Jharkhand High Court
Vinit Agarwal Alias Vineet Agarwal vs Union Of India Through The National ... on 18 January, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No.71 of 2020
----
Vinit Agarwal alias Vineet Agarwal, aged about 38 years, son
of Late Binod Kumar Agarwal, resident of Harihar Singh
Road, P.O. Bariatu, P.S. Bariatu, District Ranchi
(Jharkhand)-834009. ... ... Appellant
Versus
Union of India through the National Investigating Agency,
having its N.I.A. camp Office, Quarter No.305, Sector II, P.O.
and P.S. Dhurwa, District Ranchi (Jharkhand)-834002.
... ... Respondent
With
Criminal Appeal (DB) No.117 of 2020
----
Amit Agarwal @ Sonu Agarwal, aged about 41 years, son of
Shyam Sundar Agarwal, resident of B-77, Kabi Kankan
Mukundram Sarani, Sector-2A, Bidhan Nagar, P.O.
Bamunara, P.S. Bidhan Nagar Durgapur, District
Burddhawan (West Bengal). ... ... Appellant
Versus
Union of India through the National Investigation Agency,
having its Camp Office at Quarter No.305, Sector II, P.O. &
P.S. Dhurwa, District Ranchi. ... ... Respondent
With
Criminal Appeal (DB) No.119 of 2020
----
Mahesh Agarwal, aged about 53 years, son of Late Mahadeo
Prasad Agarwal, permanent resident of BA 209, Salt Lake,
P.O. & P.S. Salt Lake, Kolkatta - 700064, District North 24
Paraganas, West Bengal. ... ... Appellant
Versus
Union of India through the National Investigating Agency,
having its office at N.I.A. Camp office, Quarter No.305,
Sector-II, P.O. and P.S. Dhurwa, Dist: Ranchi, Jharkhand-
834002. ... ... Respondent
-2-
CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
------
Cr. Appeal (DB) No.71 of 2020
For the Appellant : Mr. R.S.Cheema, Sr. Advocate
Mr. S.D.Sanjay, Sr. Advocate
Mr. Sumeet Gadodia, Advocate
Mr. Indrajit Sinha, Advocate
For the Respondent : Mr. Vikramjit Banerjee, ASGI
Mr. Rohit Ranjan Prasad, Spl. P.P.(NIA)
Cr. Appeal (DB) No.117 of 2020
For the Appellant : Mr. R.S.Cheema, Sr. Advocate
Mr. Indrajit Sinha, Advocate
Mr. Arjun Bobde, Advocate
Ms. Tarannum Cheema, Advocate
Ms. Sneh Singh, Advocate
Mr. Vikrant Sinha, Advocate
For the Respondent : Mr. Vikramjit Banerjee, ASGI
Mr. Rohit Ranjan Prasad, Spl. P.P.(NIA)
Cr. Appeal (DB) No.119 of 2020
For the Appellant : Mr. Kamal Nayan Chaubey, Sr. Advocate
Mr. Vikas Pahwa, Sr. Advocate
Mr. Ambuj Nayan Chaubey, Advocate
Mr. Indrajit Sinha, Advocate
Mr. Nitesh Rana, Advocate
Mr. Sumer Boparai, Advocate
For the Respondent : Mr. Vikramjit Banerjee, ASGI
Mr. Rohit Ranjan Prasad, Spl. P.P.(NIA)
--------
C.A.V. on 20.07.2021 Pronounced on 18.01.2022
Per Dr. Ravi Ranjan, C.J.
With consent of the parties, hearing of the matters was done through video conferencing and there was no complaint whatsoever regarding audio and visual quality.
2. These appeals (three in number), have been heard together with consent of the parties in view of the fact that common issues are involved and are being disposed of by this common order.
3. The instant appeals have been preferred invoking the -3- jurisdiction conferred upon this Court under Section 21 of the National Investigating Agency Act, 2008 against the order taking cognizance dated 13.01.2020 passed in Special (NIA) Case No.03 of 2018(S) corresponding to R.C. No.06/2018/NIA/DLI arising out of Tandwa P.S. Case No. 02 of 2016 by the court of Judicial Commissioner-cum-Special Judge, NIA at Ranchi whereby and whereunder the cognizance of offences punishable under Section 120-B of the Indian Penal Code read with Section 17 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred as the U.A.(P) Act, 1967), substantive offences under Sections 17 and 18 of the U.A.(P) Act, 1967 and under Section 17 of the Criminal Law Amendment Act, 1908 has been taken.
