a local person and that his release on bail is not likely to adversely affect investigation. The considerations, which prevailed upon the learned Magistrate, while granting bail, were contrary to the Full Bench decision of this Court in Re-State of Assam & Ors. (suo moto), reported in 2007 (1) GLT 330 (FB), which we have referred to, and which clearly lays down that if there is a 'reasonable ground' for holding that the accused has committed an offence, which is punishable by death or imprisonment for life, the Magistrate has no power....
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....of the offence, wherein he seeks to be released on bail, custody being sine qua non for consideration of bail. Consequently, when an accused is charge-sheeted with an added offence, he must surrender to the Court of competent jurisdiction and place himself to the custody of the Court seeking bail in respect of the added offence, for, in order to obtain bail in the newly added offence, the accused has to surrender to the Court and he would be, then, treated to be in the custody of the Court and it would be, then, for the Court to determine whether or not to grant him bail. In this regard, it has been pointed out, in Virendra (supra), and we agree, that Section 437 Cr.PC talks of "An offence" and plurality of words has been intentionally eschewed by the legislature in the formation of Section 437 Cr.PC, because each offence is to be tried separately and joinder of charges is an exception to this general rule. 126. In the light of the decision in Hamida (supra), which we have already discussed above, we are in complete agreement with the decision rendered in Bijendra (supra). 127. What logically follows from the above discussion is that apart from the fact that the appellant had....
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....jan Hojai (since absconder) is the Commander-in-Chief of DHD(J), who operates from outside India; whereas accused Jewel Garlosa is the Chairman of DHD(J), who, earlier, operated from Nepal, but established, later on, a hideout, at Bangalore, in conspiracy with accused-appellant, Ashringdaw Warisa @ Partho Warisa, who has, in turn, taken help of, and support from, accused Samir Ahmed. (ii) The ASDC, which is apolitical organization, came, with the support of DHD(J), to power in NCHAC in alliance with another national party. On coming to power, Dipolal Hojai was elected as the Chief Executive Member (in short, 'CEM') of the NCHAC. When, however, Niranjan Hojai found that Dipolal Hojai was not proving to be as useful as was needed and promised, a teleconference was, in the presence of Dipolal Hojai, held between Niranjan Hojai and those executive members of the NCHAC, who belong to ASDC and their said alliance partners. In this teleconference, Niranjan Hojai asked Dipolal Hojai to resign from the office of the CEM and elect Mohit Hojai as the CEM of NCHAC. Dipolal Hojai accordingly resigned on the pretext of ill-health and accused Mohit Hojai became the CEM. ....
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....Cachar Hills Autonomous District Council (NCHAC) was constituted under the provisions of the sixth schedule to the Constitution of India to administer the autonomous district NCHAC has three wings of administration viz. Legislature, Judiciary, and Executive. Apart from the subjects enshrined in the sixth schedule, the Government of Assam has transferred almost all the administrative departments with executive power to the Council except for General Administration, Police, Treasury, Election and Judiciary. The NCHAC has 28 members in the Executive Committee including 2 nominated members. There are 12 Executive Members, each of whom is placed in charge of a department. The leader of the majority party is chosen as the CEM who has the finance portfolio of the Council. There is a Planning Board for the NCHAC and CEM is also the Chairman of the Planning Board. NCHAC is under the administrative responsibility of the Hill Area Development Department of the Government of Assam. 17.3 The main activity of the DHD (J) after 2006 was to siphon off Government funds through extortion and with the help of elected members of the Council, Contractors and Government Servants in order to fin....
