- (1.) (1) In a case registered by the police against an accused on the basis of First Information Report, whether bail can be granted to the accused in respect of the case, as a whole, or offence-wise ? (2) During the course of investigation of a case, or while filing the charge-sheet, when a penal Section is added to the offence(s), whereunder the case already stands registered, whether the accused is required to apply afresh for being allowed to go on bail in respect of the newly added penal Section and, if so, whether the application for such a bail would mean that the accused has surrendered himself to the jurisdiction of the Court, wherein he has applied for bail, and may or may not, therefore, be allowed to go on bail if the added offence (Penal Section) is non-bailable and the facts and circumstances of the case do not warrant release of the accused on bail in case of such an offence ? (3) Whether cancellation of earlier bail is necessary if the Court finds that it lacks jurisdiction to grant bail in respect of the subsequently added penal Section ? (4) In the event of addition of a penal Section to a case, as indicated hereinabove, is it the duty of the Investigating Officer to inform the Court, which had granted bail to the accused, or on whose order, the accused stood released on bail, as regards the addition of the penal Section, providing him thereby with an opportunity to apply for bail in respect of the added penal Section, or, whether the police can arrest such an accused on the basis of the newly added penal Section without informing the Court, which had granted bail to the accused, or without giving any opportunity to the accused, who was already on bail, to apply to the Court for bail in respect of the penal Section, which stands subsequently added in such a case, or whether the accused needs to be informed, in such a case, as regards the addition of the penal Section, so that the accused can, in respect of the added penal Section, apply for bail ? (5) Whether the nature of the newly added penal Section shall have any bearing on the Court's decision to grant or not to grant bail and how the Court shall decide, in a case of such a nature, the question of granting or not granting of bail? (6) What are the parameters for determination of the question as to whether the added penal Section is graver than the ones in respect whereof, the accused already stands granted bail ? (7) What are, generally, the parameters of power of a Court, while granting bail in a non-bailable. offence ? (8) Whether the cancellation of bail is permissible in law only when the accused violates the conditions of bail, or whether bail is also possible to be cancelled, when the Magistrate, who has granted bail, or the Court, which has allowed the accused to go on bail, finds that he or it lacked jurisdiction to grant bail? (9) How Section 167(2) CrPC differs from the provisions embodied in Section 309(2) CrPC ? These are some of the prominent questions, which have arisen, in the present appeal, for determination.
(2.) This appeal, under Section 21 of the National Investigation Agency Act, 2008, (for short, the NIA Act'), is preferred against the orders, dated 20.02.2010 and 03.01.2011, passed by the learned Special Judge, National Investigation Agency (in short, 'the NIA') in NIA Case No. 02/2009, under Sections 120(B)/121/121A of the Indian Penal Code, 1860, read with added Sections 16, 17, 18, 19 and 20 of the Unlawful Activities (Prevention) Act, 1967, (for short, the UA (P) Act), rejecting the prayer of the appellant to allow him to remain on previous bail and directing that he be taken into custody forthwith.
(3.) The material facts and various stages, which have led to the present appeal, may, in brief, be set out as under: (i) One Ratneswar Das, Sub-Inspector of Police, filed an Ejahar before the Officer-in-Charge, Diyungmukh Police Station, North Cachar Hills, stating, inter alia, that an information was received from high-level sources that some persons/ workers of the North Cachar Hills Autonomous Council (popularly known as NC Hills Autonomous Council) were going to deliver huge amount of cash of DHD(J), a terrorist gang, somewhere between Haflong and Diyungmukh, for the purpose of procuring arms and ammunitions and for promoting organisational activities with a view to wage war against the State and that accordingly, he along with available forces, under the guidance of the Deputy Superintendent of Police (Headquarters), Haflong, started checking of vehicles coming from the direction of Haflong and proceeding towards Diyungmukh. It had been further stated, in the Ejahar, that on 10.02.2009, at about 3.30 PM, during checking of vehicle No. AS-08-5133 (a Mahindra Scorpio vehicle), at Thaijowari, wherein Golon Daulagupu, a member of NC Hills Autonomous Council, and Sri Jibangshu Paul were travelling, recovered cash amount of Rs. 32,11,000/- from the possession of Jibangshu Paul, who failed to give any satisfactory explanation with regard to carrying of such huge amount of cash with them indicating thereby that the cash, which had been found in the possession of Jibangshu Paul, was being carried to be handed over to the DHD(J) extremists and, as such, they had committed the offence of criminal conspiracy to wage war against the State with the help of DHD(J) extremists and the cash was accordingly seized in presence of witnesses. Based on this Ejahar and treating the same as First In-. formation Report, Diyungmukh Police Station Case No. 03/2009, under Sections 120(B)/121/121A IPC, was registered against Golon Daulagupu, MAC, NC Hills Autonomous Council, and Jibangshu Paul (i.e., the present accused-appellant) and both the occupants of the said car including Jibangshu Paul were