w w w . L a w y e r S e r v i c e s . i n



National Investigation Agency (Nia), New Delhi v/s Helatoli Rochill & Others


Company & Directors' Information:- U T AGENCY PVT. LTD. [Active] CIN = U45203WB1991PTC052617

Company & Directors' Information:- S K H AGENCY PRIVATE LIMITED [Active] CIN = U52390TG2013PTC085384

Company & Directors' Information:- O M AGENCY PRIVATE LIMITED [Active] CIN = U52321TN1961PTC004668

Company & Directors' Information:- S M AGENCY PVT LTD [Active] CIN = U51109WB1964PTC026129

Company & Directors' Information:- G R AGENCY LTD [Strike Off] CIN = U51109WB1951PLC019409

Company & Directors' Information:- S N Q S AGENCY PRIVATE LIMITED [Active] CIN = U52110TZ1999PTC008761

Company & Directors' Information:- A & N AGENCY PRIVATE LIMITED [Under Process of Striking Off] CIN = U51909TN2003PTC052088

Company & Directors' Information:- A E AGENCY PRIVATE LIMITED [Active] CIN = U65993TN2000PTC044931

Company & Directors' Information:- S R W AGENCY PRIVATE LIMITED [Active] CIN = U52190WB2011PTC160006

Company & Directors' Information:- K L AGENCY PRIVATE LIMITED [Strike Off] CIN = U74899DL1992PTC050493

Company & Directors' Information:- S B T AGENCY PVT LTD [Strike Off] CIN = U51103WB1965PTC026347

Company & Directors' Information:- S B M AGENCY PRIVATE LIMITED [Active] CIN = U51504TN2004PTC052953

Company & Directors' Information:- M P S AGENCY PVT LTD [Active] CIN = U51109WB1998PTC088149

Company & Directors' Information:- A. G. AGENCY PRIVATE LIMITED [Strike Off] CIN = U51109DL2008PTC186212

Company & Directors' Information:- S N AGENCY PVT LTD [Strike Off] CIN = U66010WB1989PTC047981

Company & Directors' Information:- V AND S AGENCY PRIVATE LTD. [Strike Off] CIN = U74999DL1986PTC025148

Company & Directors' Information:- NEW INDIA AGENCY PVT LTD [Strike Off] CIN = U51109WB1929PTC006394

    Criminal Appeal No. 3 of 2017

    Decided On, 08 February 2019

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK & THE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

    For the Appearing Parties: J.A. Hassan, P.B. Paul, Limawapang, Hukavi Zhimo, Hetoka, Advocates.



Judgment Text


Manish Choudhury, J.

The instant appeal by the National Investigation Agency (the NIA, in short) is preferred u/S. 21(4), the National Investigation Agency Act, 2008 assailing the order dated 02.09.2016 passed by the Court of learned Special Judge, NIA, Nagaland at Dimapur in Bail Application No. 170/2016 in NIA Case. No. RC-04/2015/NIA DLI by which learned Special Judge granted bail to the respondent No. 2 in the said NIA Case. The said bail application was preferred for and on behalf of accused Khekaho Rochill, the respondent No. 2 herein that was filed by his wife Smt. Helatoli Rochill, the respondent No. 1 in the instant appeal and by the order dated 02.09.2016, the learned Special Judge, NIA, Nagaland at Dimapur had allowed the said bail application and granting bail to said Khekaho Rochill, who has been impleaded as respondent No. 2 in the instant appeal. The respondent No. 1 in the instant appeal is Smt. Helatoli Rochill, wife of said Khekaho Rochill who filed the said Bail Application No. 170/2016. For convenience, the respondent No. 2, Khekaho Rochill is being referred to as the respondent hereinafter.

2. The matter of investigation by the NIA in the instant case is a terrorist act allegedly committed on 26.03.2015 at about 7:30 a.m. near Indira Gandhi Stadium at Kohima by the members of the organization, National Socialist Council of Nagaland. (Khaplang) [NSCN(K), in short]. In the said incident, 7 (seven) unarmed personnel of the 19th Battalion, Assam Rifles, who were standing at the gate of the said Stadium, were fired upon by the cadres of the NSCN(K) using AK series rifles and pistols and due to such firing, 4 (four) Assam Rifles personnel were seriously injured, where a NCO succumbed to his injuries later. The act was allegedly committed to mark an abrogation of the long-standing ceasefire between the NSCN(K) and the Government of India.

