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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
KALYAN RAI SURANA, MALASRI NANDI, JJ.
Jai Kishan Sharma S/o Late Manohar Lal Sharma – Appellant
Versus
National Investigation Agency – Respondent
Crl. Appeal No. 201 of 2020
Decided On : 27-06-2022
Indian Penal Code, 1860 – Section 120 B/384, 302/307/34 - National Investigating Agency (NIA) Act, 2008 – Section 21(4) - Arms Act, 1959 - Section 25 (1b) (a)/27 - UA (P) Act, 1967 - Section 10, 13 , 17, 43D (5) and (6) – Offence of Murder – Attempt to Murder - Criminal conspiracy - Appeal against order of rejection of bail - Whether this meeting was aimed at supporting the terrorist organisation by providing funds and other logistics is not substantiated by any of the statements of the witnesses recorded during investigation - Exercise to be undertaken by the court at the time of considering the bail plea of the accused is markedly different from discussing the merits or demerits of the evidence (Para 20).
Findings of the Court :
Evidence assembled by the investigating agency and relied upon by the prosecution to prosecute the appellant even if accepted as it is without any denial or rebuttal by the appellant, is not such on the basis of which the court can formulate an opinion that the materials collected during the investigation are prima facie true. The evidence as is gathered by the prosecution is too sketchy to be believed prima facie true, that too, with a view to deny bail to the appellant - gravamen of allegation against the appellant is that he hatched conspiracy with the members of NSCN (IM) for killing of the sitting MLA, Tirong Aboh and his ten associates. He also raised funds for supporting the terrorist organisation. On the close scrutiny of the materials placed on record in the shape of statement of various witnesses, the prosecution appears to have prima facie established that the appellant was seen along with James Kiwang and one Rockwang Tangkhul @ Absolom Tangkhul, underground workers of NSCN (IM). The appellant had gone to give money to another accused Luckin Mashangva and both of them were caught red handed at Dimapur with huge amount of money. Whether this meeting was aimed at supporting the terrorist organisation by providing funds and other logistics is not substantiated by any of the statements of the witnesses recorded during investigation. There is no evidence on record which, prima facie, shows that the association of the appellant with the aforesaid terrorists was with an intention for the act of killing MLA, Tirong Aboh and his associates.
Result : Criminal appeal disposed of.
JUDGMENT :
MALASRI NANDI, J.
1. Heard Mr. A.M. Borah, learned senior counsel assisted by Mr. B. Bhagawati, learned counsel appearing for the appellant. Also heard Mr. R.K.D. Choudhury, learned Assistant Solicitor General of India appearing for the respondent.
2. This is an appeal filed by the appellant u/s 21(4) of the National Investigating Agency (NIA) Act, 2008 against the order of rejection of bail dated 28.09.2020 passed in BA No. 05 and 22/2020 by the Learned Special Judge NIA, YUPIA, Papumpare, Arunachal Pradesh, in connection with the NIA Case No. RC-03/2019/NIA/GUW u/s 302/307/34 IPC read with Section 25 (1b) (a)/27 Arms Act and Section 10/13 UA (P) Act.
3. The brief facts of the case is that on 21.05.2019 while Tirong Aboh, sitting MLA of Arunachal Pradesh, his son along with 14 others including his four PSO’s coming from Dibrugarh towards Khonsa in four vehicles were ambushed and attacked by some unknown persons with sophisticated weapons near Pansumthong village area. In the said incident, Tirong Aboh, his son and ten others were killed and three persons were injured. In this regard, police initially registered a case being Khonsa P.S. Case No. 28/2019 u/s 302/307/34 IPC read with section 25 (1b) (a)/27 of Arms Act and 10/13 of UA (P) Act and started investigation. After 6 days i.e. on 27.05.2019 another FIR was lodged by Smt. Shakat Aboh, wife of the deceased MLA at the Khonsa Police station. Subsequently, this case was handed over to NIA for investigation and the case was re-registered vide no. RC-3/2009/NIA/GUW.
4. During investigation, the present appellant alongwith other accused were arrested. Subsequently, bail application was filed before the Special Judge, NIA, Yupia, Papum Pare, A.P. which was rejected as aforesaid. Hence, this appeal.
5. Learned senior counsel for the appellant Mr. A.M. Bora has argued that the appellant is the resident of Khonsa, Arunachal Pradesh and engaged in construction/transport and other businesses and was known to police and Para military forces, politician and other locals and he is law abiding citizen who belongs to a reputed family of the locality. It is further stated that in regard to the death of MLA Tirong Aboh and ten other persons, a case was registered on the date of incident at Khonsa Police station vide Khonsa P.S. case no 28/2019 but subsequently after 6 days i.e. on 27.05.2019, the wife of the deceased MLA Smt. Shakat Aboh also lodged an FIR at the Khonsa Police station alleging that the persons named in the FIR are from Laho and Kheti villages and Lazo belt who had strong enmity with her late husband Tirong Aboh during the election process. They had also made threatening calls to her husband, as such she strongly suspected that the listed persons had nexus with the underground groups in committing the murder of her husband and son. But the name of the present appellant has not been mentioned in the FIR lodged by the wife of the deceased MLA.
6. It is also the submission of learned senior counsel for the appellant that in the course of investigation, the appellant was arrested along with Luckin Mashangva and two others on 22.08.2019 who were already in custody of East Dimapur (Nagaland) Police station in connection with FIR No. 204/2019 dated 21.08.2019 u/s 384/34 IPC. It has been alleged in the charge sheet that the appellant was found in possession of huge cash and the case was transferred to NIA and in turn NIA re-registered the case being RC-10/2019/NIA/GUW dated 17.09.2019 following which a charge sheet no. 04/2020 dated 14.02.2020 was filed u/s 120 B/384 of IPC and section 17 of UA (P) Act against four accused persons including the present appellant before the Special Judge, Dimapur.
7. According to learned senior counsel for the appellant, the allegation against the appellant is that he along with the accused Luckin Mashangva had conspired with other accused persons to commit the act of killing Tirong Aboh and ten others. They were members of the terrorist gang of N
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The court confirmed that under Section 43D(5) of UAPA, bail cannot be granted if there are reasonable grounds to believe the accusations are prima facie true.
Mere association with the terrorist organization is not sufficient to attract Section 38 of the UA(P) Act and mere support given for the terrorist organization is not sufficient to attract Section 39....
The completion of investigation and prolonged judicial custody are significant factors in determining the entitlement to bail under UAPA. The court emphasized the mandatory requirements under Section....
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