The Criminal Appeal Nos.415-417 of 2019 and Criminal Appeal Nos.418 of 2019 challenge the judgments and orders dated 8 May 2018 and 3 September 2018 respectively, passed by the learned Division Bench of the Gauhati High Court, vide which the bail granted to the appellants herein came to be cancelled.
Also Read: https://newslaw.in/case-type/criminal/abuse-of-process-of-law-a-case-of-delayed-fir-filing/
Shri Basant submits that the learned Special Judge, after finding that the act of the appellants of succumbing to the demands of the organization was not voluntary and that the investigating agency itself had admitted that the accused persons were voluntarily cooperating with the investigation, had granted bail.
Mohana further relies on the provisions of sub- section (5) of Section 43D of the said Act to buttress the submission that since the prima facie case is made out, the appellants were not entitled to bail and as such, the High Court has rightly reversed the orders. However, in my considered view the position of the accused who are compelled to pay tax are precarious and there is no doubt that the law enforcing agencies may not always be there for their protection and penalty for violation which always looms is eminent.
We are drawn to the Criminal Appeal No 4 (K) of 2017 NIA vs Victo Swu which is relied upon by the Special PP, NIA where the submission of the learned PP NIA is recorded as “Thereafter the IA.
Also Read: https://newslaw.in/case-type/criminal/analysis-of-circumstantial-evidence-conviction-reversed/
Unless it can be shown that the accused are actually sympathizers of the outlawed outfits and they are depriving fund on their own volition to sustain the outlawed organisations it would be prejudiced to conclude that there is a prima facie true evidence. I rule that the investigation agency have also no hindrances at all in securing any information from the accused persons as the NIA have admitted that the accused persons and voluntarily cooperating with the investigation by surrendering all relevant documents which wee needed by the investigation. The learned Judges of the Division Bench found that 7 the learned Special Judge having itself recorded that the accused-appellants had committed the offence, albeit prompted by an element of threat having regard to the provisions under Section 43D (5) of the said Act, the prayer for bail could not have been acceded.
It will be worthwhile to note that this Court, in the case of Zahoor Ahmad Shah Watali (supra), has distinguished the words 2 (2019) 5 SCC 1 3 (2005) 5 SCC 294 8 ‘not guilty’ as used in TADA, MCOCA and NDPS Act as against the words ‘ prima facie ’ in the present Act.
Insofar as the second requirement with regard to Court arriving at a satisfaction that the accusation against such persons is prima facie true is concerned, we would not like to go into the elaborate discussion of the evidence, inasmuch as that may hamper the rights of the parties at the stage of trial.
Also Read: https://newslaw.in/case-type/criminal/quashing-of-proceedings-in-criminal-case-no-542-of-2020/
However, it may be noted that a perusal of Sections 39 and 40 of the said Act, as have been interpreted by this Court, would show that a prima facie satisfaction has to be arrived that the acts which are committed by the accused have been committed with intention to further the activity of a terrorist organization. We, therefore, find that it cannot be said that the prima facie opinion, as expressed by the learned Special Judge, could be said to be perverse or impossible.
Case Title: KEKHRIESATUO TEP Vs. NATIONAL INVESTIGATION AGENCY (2023 INSC 362)
Case Number: Crl.A. No.-000415-000417 / 2019