3. With regard to the said incident, a case was initially registered in the North Police Station, Kohima on 26.03.2015 which was registered as North Police Station, Kohima Case No. 29/2015 u/S. 307/326, IPC r/w Section 25(1)(B) of the Arms Act. Thereafter, considering the gravity of the incident, the Ministry of Home Affairs, Internal Security Division, North Block, New Delhi vide an order dated 30.04.2015 directed the NIA to take up the investigation of the said North P.S. Kohima Case No. 29/2015 so as to find out other offences that might come to light during the investigation of the same along with the offences already registered. Accordingly, the Ministry of Home Affairs on 30.04.2015 suo motu transferred the said North P.S. Kohima Case No. 29/2015 for its investigation to the NIA by the said agency pursuant to which the same was re-registered as NIA Case No. RC-04/2015/NIA DLI on 18.05.2015 and accordingly, the NIA commenced its investigation in the said case. In the course of its investigation, the NIA found that the terror act was carried out by the cadres of the NSCN(K) to mark the abrogation of the longstanding ceasefire, which came into operation in 2002 between the NSCN(K) and the Government of India, the validity of which was to expire on 27.04.2015 and that at the relevant time, talks were in progress for its renewal as had been done regularly in the past since the said long-standing ceasefire came into operation. It was in March, 2015, the NSCN(K) leadership unilaterally decided to break the said ceasefire and directed their field cadres to commit a spectacular terrorist attack to show that they were abrogating the said ceasefire. It was pursuant to the said decision taken by the NSCN(K) leadership, the said terrorist act near the said Stadium, Kohima was carried out by the cadres of the NSCN(K) on 26.03.2015.

4. In the course of its continued investigation, the NIA i.e. the investigating and prosecuting agency on 23.11.2015 submitted the Charge sheet No. 11/2015 u/S. 173 of the Code of Criminal Procedure, 1973 (Cr.P.C., in short) before the Court of Special Judge, NIA, Nagaland, Dimapur against 3 (three) accused persons including Khekaho Rochill, the respondent No. 2 in the instant appeal, naming him as A-3 in it. The NIA in the said charge sheet dated 23.11.2015 found sufficient prima facie material evidence against the respondent u/Ss. 120-B/302/307 and 326, IPC and u/Ss. 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 (ULAP Act, in short), as amended. The other 2 (two) accused persons against whom the said charge sheet dated 23.11.2015 was filed, are (i) Ranjit Thapa alias Karan (A-1) and (ii) Kisheto Ayem (A-4). The said charge sheet has also stated that further investigation u/S. 173(8), Cr.P.C. in respect of the roles of the other absconding accused and to establish other aspects of the conspiracy involving other co-accused would be continued. On 14.06.2016, the NIA submitted a supplementary charge-sheet against 3 (three) other accused persons viz. (i) Nasaka Kinny (A-6), (ii) Atoshe (A-8) and (iii) Tapitu alias Tapi (A-13). The said Bail Application No. 170/2016 in the said NIA Case was preferred for and on behalf of the respondent No. 2 on 09.08.2016 before the learned Special Judge, NIA, Nagaland. After hearing the learned Public Prosecutor and the learned counsel for the respondent accused and upon consideration of the materials on record, by his order dated 02.09.2016 the learned Special Judge granted bail to the respondent No. 2. Hence, the instant appeal by the NIA against the said order dated 02.09.2016 with the prayer to set aside and quash the same.

5. We have heard Mr. J.A. Hassan, learned Senior Public Prosecutor for the NIA and Mr. P.B. Paul, learned counsel for the respondents.

6. Mr. Hassan, appearing for the appellant NIA, has submitted that the learned Special Judge, NIA while considering the bail application did not take into account that earlier, 3 (three) successive bail applications were preferred for and on behalf of the respondent accused No. 2 (A-3) and those 3 (three) bail applications were rejected by the Special Court, NIA. It is stated that there was no change in the fact and situation since the rejection of the last bail application of the respondent No. 2 and no new facts were placed by him in his fourth bail application. Since no new fresh grounds were available and pleaded in the said Bail Application No. 170/2016 the learned Special Judge ought not to have taken a different view from the one taken in the earlier bail applications rejecting the same. He has further submitted that the learned Special Judge did not take into consideration the entire materials available against the respondent in the charge sheet filed against him and while considering to grant the prayer for his bail, but only a part of the materials were considered. He has also submitted that while considering the said bail application of a person arrested on accusations for commission of offences under Chapters IV and VI of the said ULAP Act, 1967, the Court is required to form an opinion that the allegations against the accused are not only prima facie true, but there are also reasonable grounds to form such an opinion. In support of his submissions, Mr. Hasan relied on the decisions rendered by the Full Benches of this Hon'ble Court in In Re : State of Assam and another, reported in , : 2007 (1) GLT 330: (2007 Cri LJ 927 (Gau)) and in Rojen Boro and another v. NIA and another, (2016) 4 GauLT 803 (FB).

7. Per contra, Mr. Paul, appearing for the respondents, has submitted that the learned Special Judge, while considering the bail application, perused the entire materials available on record against the accused respondent No. 2. He has submitted that the prayer for bail was granted on 02.09.2016 i.e. after about more than one year and three months in custody, wherein the accused was shown to be arrested on 28.05.2015. He has submitted that the respondent No. 2 after being granted bail, has not misused the liberty and has been regularly appearing in the said NIA Case No. RC-04/2015/NIA DLL He has also submitted that the respondent accused is a high level functionary of the organization, NSCN(K) and at present, he is involved in the ongoing peace process between the NSCN(K) and the Government of India and any adverse order at this stage would be highly prejudicial to the respondent as well as to the ongoing peace process. He has submitted that the learned Special Judge has rightly found that the charge of conspiracy might not be sustainable against the respondent. Being only a member of the organization, NSCN(K), he could not have been arrayed as an accused in the case without there being any prima facie materials available on record against him. In support of his submission, Mr. Paul had relied on the decisions reported in , : in the case of Bhagirathsinh v. State of Gujarat, (1984) AIR SC 372 and the decision rendered by a Division Bench of this Hon'ble Court in Cri. Appeal No. 146/2011 in the case of Songaijam Rakesh Singh v. the National Investigation Agency.