arrested. (ii) Taking note of the fact that the accused-appellant had been in custody since 10.02.2009 and about 15 days had already passed and taking note also of the fact that the co-accused had already been granted bail, the appellant was ready to cooperate with the police during investigation and that there was no chance of his absconding, the learned District Magistrate, NC Hills, acting as a Magistrate, by order, dated 26.02.2009, allowed the accused-appellant to go on bail of Rs. 50,000/- with one surety of the like amount (iii) On 01.06.2009, the Central Government, in exercise of its power under Section 6(5) read with Section 8 of the NIA Act, directed the NIA to take up investigation of the case. Diyungmukh Police Station Case No. 03/2009 aforementioned, then, came to be registered by the NIA as FIR No. 02 of 2009 and the investigation of the case was, thereafter, conducted by the NIA. Thus, the Assam Police had conducted the investigation till 05.06.2009 and, during this period of investigation, apart from Golon Daulagupu and Jibangshu Paul, two more persons, amongst others, namely, Biraj Chakra-borty and Karuna Saikia were also arrested. (iv) During the course of investigation, which the NIA had conducted, 13 more persons were arraigned, as accused, under Sections 16, 17, 18, 19 and 20 of the Unlawful Activities Prevention Act, 1967, (in short, UA (P) Act, 1967) and Section 25(1)(d) of the Arms Act, 1959. On completion of investigation, the NIA submitted charge-sheet, on 18/19.10.2010, under Sections 120B, 121, 121-A IPC and under Sections 16, 17, 18, 19 and 20 of the UA (P) Act, 1967 and Section 25(1)(d) Arms Act, 1959. Thus, Section 16, 17, 18, 19 of the UA (P) Act, 1967, read with Section 25(1)(d) of the Arms Act, 1959, were the added Sections in the charge-sheet. (v) Based on this charge-sheet, Spl/ NIA Case No. 02/2009 was registered in the Court of the Special Judge, NIA, Assam, Guwahati. (vi) After receiving notices, some of the accused persons, including the present appellant, appeared in the Court of learned Special Judge and they filed petitions to allow them to remain on previous bail. These petitions were admitted for hearing. (vii) On 03.11.2010, an application was filed by the NIA, in the Court of learned Special Judge, NIA, stating to the effect, inter alia, that the accused persons, including the present appellant, had not approached any Court for grant of bail in respect of offences under Sections 16, 17, 18, 19 and 20 of the UA (P) Act, 1967, which were added on 20.02.2010, and, therefore, they be taken into judicial custody till such time the accused persons (including the present appellant) furnish appropriate bail order in respect of all the penal sections, which they stood charged with. (viii) A written objection to the said application, dated 03.11.2010, was filed by the present appellant. In the said written objection, it was contended that after appearance, he had been granted the privilege to remain on his previous bail by the Court of the learned Special Judge. It was further stated therein that his name did not figure in the list of 13 persons in respect of whom Sections 16, 17, 18, 19 and 20 of the UA (P) Act and Section 25(1)(d) of the Arms Act, 1959, were added. During the period of investigation, new penal Sections were added on 20.12.2010, but till the charge-sheet was filed on 18.10.2010, the investigating agency had never sought for cancellation of his (i.e., the appellant's) bail. The application, therefore, filed by the NIA was, according to the present appellant, wholly misconceived and the appellant cannot be taken into custody unless the bail, granted to him, earlier by the District Magistrate, NC Hills, on 26.02.2009, was cancelled and, apparently, there was no ground for cancellation of bail of the appellant. (ix) On 20.12.2010, when the case came up for order, the appellant was absent, but filed Petition No. 2799/2010 showing the cause for his not being present in the Court. The cause shown was that the mother of the appellant had been suffering from ailment. Rejecting the said prayer, non-bailable Warrant of Arrest was directed to be issued by order, dated 20.12.2010, passed by the learned Special Court. The appellant's petition seeking that he be allowed to remain on previous bail, already granted by the learned District Magistrate, NC Hills, Haflong, by order, dated 26.02.2009, was also rejected. (x) The argument, advanced on behalf of the NIA, in the Court of the learned Special Judge, was that the appellant had not been granted bail under the newly added Sections, namely, Sections 16, 17, 18, 19 and 20 of the UA (P) Act, 1967, and that bail had been granted to the appellant only in respect of the offences under Sections 120(B)/121/121A IPC and that such grant of bail cannot be availed of for the newly inserted serious offences. It was, however, contended, on behalf of the appellant, in the learned Special Court, that the learned Special Court was not authorised to exercise power to remand the appellant to custody under Section 167(2) Cr.P.C, because charge-sheet had already been filed and the situation, wherein an accused-can be remanded, under Section 309(2) Cr.P.C, to custody was not available in the present case. (xi) On considering the materials on record and after hearing the learned counsel for the parties, the learned Special Judge, as has been noted earlier, directed that the accused persons, including the present appellant, who had not been granted bail by any Court for the offences under Sections 16, 17, 18, 19 and 20 of the UA (P) Act, be taken into custody with further observation that they may apply, in accordance with law, for fresh bail for the offences under Sections 16, 17, 18, 19 and 20 of the UA (P) Act.;