KEKHRIESATUO TEP ETC. versus NATIONAL INVESTIGATION AGENCY

Citation: [2023] 3 S.C.R. 523 · Decided: 12-04-2023 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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[2023] 3 S.C.R. 523
523
KEKHRIESATUO TEP ETC.
v.
NATIONAL INVESTIGATION AGENCY
(Criminal Appeal Nos. 415-417 of 2019)
APRIL 12, 2023
[B. R. GAVAI AND SANJAY KAROL, JJ.]
Unlawful Activities (Prevention) Act, 1967 – ss. 39, 40, 43D(5)
– Bail under –Special Judge found that appellants had not voluntary
succumbed to the demands of the organization and investigating
agency admitted that accused persons were cooperating in
investigation –Bail was granted by the Special Judge – However,
High Court reversed the order of the Special Judge – Before the
Supreme Court, appellants contended that they were forced to make
payments – Held: There are twin requirement under sub-section (5)
of s. 43D – First one being that the public prosecutor has to be
given an opportunity of being heard – Second one, that the Court
is of the opinion that there are reasonable grounds for believing
that the accusation against such a person is prima facie true –In the
instant case, the first requirement was met – As far as second
requirement is concerned, a perusal of Sections 39 and 40 of the
said Act would itself reveal, that for an act to constitute as an offence
within the meaning of that section, it has to be done with the intention
of furthering the activities –The Court has to differentiate between
those who commit extortion on their own volition and those who are
coerced to pay by compulsion –The Special Judge found that the
prosecution was not able to show that the accused had voluntarily
contributed to the funding of the outlawed outfits to execute their
nefarious activities – Prima facie opinion of Special Judge cannot
be said to be perverse – Impugned orders quashed and set aside.
Allowing the appeal, the Court
HELD: 1. The additional requirement, as provided under
subsection (5) of Section 43D of the said Act is twin. The first
one being that the public prosecutor has to be given an opportunity
of being heard. The second one, that the Court is of the opinion
that there are reasonable grounds for believing that the
accusation against such a person is prima facie true. [Para
14][529-C]
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524
SUPREME COURT REPORTS
[2023] 3 S.C.R.
2. Undisputedly, in the present case, the first requirement
has been complied with. 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, this Court
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. [Para 15][529-D-E]
3. 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.
[Para 17][529-G]
4. The Special Judge has himself distinguished cases of
the persons who have indulged into extortion for furthering the
activities of the organization and the persons like the present
appellants, who were government servants, and compelled to
contribute the amount. This Court, therefore, find that it cannot
be said that the prima facie opinion, as expressed by the Special
Judge, could be said to be perverse or impossible. [Para 19][530-
B]
Thwaha Fasal v. Union of India (2021) SCC OnLine
SC 1000; National Investigation Agency v. Zahoor
Ahmad Shah Watali (2019) 5 SCC 1 : [2019] 5 SCR
1060; Ranjitsing Brahhmajeetsing Sharma v. State of
Maharashtra and Another (2005) 5 SCC 294 : [2005]
3 SCR 345 – referred to.
Case Law Reference
[2019] 5 SCR 1060
referred to
Para 13
[2005] 3 SCR 345
referred to
Para 13
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 415-417 of 2019.
From the Judgment and Order dated 08.05.2018 of the High Court
of Gauhati in CRLA Nos. 416, 417 and 419 of 2017.
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With
Criminal Appeal No. 418 of 2019.
R. Basant, Sr. Adv., Nandadevi Deka, Savyasachi Rawat, M.
Padhi, Anand Varma, Advs. for the Appellants.
V. Mohana, Sr. Adv., Rajat Nair, Ms. Suhasini Sen, Harish Pandey,
Vatsal Joshi, Vinayak Sharma, Arvind Kumar Sharma, Ms. Bhavya
Pande, Advs. for the Respondent.
The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. The Criminal Appeal Nos.415-417 of 2019 and Criminal Appeal
Nos.418 of 2019 challenge the judgments and orders dated 8th May
2018 and 3rd September 2018 respectively, passed by the learned Di

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