8. We have considered the submissions made by the learned counsels for the parties and also considered the materials referred to by the parties.

9. On a perusal of the order dated 02.09.2016 passed by the learned Special Judge, NIA in NIA Case No. RC-04/2015/NIA DLI it appears that the provisions of section 43-D as well as the provisions of Sections 18 and 20 of the ULAP Act, 1967 were considered. The learned Special Judge had found that the accused was arrested on the allegations that there was possibility of the accused as one of the supporters who was associated with the NSCN(K) for providing financial support to carry out terror activities and he was a member of the Ceasefire Supervisory Board set up by the Government of India to monitor the ongoing ceasefire mechanism at the time of the incident of shooting at the Assam Rifles personnel in the said Stadium at Kohima. The allegations what the Court had found to have levelled against the said accused were that he had visited the co-accused persons in a particular place and that clearly corroborated the fact that the accused - person had prior knowledge of the attack on the personnel of Assam Rifles. It found that only material available on record against the accused was that he was seen with the other co-accused persons. Thus, the Special Court came to a conclusion that only such vague presumption could not establish that the accused was prima facie involved and hence, the charges might not be sustainable without any particular offence being committed by the accused and without showing when, where and with whom the accused had conspired to commit the said offence. Referring to para 16.2 of the charge sheet, the learned Special Judge observed that from the investigation, it was revealed that during the first week of March, 2015 the senior leaders of NSCN(K) met at a secret location in Myanmar and discussed the status of ceasefire with the Government of India and funds collected through extortion in Nagaland. It was decided in the said meeting to abrogate the ceasefire with the Government of India by attacking the security force and it was decided to convey a direction to the field cadres to carry out an attack. It further observed that there being no material on record to show the involvement of the accused being a part of the meeting, the charge of conspiracy might not be sustainable against the accused i.e. the respondent No. 2. The Trial Court further observed that trial was at the stage of examination of prosecution witnesses and he was under detention for about one year and three months. Relying on the medical certificates submitted by the accused, considering the submissions of the learned counsel for the accused and the observations made therein, the learned Special Judge decided to grant the prayer of bail made on behalf of the respondent accused. In respect of said accused Khekaho Rochill, the respondent herein, the charge sheet has been submitted u/S. 120-B/302/307/326, IPC r/w Sections 18 and 20 of the ULAP Act, 1967, as amended, and thereafter, charges have been framed against him under the said penal sections.

10. Since the issue in the instant appeal pertains to the offence defined u/Ss. 18 and 20 of the ULAP Act, 1967, as amended, the said provisions are extracted hereunder:-

"18. Punishment for conspiracy, etc.- Whoever conspires or attempts to commit, or advocates, abets, advises or (incites, directs or knowingly facilitates) the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

'20. Punishment for being member of terrorist gang or organization.-Any person who is a member of a terrorist gang or a terrorist organization, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine."

11. As in the matter of grant or refusal of bail of the accused allegedly involved in the offences described u/Ss. 18 and 20 of the ULAP Act, 1967, as amended, the provisions of Section 43-D is applicable, more particularly sub-Section (5) thereto, it is also apposite to quote the same here:

"43-D. Modified application of certain provisions of the Code.-

(1) 'Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of Section 2 of the Code, and 'cognizable case' as defined in that clause shall be construed accordingly.

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),-

(a) The references to 'fifteen days', 'nineteen days' and 'sixty days' wherever they occur, shall be construed as references to 'thirty days', 'ninety days' and 'ninety days' respectively; and

(b) After the proviso, the following provisos shall be inserted, namely:-

'Provided further that if it is not possible to compete the investigation within the said period of ninety days, this Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days: Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody,'

(3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that-

(a) the reference in sub-section (1) thereof-

(i) to 'the State Government' shall be construed as a reference to 'the Centra/Government or the State Government',

(ii) to 'order of the State Government' shall be construed as a reference to 'order of the Central Government' or the State Government, as the case may be'; and

(b) The reference in sub-section (2) thereof, to 'the State Government' shall be construed as a reference to 'the Central Government or the State Government, as the case may be'.

(4) Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act.

(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true,

(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, it he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing."