4. The brief background of the fact stands enumerated as under :-
The case pertains to the incident of extortion/levy collection/money laundering by Maoist cadres in Left Wing Extremism affected States like Jharkhand and Bihar.
A case was registered by Tandwa Police Station, District Chatra, being Tandwa P.S. Case No.02 of 2016 dated 11.01.2016 under Sections 414/384/386/387/120-B of the Indian Penal Code, Sections 25(1B) a/26/35 of the Arms Act and Section 17(1)(2) of the Criminal Law Amendment Act against Vinod Ganjhu, Munesh Ganjhu, Pradeep Ram, Birbal Ganjhu, Gopal Singh Bhokta @ Brijesh Ganjhu, Mukesh -4- Ganjhu, Koharam Ji, Akramanji @ Ravinder Ganjhu, Anischay Ganjhu, Deepu Singh @ Bhikhan, Bindu Ganjhu and Bhikhan Ganjhu on the basis of complaint made by Sri Ramdhari Singh, Sub-Inspector, P.S.-Simariya alleging therein that some locals have formed an operating committee in the coal region of Amrapali/Magadh projects under P.S. Tandwa having relation with banned unlawful association ―Tritya Prastuti Committee (hereinafter referred to as TPC).
Some people of the operating committee were threatening the contractors, transporters, DO holders and coal businessmen for extorting/collecting levy in the name of the operatives of banned TPC organization.
After investigation, Charge-sheet No.17 of 2016 dated 10.03.2016 was filed before the court of C.J.M., Chatra against arrested accused persons namely, Binod Kumar Ganjhu, Munesh Ganjhu, Birbal Ganjhu, Pradeep Ram and Bindu Ganjhu @ Bindeshwar Ganjhu under Sections 414, 384, 386, 387 and 120-B of the Indian Penal Code, Sections 25(1B) a/26/35 of the Arms Act and Section 17(1)(2) of the Criminal Law Amendment Act and the Investigation was being continued against absconding accused persons namely, Gopal Singh Bhokta, @ Brajesh Ganjhu, Mukesh Ganjhu, Kohramji, Akramanji @ Ravindra Ganjhu, Anischaya Ganjhu, Deepu Singh @ Bhikan and Bhikan Ganjhu. Further, Sections 16, 17, 20 and 23 of the U.A.(P) Act were added -5- against all the F.I.R. named accused persons except Deepu Singh @ Bhikan on 12.04.2017.
The Central Government, taking into consideration the gravity of the offence due to seizure of arms & ammunition and cash to the tune of Rs.1,49,33,610/- and other incriminating materials from Maoist cadre, exercised its power conferred under Sub-Section (5) of Section 6 read with Section 8 of the National Investigation Agency Act, 2008 vide MHA, New Delhi CTCR Division order no.
11011/08/2018/NIA dated 13.02.2018, directed the NIA to take up investigation of the case and accordingly Tandwa P.S. Case No.02 of 2016 dated 11.01.2016 was re-registered as NIA Case No. R.C.-06/2018/NIA/DLI dated 16.02.2018 under Sections 414, 384, 386, 387 and 120-B of the Indian Penal Code, Sections 25(1B) a/26/35 of the Arms Act, Section 17(1)(2) of the Criminal Law Amendment Act and Sections 16, 17, 20 and 23 of the U.A.(P) Act.
Consequent upon the re-registration of the instant case in NIA, the record of Tandwa P.S. Case No. 02 of 2016 dated 11.01.2016 was handed over along with all exhibits to the NIA. The accused persons A-1, A-2, A-3, A-4, A-5, A-6, A-7 and A-8 were examined by remanding them in police custody by NIA. The NIA has found during course of investigation that the accused persons have indulged in armed clashes with CPI-Maoist cadres and other Maoist outfits including the -6- Jharkhand Liberation Tigers (JLT) in Jharkhand. TPC activities were reported from Chatra, Gaya, Ramgarh, Latehar, Aurangabad, Palamu, West Singhbhum, Lohardaga and Simdega districts. It further revealed during investigation that before starting the Amrapali colliery, TPC operatives used to extort levy from local contractors. The part of the extorted amount was found to be used for strengthening arms and ammunition stock for expanding the fold of TPC in the other districts of Jharkhand.
NIA had obtained sanction for prosecution in respect of accused persons A-1, A-2, A-3, A-4, A-5, A-6, A-7, A-8, A-9, A-10, A-11, A-12, A-13, A-14, A-15 and A-16 for commission of offence under U.A.(P) Act from the competent authority vide MHA, New Delhi Order No. 11011/08/2018/NIA dated 19.12.2018.
