2024 (2) TMI 1560 - HC - Indian Laws

Seeking grant of bail - Naxalite movement - offences under Sections 10 13 17 38(1)(2) 40 22-A 22-C of the Unlawful Activities Prevention Act 1967 - HELD THAT - It is clear that this Court by order dated 20-10-2022 with regard to appellant No.1 Mukesh Salam has clearly observed in paragraph 9 that he is paternal uncle of Naxalite Commander Raju Salam who is absconding and is actually involved in the Naxalite movement and taking into consideration his role in the offence in question and material against him and that there is no change in the circumstances from the date of dismissal of their appeal which has been affirmed by this Court on 20-10-2022 and further considering that it has not been even argued that his case is similar to that of Arun Thakur we do not find any ground to grant bail to appellant No.1 Mukesh Salam. Accordingly this appeal so far as it relates to appellant No.1 Mukesh Salam stands dismissed. It appears that the case of appellant No.2 Rajendra Salam is similar to that of Arun Thakur who has been granted bail by their Lordships of the Supreme Court by order dated 15-5-2023 it is inclined to allow the appeal of only appellant No.2 Rajendra Salam. Accordingly the impugned order so far as it relates to appellant No.2 Rajendra Salam is set-aside and the criminal appeal qua appellant No.2 Rajendra Salam under Section 21(4) of the NIA Act is allowed. It is directed that appellant No.2 Rajendra Salam shall be released on bail on his furnishing a personal bond in the sum of Rs. 1, 00, 000/- with one surety in the like sum to the satisfaction of the concerned Special Judge for his appearance as and when directed. Application disposed off.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court in this appeal under Section 21(4) of the National Investigation Agency Act, 2008 were:

• Whether the appellants accused under various provisions of the Unlawful Activities Prevention Act, 1967 (UAPA), the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005, and the Indian Penal Code (IPC) are entitled to bail under Section 439 of the CrPC, having regard to the facts and circumstances of the case.
• Whether the circumstances of appellant No.2 Rajendra Salam are identical or sufficiently similar to those of co-accused Arun Thakur, who was granted bail by the Supreme Court, thereby entitling Rajendra Salam to the same relief.
• Whether there has been any change in circumstances since the earlier dismissal of bail applications on 20-10-2022 that would justify granting bail to the appellants.
• What conditions should be imposed on bail, if granted, to ensure effective supervision and prevent misuse of liberty.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Entitlement to Bail under Section 439 CrPC in the Context of Serious Offences under UAPA and Related Laws

Relevant Legal Framework and Precedents: The Court considered the stringent provisions of the UAPA, which deals with unlawful activities and terrorism-related offences, and the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005, which is a special law dealing with security in the region. Section 439 CrPC governs bail in cases involving serious offences, and the Court must weigh the nature and gravity of the offences, the role of the accused, and the potential threat to public order.

Court's Interpretation and Reasoning: The Court noted that the appellants were charged with offences under Sections 10, 13, 17, 38(1)(2), 40, 22-A & 22-C of the UAPA, which involve serious allegations of supporting Naxalite activities, including supplying arms and funds. The prosecution's case was that the accused were involved in providing materials and financial support to Naxalites, thereby threatening public security.

Key Evidence and Findings: The prosecution seized materials such as shoes, uniforms, electric wires, LED lenses, and walkie-talkies from Tapas Kumar Palit, who was allegedly supplying these to Naxalites. Mobile phones recovered from appellants contained call records indicating communication with Naxalite Commander Raju Salam. The appellants were also linked to companies involved in road construction contracts, which were allegedly used as fronts to facilitate illegal supply.

Application of Law to Facts: The Court observed that appellant No.1 Mukesh Salam was the paternal uncle of the absconding Naxalite Commander Raju Salam and had direct and constant communication with him. Appellant No.2 Rajendra Salam had a close relationship with Tapas Kumar Palit and was involved in storing and handing over materials to appellant No.1. The involvement of the accused in such activities under the UAPA and related laws militated against granting bail to appellant No.1.

Treatment of Competing Arguments: The appellants contended that they had been in custody since May 2020, the trial was progressing slowly, and only 33 of 144 witnesses had been examined. They argued that appellant No.1 was not conclusively proven to be related to Raju Salam and that appellant No.2's case was similar to that of Arun Thakur, who had been granted bail by the Supreme Court. The State opposed bail, emphasizing the serious nature of the offences and lack of change in circumstances since the earlier dismissal.

