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SUPREME COURT OF INDIA
V. RAMASUBRAMANIAN, PANKAJ MITHAL, JJ.
Akhil Gogoi – Petitioner
Versus
The State (National Investigation Agency) and Others – Respondents
Special Leave Petition (Criminal) No. 2504 of 2023
Decided On : 18-04-2023
Indian Penal Code, 1860 – Sections 120B, 124A, 153A and 153B read with Sections 18 and 39 of Unlawful Activities (Prevention) Act, 1967 – Criminal Procedure Code, 1973 – Section 227 – Discharge from case by Special Court – Reversal by High Court – Dismissal of application for bail at the time when investigation was pending, is no ground to reject prayer for protection against arrest, now made by petitioner – Court, while rejecting prayer for a larger relief, can consider grant of smaller relief – Petitioner has suffered incarceration for about 567 days – He has been out as a free man for past more than 21 months – His freedom was secured not by order of bail, but by order of discharge passed by Special Court, which has now been reversed by High Court – Nothing has been brought on record to show that during this period of 21 months, when petitioner has been a free man, he has indulged in any unlawful activity – Petitioner is now a sitting member of Assembly – If offences under IPC alone are taken into account, petitioner has served, as an under-trial prisoner, more than half of maximum period prescribed under relevant provisions – Petitioner is entitled to be protected against arrest and detention – No purpose will be served in allowing Special Court to remand him to custody and then enabling him to move application for bail – Petitioner to be released on bail. (Paras 19, 20, 21, 22, 23, 24 and 25)
Facts of the case:
Aggrieved by Judgment of Gauhati High Court allowing an appeal preferred by State and thereby reversing an Order of discharge passed by Special Court, NIA, Guwahati, Assam, person named as accused No. 1 in the criminal case has come up with this special leave petition.
Findings of Court:
Special leave petition is disposed of (i) confirming the Judgment of the High Court in all respects but (ii) directing the release of the petitioner on bail, pending trial, subject to such terms and conditions as may be imposed by the Special Court (NIA) Guwahati.
Result : Special leave petition is disposed of.
JUDGMENT :
V. RAMASUBRAMANIAN, J.
1. Aggrieved by the Judgment of the Gauhati High Court allowing an appeal preferred by the State (National Investigation Agency)1 [for short “NIA”] and thereby reversing an Order of discharge passed by the Special Court, NIA, Guwahati, Assam, the person named as accused No. 1 in the criminal case has come up with this special leave petition.
2. We have heard Shri Huzefa Ahmadi, learned senior counsel appearing for the petitioner and Shri Tushar Mehta, learned Solicitor General and Ms. Aishwarya Bhati, learned Additional Solicitor General appearing for the respondents.
3. A FIR being Chanmari Case No. 1688/2019, was registered against the petitioner and three others on 13.12.2019 for alleged offences punishable under Sections 120B, 124A, 153A and 153B of the Indian Penal Code, 1860 read with Sections 18 and 39 of The Unlawful Activities (Prevention) Act, 1967. NIA took over the investigation and the FIR was re-registered as RC-13/2019/NIA-GUW [KMSS-CPI (Maoist)] link case.
4. The petitioner was arrested on 17.12.2019 and a charge-sheet was filed on 29.05.2020.
5. The application for bail filed by the petitioner was rejected by the Special Court on 07.08.2020. The challenge to the same before the High Court as well as this Court proved unsuccessful.
6. However, by an order dated 01.07.2021, the Special Court (NIA) discharged the petitioner. As a consequence, the petitioner was released, after suffering incarceration for about 567 days.
7. NIA preferred an appeal before the High Court of Gauhati, challenging the order of discharge. The said appeal was allowed by the Gauhati High Court by a Judgment dated 09.02.2023. It is against the said Judgment that the petitioner, arrayed as accused No. 1, has come up with this special leave petition.
8. It is relevant to note at this stage that there were 4 accused in the criminal case. The Special Court discharged all the four accused, by its order dated 01.07.2021 and the said Order of the Special Court was overturned by the High Court. Therefore, persons arrayed as accused Nos. 2 and 3 first came up with special leave petition in SLP (Crl.) No. 2292 of 2023. The said special leave petition was dismissed by this Court by an Order dated 17.02.2023, which reads as follows:
“After hearing learned counsel for the petitioners and learned Solicitor General for the State, we are of the view that the High Court has merely set aside the order of the Special Court and remanded the matter back to the trial court to conduct fresh hearing on the question of framing of charge.
Therefore, the impugned order does not call for any interference at this stage, and hence, the special leave petitions are dismissed.
Pending applications, if any, shall stand disposed of.”
9. It is only thereafter that the petitioner herein (A-1) came up with this special leave petition. Therefore, this special leave petition also deserved to meet with the same fate. But Shri Huzefa Ahmadi, learned senior counsel pointed out that on one aspect, the petitioner herein stands on a different footing from accused Nos. 2 and 3. Accused Nos. 2 and 3 were released on bail even before the order of discharge was passed by the Special Court and hence there was no threat of their arrest, consequent upon the order of discharge being set aside by the High Court. However, in this case, the petitioner is likely to be arrested, pursuant to the impugned judgment of the High Court, as his bail application stood rejected upto this Court. Therefore, the learned Senior Counsel pleaded that if the Court was not inclined to order notice, the petitioner should at least be protected against arrest.
10. In view of the aforesaid, this Court ordered notice, for a limited purpose when this special leave petition came up for orders as to admission. The order dated 21.02.2023 passed in this special leave petition is self-explanatory and it is reproduced as follows:
“Let notice be served on the standing counsel for the State (NIA), for the lim
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