First supplementary charge-sheet was submitted against the aforesaid accused persons i.e. from accused Nos. 1 to 16 on 21.12.2018 while with respect to the rest of the accused persons/ suspects / unknown including accused No.17 and others unknown, further investigation is being continued as per the provision of Section 173(8) of the Code of Criminal Procedure.
The Judicial Commissioner-cum-Special Judge, NIA took cognizance against 16 accused persons namely Binod Kumar Ganjhu (A-1), Munesh Ganjhu (A-2), Birbal Ganjhu -7- (A-3), Pradeep Ram @ Pradeep Verma (A-4), Bindeshwar Ganjhu @ Bnindu Ganjhu (A-5), Amar Singh Bhokta @ Laxman Ganjhu @ Lallanji @ Koharam Ji @ Ibrahim (A-6), Subhan Mian (A-7), Sudhanshu Ranjan @ Chhotu Singh (A-8), Sanjay Jain (A-9), Ajit Kumar Thakur (A-10), Prem Vikash @ Mantu Singh (A-11), Mukesh Ganjhu @ Muneshwar Ganjhu (A-12), Bhikhan Ganjhu (A-13), Akramanji @ Neta Ji @ Ravinder Ganjhu @ Ram Vinayak Bhokta (A-14), Gopal Singh Bhokta @ Brijesh Ganjhu (A-15) and Anishchay Ganjhu (A-16) on 21.12.2018 including 11 newly added and 05 against whom cognizance order was already there for additional offence under U.A.(P) Act under various sections mentioned in the charge-sheet.
Further investigation continued and on its completion, second supplementary charge-sheet was submitted on 10.01.2020 against 05 accused persons namely Mahesh Agarwal (A-18), Sudesh Kedia (A-19), Vinit Agarwal (A-20), Amit Agarwal @ Sonu (A-21) and Ajay Kumar @ Ajay Singh (A-22) with a request to take cognizance and to issue summon for issuance of process.
In pursuance of the second supplementary charge- sheet, cognizance has been taken by the court of Judicial Commissioner-cum-Special Judge, NIA, Ranchi on 13.01.2020 against Mahesh Agarwal (A-18), Sudesh Kedia (A-
19), Vinit Agarwal (A-20), Amit Agarwal @ Sonu (A-21) and -8- Ajay Kumar @ Ajay Singh (A-22) for commission of offence under Section 120-B of the Indian Penal Code read with Section 17 of the U.A.(P) Act (for substantive offences under Sections 17, 18 and 21) Section 17 of the C.L.A. Act and Section 201 of the Indian Penal Code and posted the case for supply of police papers on 18.02.2020. The said order is under challenge in the instant appeal.
Grounds of challenge of the order taking cognizance
5. Learned senior counsel for the appellants has assailed the order of cognizance on the following grounds :-
(i) The appellants have not been implicated in first charge-
sheet pertaining to Tandwa P.S. Case No. 02 of 2016 and as such, implicating them in the second charge-sheet cannot be said to be proper and justified because the F.I.R. pertaining to Tandwa P.S. Case No. 02 of 2016 was filed only under Sections 414/384/386/387/120-B of the Indian Penal Code, Section 25(1B) a/26/35 of the Arms Act and Section 17(1)(2) of the Criminal Law Amendment Act against Binod Kumar Ganjhu, Munesh Ganjhu, Pradeep Ram, Birbal Ganjhu, Gopal Singh Bhokta, Mukesh Ganjhu, Kohram Ji, Aakraman Ji, Anischay Ganjhu, Dipu @ Bhikhan and Bhikhan Ganjhu on the basis of complaint made by Sri Ramdhari Singh, Sub- Inspector, P.S.-Simariya and on the basis of the investigation, charge-sheet was submitted vide charge-sheet no. 17 of 2016 dated 10.03.2016 in the court of C.J.M., Chatra against the -9- arrested accused persons but in the said investigation no complicity of the appellants was found. Hence, their implication in the subsequent charge-sheet is not justified.
(ii) No jurisdiction to carry out further investigation without leave of the court as mandated under the provision of Section 173(8) of the Code of Criminal Procedure.
(iii) The TPC is not mentioned in Schedule-I of the U.A.(P) Act and as such, even accepting that any money, by way of levy, has been paid to the members of the T.P.C., the ingredients of criminal offence as per the provisions of U.A.(P) Act will not be attracted.