Conclusions: The Court upheld the rejection of bail for appellant No.1 Mukesh Salam, emphasizing his close familial and operational link with the absconding Naxalite leader and the gravity of the offences. There was no sufficient change in circumstances to warrant bail.

Issue 2: Grant of Bail to Appellant No.2 Rajendra Salam Based on Similarity to Co-accused Arun Thakur

Relevant Legal Framework and Precedents: The Court referred to the Supreme Court's order granting bail to co-accused Arun Thakur, which set a precedent for similarly situated accused. The principle of parity in bail applications was considered relevant.

Court's Interpretation and Reasoning: The Court noted that in the earlier order dated 20-10-2022, it had observed that the case of appellant No.2 Rajendra Salam appeared similar to that of Arun Thakur. Given the Supreme Court's grant of bail to Arun Thakur on 15-5-2023, the Court was inclined to extend the same relief to Rajendra Salam.

Key Evidence and Findings: Both Rajendra Salam and Arun Thakur were alleged to have supplied materials to Naxalites and maintained communication with the Naxalite Commander. The evidence against Rajendra Salam was comparable in nature and degree to that against Arun Thakur.

Application of Law to Facts: The Court applied the principle of parity and fairness, recognizing that the Supreme Court's grant of bail to Arun Thakur created a material change in circumstances for Rajendra Salam's bail application.

Treatment of Competing Arguments: The State's argument that there was no change in circumstances was countered by the appellants' reliance on the Supreme Court's order. The Court found this to be a sufficient ground to grant bail to appellant No.2.

Conclusions: The Court allowed the appeal of appellant No.2 Rajendra Salam and set aside the impugned order rejecting his bail application.

Issue 3: Conditions to be Imposed on Bail to Ensure Supervision and Prevent Misuse

Relevant Legal Framework: The Court exercised its discretion under Section 439 CrPC to impose stringent conditions to ensure that the accused on bail do not abscond or interfere with the investigation.

Court's Interpretation and Reasoning: The Court imposed multiple conditions on appellant No.2's bail, including restrictions on movement within specified police station jurisdictions, mandatory prior intimation and reporting requirements, surrender of passport, and use of a single mobile phone with location tracking.

Application of Law to Facts: These conditions were tailored to the facts of the case, particularly the risk of absconding or continuing illegal activities given the accused's alleged involvement with Naxalites.

Conclusions: The Court's conditions balance the right to liberty with the need for effective supervision and safeguarding public interest.

3. SIGNIFICANT HOLDINGS

The Court held:

"It is clear that this Court by order dated 20-10-2022 with regard to appellant No.1 Mukesh Salam has clearly observed in paragraph 9 that he is paternal uncle of Naxalite Commander Raju Salam, who is absconding and is actually involved in the Naxalite movement and taking into consideration his role in the offence in question and material against him and that there is no change in the circumstances from the date of dismissal of their appeal which has been affirmed by this Court on 20-10-2022 ... we do not find any ground to grant bail to appellant No.1 Mukesh Salam."

"Considering the submission of learned counsel for the appellant No.2 who have invited our attention to paragraph 9 of our earlier order dated 20-10-2022 by which we have observed that it appears that the case of appellant No.2 Rajendra Salam is similar to that of Arun Thakur who has been granted bail by their Lordships of the Supreme Court by order dated 15-5-2023, we are inclined to allow the appeal of only appellant No.2 Rajendra Salam."

Core principles established include:

• Close familial and operational links to a designated absconding Naxalite leader weigh heavily against bail under UAPA.
• Parity in bail relief is appropriate where the facts and evidence against co-accused are substantially similar, especially in light of higher court orders.
• Bail under stringent security laws can be granted subject to rigorous conditions to ensure effective monitoring and prevent misuse.

Final determinations:

• Bail was refused to appellant No.1 Mukesh Salam due to his close association with an absconding Naxalite leader and serious role in the offences.
• Bail was granted to appellant No.2 Rajendra Salam on furnishing a personal bond and surety, subject to specific conditions including restricted movement, mandatory reporting, surrender of passport, and mobile phone tracking.
• The appeal was dismissed insofar as it related to appellant No.1 and allowed insofar as it related to appellant No.2.