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.... supplied it to DHD(J) to commit Acts of terror and violence and to wage war against State with a view to overawe its legitimate authority. 17.6 In pursuance of the said criminal conspiracy, cheques were issued in the name of non-existing persons by the accused Karuna Saikia on the direction of Mohet Hojai and the cheques were en-cashed from State Bank of India. Haflong by Jibangshu Paul, a contractor on 31.1.2009 and 3.2.2009 and the cash amounting to about Rs. 33.45 lakhs was kept with himself for further supplying it to Mohet Hojai through his authorized representative for the terrorist activities. The amount of Rs. 32.11.000 seized on 11.2.2009 was from the money kept by Jibangshu Paul after withdrawing from the bank which he was going to hand over to Mohet Hojai. 17.7 In pursuance of the said criminal conspiracy, cheques were issued in the name of Uttam Phonglosa @ Munna Phonglosa and Dilip Phonglo by the accused Karuna Saikia on the direction of Mohet Hojai and the cheques were deposited in their account without supplying any materials and a total cash amount of Rs. 95.48.500 was withdrawn and delivered to the accused Mohet Hojai for the terrorist activities....
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....st by police. He was in contact over phone and email with Niranjan Hojai who continued to live abroad controlling the activities of DHD (J). He was also found in the company of the accused Vanlalchana when he visited Bangkok. 17.16 In pursuance of the said criminal conspiracy, Vanlalchhana @ Vantea @ Joseph Mezo who is an arms dealer involved in arms smuggling from abroad, met the Chief of DHD(J) Jewel Gariosa and C-in-C Niranjan Hojai at Bangkok and Kwalalampur and finalized the deal for arms supply. He sent arms to DHD(J). He also delivered dollars after converting Indian rupees to the accused Niranjan Hojai for procurement of arms and ammunitions. He pointed out the concealment of weapons at a place called Saronveng in the house of Nampui which was meant to be delivered to DHD(J) and the same were seized. 17.19 In pursuance of the said criminal conspiracy, Niranjan Hojai who is a Commander-in-Chief of the DHD(J), continued to live abroad controlling the activities of DHD(J) over phone and email. He was found in Nepal along with Jewel Gariosa and Ahshringdaw Warisa. He went to Bangkok during December 2007 using the false identity. He utilized the extracted funds....
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....bail we have just cancelled) was apprehended, DHD(J) was indulging in terrorist acts, although it came to be declared as an unlawful association sometime later and, hence, the provisions of the UA (P) Act, 1967, would be attracted to the facts of the present case. The relevant observations, made, in this regard, in Redaul Hussain Khan (supra), read as under: 15. Mr. Rawal submitted that although Mr. Ghosh had referred to some newspaper reports indicating that there was a possibility of amnesty being granted to the members of DHD(J), the same was yet to materialize, and, on the other hand, it also indicated that the said organization was indulging in terrorist activities. Accordingly, in view of the definition of "terrorist act" in Section 15 of the 1967 Act and the provisions of Sections 13 and 17 thereof, there was little doubt that even on the date when the petitioner was apprehended. DHD(J) was indulging in terrorist acts, although, it came to be declared as an "unlawful association" sometime later. Mr. Rawal urged that having regard to the above, the Special Leave Petitions filed against the order of the High court refusing to grant bail were liable to be dismissed. ....
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....assigned and that is what invites and compels us to discuss, albeit as briefly as possible, the materials on record, which, to our mind, are relevant for the purpose of deciding this appeal and some of these materials not only the learned Special Public Prosecutor, but even the learned counsel for the appellant has freely referred to. 136. The statements of PW 1, PW 2 and PW 9, when read together, clearly reveal that on 11-02-2009, PW 9, as Deputy Superintendent of Police (HQ), NCHAC, received information that huge amount of money was being carried to be delivered to DHD(J), whereupon checking of vehicle was resorted to. The statements of these witnesses also reveal that a Scorpio vehicle was intercepted on 11-02-2009 and inside the said vehicle, the occupants, amongst others, were the present appellant, namely, Jibangshu Paul and accused Golon Daulagupu, a Member of the NCHAC. PW 5, 6 and 7 are witnesses to the seizure of a sum of Rs. 32,11,000/-, found in cash, inside the said vehicle. The vehicle was an official vehicle having red light with PW 8 acting as PSO of Golon Daulagupu. In fact, PW 8 admits that he performed the duty of PSO of Golon Daulagupu and, on 11-02-2009, he ....
