Crl.A. 188/2011 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE U.B. SAHA Amitava Roy, J The instant appeal is under Section 21(4) of the National Investigation Agency A ct, 2008 (hereinafter for short referred to as the Act,2008) laid against the or der dated 14.10.2011 passed by the learned Special Judge/NIA, Assam, Guwahati re jecting the application filed by the appellant U/s. 437 CrPC for grant of interi m bail to him for a limited period, chiefly on the ground of serious illness of his mother, who stands admitted in a hospital and is under intensive medical att ention. We have heard Mr. A. Choudhury, learned counsel for the appellant assisted by Ms . B Choudhury, Advocate and Mr. D.K. Das, learned Standing Counsel, National Inv estigation Agency. The essential facts, in brief ought to be recited for better comprehension of th e rival arguments. The appellant had been arrested on 30.10.2009 in connection with NIA Case No.1/2 009 and Case No.2/2009 registered under Section 120B/121/121A IPC read with Sect ion 16, 17, 18 & 20 of Unlawful Activities (Prevention) Act, 1967 and 120B/121/ 121A IPC and Section 16,17,18,19,20, UA(P) Act,1967 and Section 25(1-d) of the A rms Act respectively. The charge sheets have been laid amongst others against hi m in both the cases correspondingly on 17.11.2009 and 18.10.2010. During his co nfinement in custody as above, his father Balaram Ghosh having expired on 16.12. 2009, an application was filed by one Shri Suman Ghosh, his nephew, on his behal f seeking interim bail so as to enable him to perform the last rites and rituals of the deceased. Essential documents with regard to the genuineness and authen ticity of the ground were also appended to the application. The learned Special Judge/NIA, Guwahati by his order dated 17.12.2009 after hear ing both the parties, granted interim bail as prayed for. Noticeably, the learn ed Standing Counsel, NIA did not object to the grant of such bail for a few days , provided it was accorded subject to the furnishing of sufficient surety and se curity. The learned Standing Counsel also made this concession on humanitarian considerations. Vide this order, the appellant was thus granted interim bail up to 21.12.2009 f or an amount of Rs.50,000/- with one surety of the like sum. Having regard to t he urgency expressed, cash amount of Rs.50,000/- was allowed to be deposited for the release of the appellant. A bond of an identical amount was also required to be furnished by the petitioner Shri Suman Ghosh. The appellant was directed to appear on 22.12.2009. On that date, i.e. 22.12.2009 on an application being filed to that effect, the period of interim bail was extended requiring the appellant to appear before the learned Special Judge/NIA, Guwahati on 02.01.2010 at 10.30 a.m., which he accor dingly did. In the application filed before the learned Court below seeking interim bail on the ground of serious illness of his mother, the appellant inter alia annexed th ereto the supporting medical documents to highlight that her condition is critic al as assessed by the attending doctor. He also took the ground of illness of h is wife, she being suffering from chronic degenerative problem of lumbosacral sp ine which requires clinical supervision on daily basis from orthopaedic and neur osurgical consultant. The learned trial Court rejected the prayer noting the f act that meanwhile, charge sheets have been submitted in both the cases, in whic h the appellant stands implicated and that there is strong prima facie case agai nst him rendering it impermissible to accede to his prayer in view of the statut ory restriction imposed by Section 43(D) (5) of the Unlawful Activities (Prevent ion) Act, 1967 (for short referred to as the Act, 1967). Mr. Choudhury has argued that the submission of the charge sheets in the releva nt cases notwithstanding, having regard to the ground(s) on which the interim ba il is sought for, proviso to Section 43(D) (5) of the Act,1967 is not an insurm ountable bar and that the learned Court below grossly erred in rejecting the app lication for interim bail. The learned counsel has urged that the hearing on th e charge based on the materials collected in course of the investigation has not yet concluded, the appellant having not yet been furnished with all the essenti al documents as contemplated in Section 207 of the CrPC. While contending that even at the stage of hearing on the issue of framing of charge, it is open for t he appellant to contend and establish that no reasonable ground subsists to even prima facie establish his complicity in the offences alleged, Mr. Choudhury has insisted that the grounds, on which the prayer for interim bail has been reject ed by the learned Court below are wholly untenable in law and on facts. The lea rned counsel has beseeched this Court to take note of the exceptional fact situa tion that prevails namely, the critical state of the mother of the appellant and to entertain the prayer for interim bail with compassion. This however Mr. Cho udury has urged is without prejudice to his plea of permissibility of grant of i nterim bail the proviso to Section 43(D) (5) of the Act,1967, notwithstanding. T hat the appellant had been earlier released on bail on somewhat similar consider ations and that not only he did rigorously comply with the conditions therefor, he did not as well abuse the liberty granted has also underlined before this Cou rt. Mr. Choudhury has submitted, on instructions that the amount of Rs.50,000/- deposited on behalf of the appellant as security on the last occasion still lie s with the learned Court below. Mr. Das, on the basis of the written instructions received vide the letter dated 11.11.2011 of the Superintendent of Police, NIA, has pleaded the statutory bar under Section 43(D)(5). In addition thereto, the learned Standing Counsel has co ntended that the delay in the hearing of the charge cannot be attributed to the prosecution, the same having resulted in view of the intervening proceedings bef ore this Court at the instance of the accused persons including the appellant. R elying on certain observations made by a Division Bench of this Court in Nationa l Investigation Agency Vs. Redaul Hussain Khan, 2010 (3) GLT 