(iv) No case is made out under Sections 15, 17 and 18 of the U.A.(P) Act. The appellants are the victims of extortion as would appear from the charge-sheet submitted in pursuance of Tandwa P.S. Case No. 02 of 2016 but subsequently by way of submission of second supplementary charge-sheet, the appellants have been made accused.
(v) No case is made out even if the entire charge-sheet is taken to be true on the face of it.
(vi) The issue of extortion has not been considered. Even if any levy has been paid, the intention to use that amount of levy was not known to the appellants.
(vii) The question of vicarious liability has not been considered since the appellant (A-20) has been implicated as an accused in the capacity of Vice President of M/s B K B
- 10 -
Transport as he had paid levy to the tune of rupees 30 Lakhs to the members of terrorist gang TPC, appellant (A-21) has been implicated as an accused in the capacity of Proprietor of Shree Balaji Transport Limited but he ceased to be Director on or after 13.05.2019 and appellant (A-18) has been implicated as an accused in the capacity of Managing Director of M/s. Adhunik Power and Natural Resources, Jharkhand but the company has not been implicated in this case.
(viii) The order taking cognizance is also fit to be quashed and set aside since the same is not speaking order and hence the same will be said to be order without application of mind.
6. Learned Counsel for the appellants has relied upon the judgment rendered by Hon'ble Apex Court in State of Andhra Pradesh v. Mohd. Hussain alias Saleem [(2014) 1 SCC 258 as well as in Girish Kumar Suneja v. CBI [(2017) 14 SCC 809], in order to substantiate his argument about the maintainability of the appeals.
On the issue of object of U.A.(P) Act, reliance has been placed upon the following judgments of Hon'ble Apex Court :-
(i) Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and Others [(1987) 1 SCC 424]
(ii) Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra [(2010) 5 SCC 246]
- 11 -
(iii) Kartar Singh v. State of Punjab [(1994) 3 SCC 569] On the issue of terrorist act/terrorist gang, reliance has been placed upon the following judgments of Hon'ble Apex Court :-
(i) Tolaram Relum v. State of Bombay [AIR 1954 SC 496]
(ii) Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijjaya and Others [(1990) 4 SCC 76]
(iii) Hitendra Vishnu Thakur v. State of Maharashtra and Others [(1994) 4 SCC 602]
(iv) People's Union for Civil Liberties and Another v. Union of India [(2004) 9 SCC 580]
(v) Manjit Singh alias Mange v. Central Bureau of Investigation [(2011) 11 SCC 578]
(vi) Extra-judicial Execution Victim Families Association v. Union of India [(2016) 14 SCC 536] On the issue of terror funding, reliance has been placed upon the following judgments of Hon'ble Apex Court :-
(i) Amarendra Pratap Singh v. Tej Bahadur Prajapati and Others [(2004) 10 SCC 65]
(ii) State of Kerala v. Raneef [(2011) 1 SCC 784]
(iii) Arup Bhuyan v. State of Assam [(2011) 3 SCC
- 12 -
377]
(iv) Indra Das v. State of Assam [(2011) 3 SCC 380]
(v) Vinay Tyagi v. Irshad Ali alias Deeak and Others [(2013) 5 SCC 762]
(vi) Mehmood Ul Rehman v. Khazir Mohammad Tunda and Others [(2015) 12 SCC 420] On applicability of the provision of Section 18 of the U.A.(P) Act, reliance has been placed upon the judgment rendered in the case of CBI, Hyderabad v. K. Narayana Rao, [(2012) 9 SCC 512.