12. The matter of consideration for grant or refusal of bail u/S. 43-D(5) of the ULAP Act, 1967, as amended, came up for consideration before a Full Bench of this Hon'ble Court in the case of Rojen Boro and another v. National Investigation Agency and another, (2016) 4 GauLT 803(FB), wherein the Full Bench after consideration of the entire aspects of the matter has observed as under:-

"20. Having discussed the above, we may now proceed to examine Section 43-D(5) of the ULAP Act. Basic requirements of Section 43-D(5) of the ULAP Act have already been noticed above, a person arrested on the accusation of committing an offence under Chapters IV and VI of the ULAP Act shall not be released on bail unless the Public Prosecutor has been given an opportunity of being heard and upon perusal of the case diary or the report made under Section 173, Cr.P.C, Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

21. In Jayanta Kumar Ghosh v. National Investigation Agency, (2010) 4 GauLT 1, a Division Bench of this Court had the occasion to analyse the provisions contained in Section 43-D(5) of the ULAP Act. While doing so, the expression 'prima facie true' as appearing in the said section was gone into in some detail. After referring to various dictionary meanings of the expression prima facie, the Division Bench held that prima facie is a Latin word, which means 'at first sight or glance or on its fact' and in common law, it is referred to as the first piece of evidence of fact i.e., considered true unless revoked or contradicted. Thus, it may be construed that prima facie case would mean whether inference drawn is a possible inference or not. Thereafter, the Division Bench went on to examine the word 'true', which has been used in conjunction with the expression prima facie. After referring to various dictionary meanings, it was held that the term 'true' would mean a proposition that the accusation brought against the accused person on the face of the materials collected during investigation is not false. Though the Division Bench went on a detailed exposition of the expression 'prima facie true', without elaboration it can safely be said that it would mean that the accusation against the accused person is a possibility which is inferable from the materials on record.

25. Finally a Division Bench of this Court in NIA v. Redaul Hussain Khan, (2010) 3 GauLT 302, after examining various Apex Court judgments held that the expression 'reasonable ground' means something more than prima facie ground, which contemplates a substantially probable case for believing that the accused is guilty of the offence alleged. In the context of Section 43-D(5) of. the ULAP Act, the Division Bench held that if the Special Court on examination of the materials collected during investigation finds reasonable grounds to infer that the case which has been made out against the accused is not wholly improbable, it would be sufficient for the Special Court to form an opinion that there are reasonable grounds to believe that the accusation made against the accused is prima facie true.

26. Having noticed the operational fields of Section 228, Cr.P.C. on the one hand and Section 43-D(5) of the ULAP Act on the other hand, what emerges from the above is that while scrutinizing the materials on record, if there is a strong suspicion that the accused has committed the offence or there is strong suspicion about the culpability of the accused, that would be sufficient for the Court to frame charge against the accused under Section 228, Cr.P.C. However, while considering bail of a person arrested on an accusation of having committed an offence under Chapters IV and VI of the ULAP Act, the Court must not only form an opinion that the accusation against the accused is prima facie true, but such opinion has to be based on reasonable grounds, which has been explained to mean something more than prima facie grounds, contemplating substantial probable causes for believing that the accused is guilty of the accusation. Thus, the standard of scrutiny in both the fields are different. While it is strong suspicion at the stage of framing of charge, on the other hand, while considering the bail under Section 43-D(5), it is something more than prima facie grounds for believing that accused is guilty of the alleged offence(s). In other words, the standard of scrutiny to determine prima facie correctness of the accusation against the accused while considering bail under Section 43-D(5) is much higher than at the stage of framing of charge.

29. Having noticed the legal position as above, provisions of Section 43-D(5) of the ULAP Act may once again be examined. It starts with the expression 'notwithstanding anything contained in the Code'. In other words, it would mean notwithstanding the provisions of Cr.P.C, Section 43-D(5) of the ULAP Act would have overriding effect. In the present context, it would mean two things. Firstly, it would mean notwithstanding the provision of Section 228, Cr.P.C, Section 43-D(5) of the ULAP Act would have overriding effect. Secondly, it would mean that Section 43-D(5) of the ULAP Act would be in addition to the provisions relating to bail contained in the Cr.P.C. such as Section 437. If that be so, there can be no manner of doubt that operation of Section 43-D(5) of the ULAP Act is independent of Section 228, Cr.P.C. and the latter provision cannot control operation of the former. The referral order is right when it points out that Section 43-D of the ULAP Act nowhere mandates that once charge is framed against the accused under Section 228, Cr.P.C, the Court shall presume that he has committed the offence and shall not be entitled to bail. It is trite that a penal provision has to be read and interpreted strictly.