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....r about 1 (one) hour, Karuna Saikia, again, telephoned him and asked him to prepare one cheque of Rs. 12, 60,000/-, in the name of Dilip Phonglo, and hand over the cheque to Dilip Phonglo for his (Karuna Saikia) signature, at Guwahati, whereupon PW 10 prepared the cheque, contacted Dilip Phonglo, over phone, and handed over the unsigned cheque to him. It is in the statement of PW 10 that he was aware of the fact that cheques were encashed and Jibangshu Paul (i.e., the present appellant) played main role in the encashment of the cheques. This witness has stated that in the same manner, cheques were prepared at the house of the appellant. 139. PW 18, who is an UDA in the office of the Chief Engineer, PHED, has stated that he had brought release order from the State Government for, altogether Rs. 5 Crore Rs. 2 Crore being under non-plan head and Rs. 3 Crore for maintenance of the existing scheme. It is in the statement of PW 18 that in the first week of January, 2009, Mohit Hojai, Chief Executive Member (CEM), called him (PW 18) over phone, Mohit Hojai handed over 8 names, written on a piece of paper, and ordered him (PW 18) to hand over the said piece of paper to Karuna Saikia to ....
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....tant aspect of the statement of P W 29 is that Karuna Saikia had told him that the money had been demanded by the jungle party -- which is an expression, according to the prosecution, to refer to the underground extremists--and has to be, therefore, sent immediately, whereupon he (PW 29) encashed the cheque from the bank and handed over the money to Mohet Hojai at his residence. It is in the statement of PW 29 that on 07.02.2009, at about 11-00 a.m., one Shri Sriwell Masa, who was employed as the Cashier, at the office of the PHE, at Haflong, called him (PW 29) near Haflong bus stand and handed over an unsigned cheque of Rs. 12,60,000/- in his (PW 29's) name. The said Sriwell Masa told him that the cheque was to be signed by Karuna Saikia, Executive Engineer, PHE, and, thereafter, the same was to be taken to Guwahati. PW 29 further stated that after his meeting with the said Masa, he contacted Karuna Saikia over phone, whereupon Saikia asked him (PW 29) to reach Lanka Bus stand on 09.02.2009, at 11-00 a.m., for obtaining his (Saikia's) signature on the said cheque and for further instructions. On the appointed day, PW 29 accordingly went to Lanka, by bus, and reached there ....
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....meeting. Most of the members of the ASDC and the BJP attended the meeting. I thought that the meeting was probably to discuss the cease fire. Probably Bijoyendra and Mohet Hojai already knew as to what was in store. After we had gathered a phone call again came on the phone of Bijoyendra Sengyung. Niranjan asked whether all had gathered or not. He asked me to put the speaker phone on the "ON" mode. Bijoyndra said that his phone did not have a good speaker and gave the number of Kulendra Daulagupu. The call of Niranjan came on Kulendra.s phone and the mobile speaker was put on full volume and kept at the centre of the table. Niranjan said. "1 am the C-in-C of DHI(J). By tomorrow 10-00 a.m. Dipolal Hojai has to resign and Mohet Hojai has to be made the CEM. If you do not listen, you will have the same fate as Purnendu Langthasa. One Debajit Thaosen, who was slightly drunk tried to argue. He asked him as to why this was being ordered. Niranjan replied that Dipolal did not do much for the Dimasas regarding nomenclature of N.C. Hills, making a Dimasa S.P., D.C. and Dimasa HODs of all departments. Debojit then said that even Mohet Hojai cannot get these things done. Niranjan the....