302, Mr. Das has emphasized that the genuineness of the ground of the illness of the mother of t he appellant ought to be ascertained. Without prejudice to he above, Mr. Das ha s submitted that in case this Court is inclined to grant interim bail as prayed for to the appellant, the investigating agency be permitted to provide an escort to accompany him during his period of liberty. We have duly considered the submissions made as well as the materials available on record. That the appellant is in custody from 30.10.2009 and that charge shee ts in the related cases have been submitted on 17.11.2009 and 18.10.2010 respect ively are matters of record. It is also not disputed before us that though, arguments on behalf of the prosec ution have been concluded, those for the accused persons are yet to be made. Thi s as Mr. Choudhury has pointed out is due to the omission on the part of the pro secution to furnish all documents as required under Section 207 CrPC to the accu sed persons including the appellant. That the charge sheets submitted involve the appellant is a matter of record. Th is is however subject to final orders to be passed by the learned Court below on the conclusion of the arguments bearing on the charge. This assumes significanc e in the face of the directions of the Apex Court to the prosecution to supply a ll the required documents to the accused persons within the period as specified therein and as referred to in its order dated 29.09.2011 passed in Crl. M.P. No. 14064 of 2010. Incidentally, the appellant had been granted interim bail on 17. 12.2009 after the charge sheet was laid on 17.11.2009 implicating him in NIA Cas e No.1/2009. It has not been disputed on behalf of the prosecution that the app ellant had meticulously adhered to the conditions subject to which he was grante d such bail and had surrendered before the learned Court below as ordered withou t any default. That an amount of Rs.50,000/- deposited by him by way of securit y on that count is presently available with the learned Court below is also not disputed. The medical documents accompanying the application for interim bail highlighting the illness of the mother of the appellant demonstrate in clear terms that she (Mrs. Charubala Ghosh), aged 77/78 years is presently admitted in the Apollo Gle neagles Hospital, Kolkata in Bed No.132(ICU) and is still under treatment. The certificate issued by Dr. Sudeepta Dasgupta, DNBI, MD (Physician), Regn. No.248 82 dated 07.11.2011, attending on her reveals that due to sudden rapid deteriora tion of health, she had to be shifted to Apollo Gleneagles Hospital (ICU) depart ment and is presently in a critical state. In the appeal petition before this C ourt as well the appellant has reiterated the above facts and has stated on oath that his mother presently is in her death bed fighting for life. Though, the written instructions furnished to the learned Standing Counsel NIA d o not as such question the authenticity of the averments made in the appeal peti tion about the alarming ailing state of the appellant’s mother as well as the me dical documents referred to hereinabove, there is an indication that genuineness of the contents thereof ought to be certified by a Medical Board. On an overall consideration of the materials on record, we find no reason to do ubt the veracity of the facts and the documents pertaining to the illness of the appellant’s mother and her present morbid state. It is logically expected that as a son in this precarious state of her health, would be inconsolably anxious to see her and be by her side. In that view of the matter, the observation made in the National Investigation A gency Vs. Redaul Hussain Khan (Supra) is not of any decisive significance in th e facts of the present case. There the detenue had misrepresented before the Co urt about the illness of his mother and did not visit her on his release. On a close reading of the proviso to Section 43(D)(5), we are inclined in the fa cts of the case to take note of the exceptional circumstances as obtain herein i n support of the prayer for interim bail. The argument that a charge sheet notw ithstanding, it is within the right of an accused to establish want of reasonabl e grounds to make out his/her complicity even prima facie cannot be lightly bru shed aside. The charge sheets having been submitted, the plea on behalf of the investigating agency appearing in the written instructions that the appellant ma y motivate or manipulate the witnesses or that he would try to tamper the eviden ce, in the face of the materials available on record does not appeal to us. The prayer made herein is for an interim bail for a limited period in extremely com pelling and singular circumstances evoking humane considerations. The fact that the appellant had been granted liberty by way of interim bail on a previous occasion and that he scrupulously adhered to the conditions subject t o which the same was granted are also factors weighing in his favour. No compla in or imputation against his past conduct in this regard has also been brought t o the notice of this Court. As indicated hereinabove, the appellant as a son fer vently desires to see his ailing mother who as medically opined is in an acutely critical state. According to the appellant she is in death bed. Rule of law, as it is said, runs by the rule of life. The situation being extra-ordinary and pressing for a son, we are, on a consideration of the totality of the facts and circumstances inclined to accede to the prayer for interim bail. Ordered accor dingly. This appeal is thus allowed. The impugned order is set aside. The appellant is granted interim bail for Rs.50,000/- with two sureties each of the like amount for a period of 10(ten) days to the satisfaction of the learned Special Judge/N IA, Guwahati. The two sureties to be furnished would be in addition to the amou nt of Rs.50,000/- lying in deposit with the learned Court below. The appellant would appear before the Court of the learned Special Judge/NIA, Guwahati on 24.1 1.2011 at 10.30 a.m. failing which, the learned Special Judge/NIA would be at li berty to take appropriate steps in law to secure his arrest and production. The appeal stands allowed in the above terms. No costs.