30. We also have to keep in mind that we are considering prayer for bail at a stage post framing of charge. No doubt, Section 43-D (5) of the ULAP Act is a special provision, which has been introduced as part of the State's response to the menace of terrorism, which is affecting large parts of our country and that its conditions are extremely stringent. Here we have to bear in mind that by specifically mentioning the words 'on a perusal of the case diary or report made, under section 173 of the code' in the proviso to Section 43-D (5) of the ULAP Act, the legislature has prohibited consideration of any material beyond the case diary or the report made under Section 173, Cr.P.C. for consideration of bail; the inevitable consequence being that any evidence led after framing of charge would remain outside the purview of consideration for the limited purpose of granting bail. But having said so, it cannot also be overlooked that grant of bail is a discretionary power conferred upon the Court. Though extremely stringent conditions are imposed while considering bail under Section 43-D(5) of the ULAP Act, it is one thing to say that discretion is to be exercised by the Court with circumspection having regard to the stringent nature and overall object of the provision, but it would be an altogether different proposition to say that that the Court would have no discretion at all to consider bail once charge is framed. Having formulation of a legal proposition which says that once charge is framed, there can be no bail. Bail jurisprudence stands on a different footing altogether and as a legal principle, the Court cannot be denuded of the discretion to consider bail at any stage of the proceeding. It is not unusual to find that even after conviction, at the appellate stage, the Appellate Court is not denuded of the power to consider bail of the accused appellant even though presumption of innocence of the accused appellant would no longer be available at the appellate stage. In Redaul Hussain Khan (supra), a Division Bench of this Court observed that no legal formula of universal application can be evolved as to when a person accused of an offence be allowed to go on bail. It would be inappropriate to try to evolve an universal formula for application of discretionary jurisdiction of the Court in the matter of bail. In Gurcharan Singh v. State (Delhi Administration), (1978) AIR SC 179 : (1978) 1 SCC 118 : ). the Supreme Court held that there cannot be an inexorable formula in the matter of granting bail. Facts and circumstances of each case will govern the exercise of judicial discretion while considering bail."

13. In the charge sheet dated 23.11.2015 submitted u/S. 173, Cr.P.C. by the NIA, a total of twelve persons have been arrayed as accused and the respondent's name has been found at serial No. 3(A-3). For easy reference, the other accused persons are referred to herein as A-1, A-2, A-4, A-5, A-6, A-7, A-8, A-9, A-10, A-11, A-12, A-13 and A-14. In the said charge sheet, it is stated that from the investigation, it is revealed that during the first week of March, 2015, senior-most leaders of NSCN(K) met at a secret location in Myanmar and discussed the status of ceasefire with the Government of India and funds collected through extortion in Nagaland. They also assessed their muscle power in the form of number of cadres and availability of arms, ammunition and explosives. The senior leaders of NSCN(K) which included A-12, A-11, A-9, A-10 and few others, decided to abrogate the ceasefire with the Government of India by attacking the security forces and it was decided to convey a direction to the field cadres to carry out an attack. Accordingly, A-11, A-9 and A-10 issued directions through mobile phones and other means to their cadres and particularly, at Kohima for making of the preparations and taking security measures before announcing the abrogation of the ceasefire unilaterally by attacking the security forces. It has further been said that the respondent (A-3), who was the Finance Secretary of NSCN(K) and also a member dealing with the Ceasefire Supervisory Board (CFSB), set up by the Government of India, to monitor the ongoing ceasefire mechanism, was directed by A-11 around 23rd/24th March not to attend any meeting with the Board and also to leave Kohima at the earliest and accordingly, the respondent (A-3) left Kohima on 24.03.2015. The Investigation Agency has further claimed that the Finance Secretary of NSCN(K) and a senior office bearer i.e. the respondent (A-3) was arrested on 28.05.2018. During the arrest of the respondent, mobile phones, laptops, voter ID card and ATM card were recovered from his possession. The mobile phone and laptop were sent to CERT-In for forensic examination. The examination of the respondent (A-3) has revealed the involvement of others. As per the disclosure by the respondent (A-3), the top leadership of NSCN(K) including A-11, military leader-in-chief of NSCN(K) had ordered to ambush the security forces to show their military strength and to administer the abrogation of the ceasefire with the Government of India and to spread terror in the minds of general public for collection of more extortion money. The respondent (A-3) has been an active member of NSCN(K) for more than ten years. He joined as a Personal Secretary and over the period of time, he rose to become the Finance Secretary of NSCN(K). He was also representing the NSCN(K) before the Ceasefire Supervisory Board (CFSB) at Kohima and thus, his association with NSCN(K) is said to be established. It is further stated in the charge sheet that one protected witness, in an identification proceeding, has identified the respondent (A-3) along with A-4, A-5 and A-10 and A-1 having been a regular visitor to a particular place in Kohima together and the same goes to prove their association. Relevant records pertaining to the stay and visits of the respondent (A-3) in that place was also taken on record. The Investigation Agency claims that the above analysis clearly corroborates that the respondent (A-3) was having prior knowledge about the planning and preparation of NSCN(K) for attack on the personnel of Assam Rifles. The respondent (A-3) along with his senior leaders was assisting the said terror attack. The materials in respect of the respondent (A-3) in charge sheet also states that the report received from the CERT-In, New Delhi after the forensic examination of mobile phones and laptops, seized from the respondent, it is established that he was in regular communication with senior leaders of NSCN(K) including A-11, A-10, A-9, A-5, A-4 and others prior to the terrorist act. On further analysis of his mobile phones, it has been established that there were communications between the respondent (A-3) and other persons who were involved in the attack on the Assam Rifles personnel, thereby, proving his association with the attackers. The materials available has established that telephone numbers with whom the respondent (A-3) was in constant touch, belong to senior NSCN(K) cadres active in the State of Nagaland. The SMSs saved in the mobile phones have revealed financial transaction of the respondent (A-3) with the senior cadres. As per the CDR analysis, the respondent (A-3) was closely associated with Kohima Town Commander (A-4) on mobile phone and with others. The CDR analysis also shows that the respondent (A-3) left Kohima around afternoon on 24.03.2015 vacating the designated camp, after talking with senior NSCN(K) cadres, A-10 on 23.03.2015. The CDR analysis indicates frequent communication between the respondent (A-3) and senior leaders namely, A-10 and A-9 which circumstantially establishes his prior knowledge of the conspiracy and execution of an impending terrorist attack which followed on 26.03.2015. The investigation conducted also establishes that the respondent (A-3) and (A-4) belong to NSCN(K) along with A-1 and having common intention and motive, conspired to attack the personnel of Assam Rifles on 26.03.2015 at Indira Gandhi Stadium, Kohima with sophisticated firearms.

