IRFAN PASHA Vs. NATIONAL INVESTIGATING AGENCY

JUDGEMENT

(1.) This appeal is filed by accused Nos. 1 and 4 challenging the order dtd. 21/4/2021 passed in Spl.C.C. No. 181/2017 on the file of XLIX Additional City Civil and Sessions Judge and Special Court for NIA Cases, Bengaluru rejecting their bail application filed under Sec. 439 of Cr.P.C..

(2.) Brief facts of the case are that, on the complaint filed by one Sri. Jairam a case was registered at the first instance against two unknown persons for having committed the brutal murder of one Sri. Rudresh on 16/10/2016 near Srinivas Medical Stores, Shivajinagar. Later it is the case of prosecution that accused Nos. 1 to 4 conspiring with accused No. 5 came on two motorbikes, accused No. 2 being the pillion rider of Pulsar Motor Bike which was driven by accused No. 3 struck on right side of neck with sharp lethal weapon machete and they fled away. The said Pulsar motorbike was followed by Apache motorbike on which accused Nos. 1 and 4 were moving. As a result, Sri. Rudresh succumbed to the injuries. Subsequently, on 27/10/2016 accused Nos. 1 to 4 have been arrested. At the first instance crime No. 124/2016 was registered for the offence punishable under Ss. 302 , 201 read with Sec. 34 of IPC. Based on the statement of accused No. 4, accused No. 5 was arrested on 2/11/2016. Union of India, Ministry of Home Affairs, Internal Security - 1 Division, North Block, New Delhi in their order No. 11011/33/2016-IS/IV dtd. 7/12/2016 entrusted the investigation to the National Investigating Agency (hereinafter referred to as 'the NIA' for brevity) as per the powers conferred under 6(5) read with Sec. 8 of the NIA Act, 2008. In pursuance of the aforesaid order, the NIA, Hyderabad Branch registered the case as RC- 04/16/NIA/Hyderabad under Ss. 120B, 109, 150, 153- A, 302, 201 read with Sec. 34 of IPC, Ss. 3 and 27 of the Arms Act and Ss. 15 , 16 , 17 , 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the 'UAP Act' for brevity). The NIA after conducting investigation has filed charge sheet for the aforesaid offences citing 117 exhibits and produced 90 documents.

(3.) Appellants - accused Nos. 1 and 4 filed bail application under Sec. 439 of Cr.P.C. before the trial/Special Court contending that assailants were two unknown persons who had come in an unnamed motorcycle, out of whom the pillion rider assaulted the victim with machete, there is nothing on record to show any connection or link of accused Nos. 1 and 4 with the crime; C.W.2 and C.W. 3 have not uttered anything regarding presence of accused Nos. 1 and 4 on the spot; P.W.1 - Jairam whose statement was recorded on 20/10/2016 has mentioned that after the assailant left the place of occurrence in their motorcycle, another motorcycle followed them; one more motorcycle was introduced on 20/10/2016, but, nothing is mentioned attributing any overt acts or their presence in the said statement. Accused Nos. 1 and 4 were arrested on 27/10/2016 and at that time investigating agency did not collect any material connecting accused Nos. 1 and 4 with the case except a bald allegation brought on record on 20/10/2016. Based on the statement of accused No. 4 one Samsung Mobile, Vodafone SIM card, one AirCel SIM card and one button knife was seized. The name of Apache motorcycle was not part of record till the arrest of the accused. Recovery made on the disclosure statement of accused Nos. 1 and 4 are not relevant for appreciation while considering the bail application. The appellants are not members of PFI (Popular Front of India) organization to connect them with the said organization. There are number of CCTV cameras installed by various commercial establishments but the images of accused Nos. 1 and 4 are not found in any of the CCTV footage either at the relevant time of incident or the entire day of the incident. Test Identification Parade held in the Central Prison, Parappana Agrahara by C.W. 26 - Sri. Manjunatha is not connecting accused Nos. 1 and 4 to the alleged offences. It is the case of the prosecution that the witnesses have seen accused Nos. 1 and 4 from their back at a distance of more than 60 feet which prima facie indicates that they have not seen facial features or facial identification or facial steps at the time of incident. Accused Nos. 1 and 4 are languishing in Central Prison, Bengaluru, for a period of 5 years 6 months and still the prosecution has to examine several witnesses and it may require more than five years to conclude the trial. The accused Nos. 1 and 4 being innocent have been unlawfully implicated based on the phone calls, CCTV footage and they are ready to obey the conditions that would be imposed on them for their release. The trial Court after giving an opportunity to the Special Public Prosecutor of NIA heard the matter and rejected the said application. Hence, they have filed the present appeal seeking setting aside the said order and grant of bail.