On vicarious liability, reliance has been placed on the following judgments of Hon'ble Apex Court :-
(i) Aneeta Hada v. Godfather Travels & Tours (P) Ltd. [(2012) 5 SCC 661]
(ii) Sunil Bharti Mittal v. Central Bureau of Investigation [(2015) 4 SCC 609]
(iii) K. Sitaram and Another v. CFL Capital Financial Service Ltd. and Another [(2017) 5 SCC 725] So far as the proprietary of further investigation is concerned, reliance has been placed upon the following judgments of Hon'ble Apex Court :-
(i) Kunjalata Dei v. State [1984 SCC Online Ori 223]
(ii) State v. Gopakumar [1988 SCC Online Ker 66]
- 13 -
(iii) Yamuna Pathak v. State of Bihar & Anr. [1992 SCC Online Pat 246] Argument on behalf of National Investigating Agency
7. Mr. Vikramjit Banerjee, learned Additional Solicitor General of India, assisted by Mr. Rohit Ranjan Prasad, represented the National Investigating Agency has not raised the issue of maintainability, as such, we are not deliberating upon the issue, however, the argument advanced on behalf of the appellants has been refuted on the following grounds:-
(i) The question regarding seeking leave of the court for further investigation as required under Section 173(8) of the Code of Criminal Procedure, it has been submitted that either before submitting the charge-sheet pertaining to Tandwa P.S Case No. 02 of 2016 against the arrested accused persons, the further investigation with respect to the other accused persons or unknown accused persons were on. Likewise, at the time of submission of first supplementary charge-sheet also, while submitting charge-sheet against 16 accused persons, further investigation was reported to be carried out against the other accused persons/unknown accused persons and since the investigation was going on, it has duly been reported to the concerned court and in that view of the matter, the further investigation as per the provision of Section 173(8) of the Code of Criminal Procedure will not be barred.
- 14 -
Moreover, the issue pertaining to seeking leave of this Court or legality or propriety of the first supplementary charge-sheet has already been answered by Hon'ble Apex Court in Pradip Ram v. State of Jharkhand [2019 SCC Online SC 825], holding that submission of supplementary charge-sheet cannot be held to be illegal and in view thereof, when the Hon'ble Apex Court has already approved the first supplementary charge-sheet taking the same principle, the second supplementary charge-sheet cannot be said to suffer from any infirmity.
(ii) The TPC, although, has not been mentioned in Schedule-I of the U.A.(P) Act as a terrorist organization but the investigation has been conducted treating the TPC as terrorist gang for which there is no requirement of reference of such terrorist gang in Schedule-I of the U.A.(P) Act.
(iii) So far as the issue of mens rea or vicarious liability is concerned, the same cannot be assessed at this stage by this Court because these two issues pertain to the factual aspect which can only be adjudicated on appreciation of the facts, evidence and the documents which can only be appreciated either at the time of framing of charge or in course of trial but certainly not at the stage of cognizance.
(iv) So far as victim of extortion is concerned, the same also pertains to the factual aspects and hence the same can only be appreciated by the court either at the time of framing of
- 15 -
charge or in course of trial.
(v) It has been submitted that if the charge-sheet is taken into consideration, ample material is available showing the prima facie case against the appellants. The principle laid down for quashing the F.I.R. or order taking cognizance can only be exercised if even after going through the F.I.R. or order taking cognizance, no case is made out in its entirety but that is not the fact in the present matters since ample materials are available against the appellants in the charge- sheet.
(vi) (a) Charge against accused Vinit Agarwal (A-20) According to him, specific allegation has been surfaced in course of investigation as would appear from paragraph 17.12 of the second supplementary charge-sheet, so far as it relates to accused Vinit Agarwal (A-20), wherein it has come that A-20 is the Vice President of M/s B K B Transport and he paid levy to the tune of rupees 30 lakhs to members of terrorist gang TPC including Akraman (A-14). It has further come that A-20 colluded with members of terrorist gang, TPC and others and abetted/promoted thereby strengthened TPC in criminal conspiracy with members of the terrorist gang with an intent to raise funds for the above said terrorist gang through co-accused Premvikas @ Mantu Singh (A-11) and Akraman (A-14) for smooth functioning of his business.
On the basis of such allegations, it is established that
- 16 -
the appellant colluded with members of terrorist gang (TPC) and abetted/promoted/thereby strengthened TPC in criminal conspiracy with members of the terrorist gang with an intent to raise funds for the above said terrorist gang through co-accused Premvikas @ Mantu Singh (A-11) and Akraman (A-14) for smooth functioning of his business. Thereby, it is established that A-20 criminally conspired with co-accused and committed offence under Section 120-B of the Indian Penal Code read with Section 17 of the U.A.(P) Act and substantive offences under Sections 17 and 18 of the U.A.(P) Act, Section 17 of the C.L.A. Act, 1908 and Section 201 of the Indian Penal Code.
It has also come in the chargesheet that one independent witness in his statement recorded under Section 164 Cr.P.C. has stated that Vinit Agarwal (A-20) used to take care of finances and operation of the company. He gave the witness Rs. 30 lakhs (Rs. 10 lakhs each three times) to be further handed over the Akraman Ji (A-14).