14. The NIA has mentioned that sufficient substantive evidence has been collected which includes evidences comprising of statements of eye-witnesses, other witnesses, injured persons as well as statements recorded under Section 164, Cr.P.C. of two accused persons as well as documentary evidence related to material exhibits seized during investigation, forensic examination reports, CDR analysis reports of the mobile numbers which have been collected during investigation and other circumstantial evidence which conclusively establish the involvement of the accused persons including the respondent (A-3) in the said attack. The agency has asserted that the respondent accused (A-3) and the other accused, A-4 conspired, funded, planned and assisted in execution of the terror attack oh the Assam Rifles personnel executed on 26.03.2015. The intention of the accused persons by the said terrorist act, was to cause and strike terror in the minds of the people of India and, thereby, causing threat to the security and integrity of the country. The accused, A-1 assisted the cadres involved in the attack. The accused persons, A-5, A-6, A-7 and A-8 carried out the strike armed with sophisticated firearms which included two AK-47 and these four NSCN(K) cadres were ferried to the place near Indira Gandhi Stadium, Kohima by the accused, A-1. It may be worthwhile to state that when the bail application was considered on 02.09.2016 by the learned Special Judge, NIA, the supplementary charge sheet dated 14.06.2016 was already on record and the same discloses that the respondent (A-3), the top leadership of NSCN(K) including the military Commander-in-Chief had ordered to ambush the Assam Rifles Personnel to show their military strength, to abrogate the ceasefire with the Government of India and to spread terror in the mind of general public for more collection of extortion money. The agency further asserts that the forensic reports of mobile phones and laptops of the respondent (A-3) clearly establish his association with the prescribed terrorist organization and also his involvement in the extortion and terrorist activities related to the case.

15. The investigation agency in the charge-sheet and the supplementary charge sheet filed by them, has also enclosed enclosures like list of witnesses, list of documents, list of articles and also a list of protected witnesses along with relevant documents and statements. By these statements of witnesses, documents, articles and statements of protected witnesses, the investigation and prosecuting agency has asserted that the same are the materials to be produced and evidence are to led during the course of the trial to bring home the charges against the charge sheeted accused persons including the respondent (A-3).

16. When the order dated 02.09.2016 passed by the Special Court, NIA is perused, it appears that the said Court has considered a part of the materials available in the report submitted u/S. 173, Cr.P.C. What are the materials to be submitted along with the charge sheet is clearly specified in Section 173, Cr.P.C., more particularly, sub-sections (5) and (6) thereto. As such, the report made u/S. 173, Cr.P.C. includes all the materials forwarded to the Court along with the report. The conditions contained in Section 43-D(5) of the ULAP Act, 1967 stipulates that at the time of consideration of a bail application of an accused person charged under any of the offences punishable under Chapters IV and VI of the said 1967 Act, the Court has to consider the entire materials forwarded along with the report made u/S. 173, Cr.P.C. In the instant case also, the statements of the witnesses, the documents, articles and the statements of protected witness are part of the report submitted u/S. 173, Cr.P.C.

17. In the instant case, the charge sheet has been submitted against the respondent (A-3) for conspiring, funding, planning and assisting in execution of the terrorist attack on the Assam Rifles personnel on 26.03.2015.

18. The ingredients of the offence of criminal conspiracy has been discussed in detail by the Apex Court in Yakub Abdul Razak Menon v. State of Maharashtra, (2013) 13 SCC 1. The gist of the offence of criminal conspiracy has been summarised by the Apex Court in the paragraph 150, thereof, as under:-

"150. The law on the issue emerges to the effect that conspiracy is an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means. The object behind the conspiracy Is to achieve the ultimate aim of conspiracy. In order to achieve the ultimate object, parties may adopt many means. Such means may constitute different offences by themselves, but so long as they are adopted to achieve the ultimate object of the conspiracy, they are also acts of conspiracy. For an offence of conspiracy, it is not necessary for the prosecution to prove that conspirators expressly agreed to do an illegal act, the agreement may be proved by necessary implication. It is also not necessary that each member of the conspiracy should know all the details of the conspiracy. Conspiracy is a continuing offence. Thus, if any act or omission which constitutes an offence is done in India or outside its territory, the conspirators continue to be the parties to the conspiracy. The conspiracy may be a general one and a smaller one which may develop in successive stages. It is an unlawful agreement and not its accomplishment, which is the gist/essence of the crime of conspiracy. In order to determine whether the conspiracy was hatched, the court is required to view the entire agreement and to find out as in fact what the conspirators intended to do."