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....ion between Mohit Hojai and Niranjan Hojai. 146. Apart from what have been indicated above, we find, on perusal of the relevant case diary and the report, submitted under Section 173 CrPC, that there are enough materials implicating among others, (i) Niranjan Hojai, Commander-in-Chief, DHD(J), presently an absconder, (ii) Jewel Garlosa, Chairman, DHD(J) and (iii) Mohit Hojai, who headed NCHAC as the CEM. The materials, so collected, and until shown otherwise, reveal, in tune with what the NIA alleges, thus: Dipolal Hojai, the then elected Chief Executive Member (CEM), North Cachar Hills Autonomous Council (NCHAC), resigned from the post of CEM, N.C. Hills, to make way for Mohit Hojai. Dipulal Hojai's statement, in this regard, is of great importance, which clearly reveals that the DHD(J) was indulging in terrorist acts. In fact, the statement of Kulendra Daulagupu shows that the members of the NCHAC had a telephonic conference with Niranjan Hojai, Commander-in-Chief, DHD(J) and in the said conference, Niranjan Hojai asked Dipulal Hojai, the then CEM, NCHAC, to elect Mohit Hojai, as the CEM, because Dipulal Hojai had failed, as CEM, to resolve many issues. Following the direc....
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....reatening them, not to cast votes in favour of a particular national political party, by telling them that they would face dire consequences if they voted for the said political party. The statements of PW 64 further show that an understanding was reached before the last election with this outfit and a national political party that if their alliance came to power, Dipolal Hojai must be made the Chief Executive Member (CEM) of the NCHAC. His statement also reveals that the DHD(J) urged the labourers to stop work in a particular cement factory; but the labourers did not listen to them and that is why, there was mass killing of the labourers. His statements also reveal that DHD(J) indulges in collection of illegal tax and one of the senior citizens of Haflong was kidnapped by the tax commander, because of the former's refusal to pay tax and was released on payment of ransom. From the statements of this witness, it also transpires that DHD(J) collects huge amount of money by unlawful means and the money, so procured, is utilized for, amongst others, purchase of arms and ammunitions and that the said group had also killed some of those labourers, who were involved in the project of ....
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....ran, or attempted to run, almost a parallel Government, thereby shaking the very foundation of the constitutional scheme of governance, in India, its actions and the actions of its activists, such as, Niranjan Hojai, Mohit Hojai and Jewel Garlosa do amount to, unless can be shown otherwise, at the trial, the offence of waging war against the State within the meaning of Section 121 IPC and is punishable by death or imprisonment for life in terms of the penal provisions of Sections 121 of IPC and, those, who help the DHD(J) and/or its activists in carrying out the activities of the DHD(J), would be, if not members of the DHD(J), be responsible as abettors of the offence of waging war against the State and their acts of abetment, too, would be punishable to the same extent as do the acts of the chief perpetrators of such offences. This apart, whoever commit a terrorist act is punishable by Section 16 of the UA(P) Act, which falls under Chapter IV thereof. A person, who commits a terrorist act, cannot be allowed to go on bail, because of the proviso to Section 43D(5). 152. It needs to be noted that a terrorist organization within the meaning of Section 2(m) means an organization lis....
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....for commission of such act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.. 156. The language, used in Section 17, clearly shows that when a person raises or collects funds or provides funds or attempts to provide funds to any person knowing that such funds are likely to be used by such person(s) to commit a terrorist act., then, the person, who collects or provides funds or attempts to provide funds, would commit an offence under Section 17. 157. In the case at hand, there are quite a few transactions, wherein present appellant had collected funds for accused Mohit Hojai knowing well that Mohit Hojai was a DHD(J) activist and he had come to power as the CEM with the blessings of Niranjan Hojai. Any prudent person, placed in the position of the present appellant, would have known that the funds, which they were carrying for Mohit Hojai, were likely to be used for the purpose of terrorist acts. Whether such funds have, as a matter of fact, been used or not for commission of terrorist act is not material in the face of the provisions of Section 17. What is ....