Gauhati High Court Grants Bail to Four Accused in NDFB(S) Massacre Case, Citing Prolonged Detention While Denying Others Based on Severity of Charges

Guwahati: The Gauhati High Court, in a significant judgment addressing the delicate balance between statutory restrictions on bail in anti-terrorism cases and the fundamental right to speedy trial, has granted bail to four out of eight accused individuals linked to the 2014 massacre of 30 people by alleged National Democratic Front of Bodoland (Songbijit) [NDFB(S)] cadres. The court, comprising Justice Manish Choudhury and Justice Kaushik Goswami , while allowing the appeal for four appellants, upheld the denial of bail for the remaining four, emphasizing the difference in the gravity of the specific charges against them and the strength of prima facie evidence.

The appeal was filed under Section 21(4) of the National Investigation Agency (NIA) Act, 2008, challenging an order dated March 20, 2024, by the Special Judge, NIA, Assam at Guwahati, which had rejected the bail application of all eight accused persons (A-1, A-2, A-4, A-5, A-6, A-7, A-8, and A-9) in connection with Special NIA Case No. 2 of 2015.

Case Background:

The case originates from a tragic incident on December 23, 2014, where thirty Adivashi/Southal people were killed and four others injured in Sonajuli village, Sonitpur district, Assam. The incident was attributed to cadres of the NDFB(S), a proscribed terrorist organization. The case was initially registered by the local police under various sections of the Indian Penal Code (IPC), Arms Act, and Unlawful Activities (Prevention) Act ( UAPA ), before being re-registered and taken over by the NIA.

The NIA filed multiple charge-sheets against ten accused persons (A-1 to A-10), alleging criminal conspiracy and commission of terrorist acts. One accused (A-3) pleaded guilty to charges under Section 19 and 20 of the UAPA (harbouring and membership of a terrorist organization) and was sentenced to seven years imprisonment in 2019, having already spent over four years in custody. Another accused (A-10) remains an absconder, and A-11 is deceased. The appellants are among the remaining accused who are facing trial.

Charges were framed against the appellants on September 19, 2016, including serious offenses under the IPC (Sections 120B, 121, 302, 307, 326) and the UAPA (Sections 16, 18, 19, 20), along with sections of the Arms Act and Explosive Substances Act. The trial commenced in November 2016.

Arguments Presented:

The appellants’ counsel primarily argued for bail on the ground of prolonged incarceration (approaching a decade for some) and the slow pace of the trial . They contended that the delay violated their fundamental right to speedy trial under Article 21 of the Constitution. Citing precedents like Hussainara Khatoon , Union of India v. K.A. Najeeb , Javed Gulam Nabi Shaikh , and Sheikh Javed Iqbal , they argued that continued detention without a timely trial is impermissible, especially when the trial is unlikely to conclude soon (only 59 out of 124 witnesses examined till September 2024). They also suggested the spirit of Section 436A CrPC (now Section 479 BNSS ), regarding maximum detention for undertrials, should be considered.

The NIA Special Counsel opposed the bail, highlighting the gravity of the offenses – a terrorist act resulting in mass killing, including women and children. They submitted that investigation materials, including intercepted communications, forensic reports linking recovered arms (based on accused A-1's disclosure) to the crime scene, and eye-witness identifications, prima facie established the involvement of all appellants as members of a proscribed terrorist organization who conspired and executed the attack. While acknowledging the delay, they attributed it partly to difficulties in tracing and securing the presence of Adivashi/Southal witnesses who relocated due to fear and livelihood issues. They cited Zahoor Ahmad Shah Watali and Gurwinder Singh to argue that the stringent bar under Section 43D(5) of the UAPA applied, and mere delay should not automatically grant bail in grave cases.

Court's Analysis and Decision:

The High Court acknowledged the stringent bar in Section 43D(5) of the UAPA , which prohibits granting bail if the court finds "reasonable grounds for believing that the accusation against such person is prima facie true" based on the case diary or charge-sheet. The Court noted that after framing of charges, a strong suspicion is presumed, making the task harder for the accused to get bail.