19. The gist of the evidence of criminal conspiracy is an agreement to abrogate the law. In other words, there shall be an agreement between the parties to do a single illegal act or it may comprise of commission of a number of illegal acts. In respect of the offence of criminal conspiracy, all conspirators are liable for the acts of each other and the agreement or crimes which have been committed as a result of the conspiracy. If a number of persons conspire to commit an offence and the overt act is done by only one of them, then also the act of one person makes the act an act of each and all the conspirators. Criminal conspiracy is hatched either in private or in secrecy. It is very difficult to establish criminal conspiracy by direct evidence and its objects are to be inferred usually from circumstances and the conduct of the accused. Criminal conspiracy itself is a substantive evidence and it is distinct from the offence to be committed or already committed but the criminal conspiracy is complete as soon as the agreement is made to commit an illegal act or to commit an act in an illegal manner. It is settled that in an offence of criminal conspiracy, the prosecution need not necessarily prove that the conspirators expressly agreed to do or cause to do the illegal act. The crime may be proved by necessary implications. The offence can be proved from the inferences drawn from the acts committed by the conspirators in pursuance of a design. In a criminal conspiracy it is not necessary that all the persons involved in the conspiracy must know all the details of the conspiracy.

20. The provision of Section 43-D(5) of ULAP Act, 1967 does not speak about evidence and it only refers to the case diary or the report made under Section 173, Cr.P.C. It is, therefore, clear that while considering the matter of grant or refusal of bail the Court has to peruse the materials available in the case diary or in the report made under Section 173, Cr.P.C. It has been observed in the Full Bench decision in Rojen Bom (supra) that the legislature has prohibited consideration of any material beyond the case diary or the report made under Section 173, Cr.P.C. for consideration of bail and the inevitable consequence is that any evidence led after framing of charge would remain outside the purview of consideration for the limited purpose of granting bail. At the stage of framing charge, as per Section 228 Cr.P.C., the Judge is required to form an opinion that. there is ground for presuming that the accused has committed an offence after consideration of the case record and after hearing the parties and thereafter, he frames a charge against an accused. The presumption, at the stage of framing a charge under Section 228, Cr.P.C. means drawing an inference upon consideration of the case record and hearing the parties. At that stage, only in the event the Court finds that whatever materials brought on record by the prosecution against an accused even after assuming to be true without being rebutted, does not make out a prima facie case, the Court has to discharge the accused under Section 227, Cr.P.C. Once charges are framed under particular offences, then it is accepted that the materials brought on record against the accused have been found to be prima facie true.

21. A Division Bench of this Court in NIA v. Redaul Hussain Khan, (2010) 3 GauLT 302 has held that the expression "reasonable grounds means something more than prima facie ground". The Full Bench Rojen Boro (supra) after noticing the operational fields of Section 228, Cr.P.C. and Section 43-D(5) of the ULAP Act, has held that while considering bail prayer of a person arrested on an accusation of having committed offences under Chapters IV and VI of the ULAP Act, the Court must form an opinion that the accusations against the accused are prima facie true and such opinion has to be based on reasonable grounds. The expression "reasonable grounds" has been explained to mean something more than prima facie grounds and only in the event such an opinion is not formed, it is open to the Court to exercise its discretionary jurisdiction to grant bail. In view of such settled position of law and on consideration of the materials brought on record against the respondent accused (A-3) and on perusal of the impugned order dated 02.09.2016 passed by the Special Court, NIA, what emerges is that the Special Court while granting bail to the respondent accused had considered a part of the materials available on record and did not consider certain other materials available therein and by considering a part of the said materials had come to a conclusion, that the charge of criminal conspiracy might not be sustainable against the respondent accused. As have been discussed above, there may not be any direct evidence in respect of an offence of criminal conspiracy and for an offence of criminal conspiracy the ingredients of the offence are to be inferred from circumstances and the conduct of the accused. To find out as to whether the ingredients of criminal conspiracy are available or not and as to whether the necessary inferences can be drawn from the circumstances and the acts of the accused, as assorted by the investigating and prosecuting agency, a perusal of the entire materials on record is sine qua non. It is only after perusal of the entire materials, an opinion has to be formed as to whether there are reasonable grounds for believing that the accusation against such person is prima facie true or not and only after formation of such an opinion, it is permissible for the Court to decide the matter of an accused person arrested on accusation of having committed offences under Chapters IV and VI of the ULAP Act. But such deliberation, in our considered opinion, has not been done in the instant case, by the learned Trial Court.