However, the Court, referring to the Supreme Court's ruling in K.A. Najeeb , reiterated that the statutory restrictions under UAPA do not oust the ability of constitutional courts to grant bail on grounds of violation of Article 21 , particularly the right to speedy trial. The rigors of Section 43D(5) can "melt down" where the trial is unlikely to conclude within a reasonable time and the period of incarceration is substantial compared to the potential sentence.

Crucially, the High Court found that the Special Court erred in not undertaking a detailed evaluation of the materials against each accused person and in stating that granting bail on Article 21 grounds in UAPA cases was the exclusive preserve of constitutional courts.

Undertaking its own analysis of the charge-sheets and materials, the High Court differentiated among the appellants based on the specific charges and alleged roles:

1. Appellants A-1, A-2, A-4, and A-9: These appellants are primarily charged with conspiracy (S.18/20 UAPA , S.120B IPC) and membership of a terrorist organization. They are not directly charged under Section 16(1)(a) of the UAPA (terrorist act resulting in death) or Section 121 IPC (waging war) or Section 302/307 IPC (murder/attempted murder) as alleged direct participants in the killing act. The Court noted that accused A-3, charged under similar UAPA sections (19/20), received a sentence of 7 years. Taking a cue from this and the principle in K.A. Najeeb , the Court reasoned that their period of incarceration (since early 2015, nearing a decade) is substantial, and the rigors of Section 43D(5) are diluted due to the prolonged delay in trial, especially considering the nature of charges against them does not carry the mandatory death penalty or life imprisonment imposed for direct involvement in killing under Section 16(1)(a) UAPA or Section 302/121 IPC. The Court found their case came within the purview where prolonged custody due to delayed trial justifies bail, subject to conditions.

2. Appellants A-5, A-6, A-7, and A-8: These appellants are charged under Section 16(1)(a) UAPA , Section 302 IPC, Section 307 IPC, and Section 121 IPC. The charge-sheets contain prima facie evidence, including eye-witness statements, directly implicating them as part of the five-member team that carried out the indiscriminate firing causing the death of thirty unarmed persons, including women and children. The Court emphasized the extreme gravity and brutality of these alleged acts, which constitute a terrorist act resulting in death (punishable with death or life imprisonment under S.16(1)(a) UAPA and S.302/121 IPC). The Court found that the prima facie case against them for these most serious offenses was strong.

The High Court held that while delay is a factor under Article 21, in the case of appellants A-5, A-6, A-7, and A-8, the "collective public interest and the interest of the victims and their family and the witnesses" in ensuring a fair trial outweighs the individual right to liberty at this stage. Granting bail to individuals prima facie involved in such a mass killing would instill fear and potentially jeopardize the trial, especially given the difficulties in securing witnesses already noted by the Special Court. The Court also observed that Section 436A CrPC/479 BNSS , which limits detention, explicitly excludes offenses punishable with death or life imprisonment, reinforcing that different considerations apply to the most severe charges.

Conclusion and Directions:

Consequently, the High Court modified the Special Court's order. It granted bail to Ajoy Basumatary (A-1), Dilip Basumatary (A-2), Nitul Daimary (A-4), and Julius Basumatary (A-9) subject to stringent conditions, including furnishing a bail bond of Rs. 1,00,000 with two sureties, not leaving the court's jurisdiction without permission, not tampering with evidence or witnesses, regular court appearances, surrendering passports, reporting to the local police station monthly, providing contact/location details, and keeping their mobile phones active and traceable.

Bail was denied for Ustad Basumatary (A-5), Pohor Narzary (A-6), Ananta Swargiary (A-7), and Gojen Narzary (A-8).

The Court directed the Special Court, NIA, Assam at Guwahati, to proceed with the trial in Special NIA Case No. 2 of 2015 as expeditiously as possible, in accordance with law, including the mandate of Section 19 of the NIA Act for day-to-day trial. The High Court clarified that its observations are solely for the purpose of the bail application and shall not influence the ongoing trial.

This judgment highlights the complex interplay between anti-terrorism laws and fundamental rights, demonstrating that while prolonged detention can lead to bail even in UAPA cases, the severity of the specific charges and the strength of direct evidence linking accused to heinous acts remain critical factors in the court's balancing exercise.