22. In the case of Songaijam Rakesh Singh (supra), relied on by the learned counsel for the respondent, the consideration of bail was made on perusal of the entire materials available against the appellant therein and the Court reached an opinion that the charge of conspiracy might not be sustainable against the appellant. In the instant case, while granting bail to the respondent, the Special Court had considered only a part of the materials available on record and did not consider the other materials on record, from where the Court had to see whether the inferences could be drawn as regards the offences of criminal conspiracy of the respondent or not. The Full Bench decision of this Hon'ble Court in In Re: State of Assam, (2007) CriLJ 927 (Gau) (supra) has referred to the observations of the Apex Court made in the case of Prahlad Singh Bhati v. NCT, Delhi and Anr., (2001) CriLJ 1730 and the relevant extracts of the observations of the Apex Court made therein are as under:-

"It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

23. In such situation, the decision in Songaijam Rakesh Singh (supra), is distinguishable to the fact situation of the present case. The decision in Bhagirathsinh v. State of Gujarat, (1984) AIR SC 372 (supra) pertains to cancellation of bail and thus, is not relevant for the purpose of adjudication of the issue involved in the instant appeal. As in the instant appeal we are concerned with the legality and validity of the order dated 02.09.2016, the other submissions made by the learned counsel for the respondent requires no further deliberation. Other submissions like not misusing liberty by the respondent, etc. also does not require further deliberation.

24. There is another asp

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ect of the matter. It has been submitted by the learned counsel for the appellant that earlier the bail application, B.A. No. 384/2015 that was filed for and on behalf of the respondent accused (A-3) was dismissed on 29.06.2015. Thereafter, another application, BA No. 512/2015 was filed, which was withdrawn on 24.11.2015. Subsequent to that a third bail application, BA No. 544/2015 was filed by the respondent accused that was rejected by the Special Judge, NIA, Nagaland at Dimapur by an order dated 22.12.2015. The charge sheet was submitted on 23.11.2015 and at the time of consideration of said BA No. 544/2015 the said charge sheet was on record and the materials available therein had been duly considered by the learned Special Court, NIA. It was only after consideration of the materials available therein, the learned Special Court NIA had rejected the bail application of the respondent accused. In Re : State of Assam (supra), it has been held by the Full Bench of this Hon'ble Court that when a bail application of an accused has been rejected earlier on certain sets of material on record, then if in a subsequent bail application the Court decides to grant bail on the same set of materials, the Court is required to indicate as to what are the subsequent developments or as to why a departure has to be made. In such cases, the Court has a duty to record what are the fresh grounds which has persuaded it to take a view different from the one taken in the earlier applications. In observing so, the Court has referred to the following observation of the Apex Court. In Kalyan Ch. Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr., (2005) AIR SC 921 (2005) 2 SCC 42 : ). "therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application." 25. It is noticed that when the third bail application, BA No. 544/2015 of the respondent (A-3) was rejected on 22.12.2015 by the Special Court, NIA, the charge sheet submitted on 23.11.2015 was on record and the materials available therein were perused. When the fourth application, BA No. 172/2015 came to be considered by the Special Court NIA on 02.09.2016, the charge sheet dated 23.11.2015 as well as the supplementary charge sheet dated 14.06.2016 were available on record, meaning thereby, certain additional materials were also available on record in respect of the case. There appears to be no change in the fact situation insofar as the respondent accused (A-3) is concerned during the period since the rejection of his earlier bail application on 22.12.2015 and no new "facts were pleaded in the subsequent bail application. In the said backdrop, it is incumbent on the part of the Special Court to state the reasons expressly as to why the departure has been made by granting the bail by the impugned order dated 02.09.2016 when there is no apparent change in the fact situation obtained in the case in respect of the respondent (A-3). 26. The other aspects which were taken into consideration by the learned Special Court, while passing the impugned order dated 02.09.2016 were the period of detention of the respondent and the medical certificates submitted by him. Insofar as the medical ground is concerned, it transpires that the condition of respondent (A-3) did not indicate that there was requirement of any advanced treatment. On the other hand, the period of detention is not a ground to be considered for grant of bail for offences under Chapters IV and VI of the ULAP Act while considering a bail application under Section 43-D(5) of the said Act. 27. In view of the settled position of law mentioned above and for the reasons and observations made hereinabove, we are of the considered view that the impugned order dated 02.09.2016 is not tenable and sustainable in law. Accordingly, the said order dated 02.09.2016 passed by the learned Special Court, NIA, Nagaland in Bail Application No. 170/2016 granting bail to the accused respondent No. 2 (A-3) Khekaho Rochill in NIA Case No. RC-04/2015/NIA/DLJ is hereby set aside and quashed. 28. Since, the impugned order of bail dated 02.09.2016 of said accused respondent No. 2 (A-3) in said NIA Case No. RC-04/2015/NIA/DLI has been cancelled, therefore he, namely, Khekaho Rochill is directed to surrender before the Court of learned Special Judge, NIA, Nagaland at Dimapur in NIA Case No. RC-04/2015/NIA/DLI on or before 22.02.2019. However, it is observed that on his such surrender, if the said accused respondent No. 2 (A-3) files a fresh bail application, the same shall be considered in accordance with law. 29. The appeal is accordingly allowed.
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