(b) Charge against accused Amit Agarwal (A-21) According to learned counsel, specific allegation has surfaced during course of investigation as would appear from paragraph 17.13 of the second supplementary charge-sheet, so far as it relates to accused Amit Agarwal (A-21), wherein it has come that A-21 is the Proprietor of M/s. Shree Balaji Transport Pvt. Ltd. which transports coal of Hindalco
- 17 -
company used to arrange cash from local traders and other businessmen for making payments of levy to Village Committee Members and TPC for smooth functioning of his business. It has further come that he criminally conspired with co-accused Suhanshu Ranjan @ Chhotu Singh (A-8) for raising fund for terrorist gang TPC on being demanded by Akraman Ji (A-14). The accused A-21 (appellant) used to collect funds in cash from different traders by showing a Rs.10 note to traders and the amount to be collected was decided by A-21(appellant). Further, from the residential premises of A-21, cash amounting to Rs.7,91,000/- and Singapore Dollar 10,000 were seized and from office premises of A-21 cash amounting to Rs.3,72,750 and Hongkong Dollar 8760 were sized and the above said cash was confirmed as proceeds of terrorism by designated authority vide order No. 11011/08/2018/NIA, Government of India dated 07.12.2018.
It further transpires from the list of documents appended to the first-supplementary charge-sheet referred in second supplementary charge-sheet wherein it has been referred about the search list dated 09.10.2018 of office of Sonu Agarwal @ Amit Agarwal and the photocopy of hand written pamphlet wherein "Sonu Agarwal Avdar hai kin Sonu Agarwal ke alava kisi ka bhi kaam nhi hona chahiye sara kaam band karo nahi to Maar denge" is written. Further, copy of search/seizure list dated 09.10.2018 along with memo,
- 18 -
rough sketch map, specimen seal sheet towards seizure of money and documents from the house of the appellant has been referred.
On the basis of such allegations, it is established that the appellant colluded with members of terrorist gang (TPC) and abetted/promoted/thereby strengthened TPC in criminal conspiracy with members of the terrorist gang with an intent to raise funds for the above said terrorist gang through co- accused A-4, A-5, A-7, A-8, A-10 and A-14 for smooth running of his business. Thereby, it is established that A-21 criminally conspired with co-accused and committed offence under Section 120-B of the Indian Penal Code read with Section 17 of the U.A.(P) Act and substantive offences under Sections 17, 18 and 21 of the U.A.(P) Act and Section 17 of the C.L.A. Act, 1908.
(b) Charge against accused Mahesh Agarwal (A-18) According to him, specific allegation has been surfaced in course of investigation as would appear from paragraph 17.10 of the second supplementary charge-sheet, so far as it relates to accused Mahesh Agarwal (A-18), wherein it has come that A-18 is the Managing Director of M/s Adhunik Power and Natural Resources, Jharkhand. It has further come that on the instruction of the appellant payment was made through RTGS mode to coal transporters against work orders @ Rs.200/- per MT to transporters for the purpose of
- 19 -
paying to TPC operatives and village committee for smooth functioning of the business concerns. It has also come that for promoting his coal trade business, he connived with the co-accused persons namely Ajay Singh, Akraman and Bindeswar Ganjhu and thereby abetted in raising of funds for the terrorist gang.
The documentary and oral evidences also established that the appellant was paying levy to members of various groups like Village committee members, CCL, weigh bridge operators, TPC members such as Akraman (A-14), Bindu Ganjhu (A-5) and Premvikas @ Mantu Singh (A-11) and was involved with co-accused persons namely Sanjay Jain (A-9) and Ajay Kumar @ Ajay Singh in the commission of instant crime and conspiracy. The E-mail dated 03 April, 2017 and 30th April, 2017 recovered at the instance of co-accused Sanjay Jain (A-9) and the documents produced by witness Rakesh Jain revealed that Mahesh Agrawal (A-18) was in the knowledge of levy being paid to CCL and village committee. The four e-mails dated 01/05/2017, 02/05/2017, 16/05/2017 and 21/05/2017 which were produced by witness Rakesh Jain, which were sent by employees of Adhunik Power & Natural Resources Ltd. to Raja Patni, M/s. National Parivahana transporter for Adhunik Power, stating that there is pending payments which was supposed to be paid to the Committee, regular phone calls being made by
- 20 -
Akraman @ Netaji, (Regional Commander, TPC)(A-14) to Ajay Kumar (Branch Office, Ranchi) to pay pending freight charges to transporters, threatening calls by Akraman @ Netaji to stop lifting of coal, plans of Ajay Kumar (Branch Office, Ranchi) to meet Akraman @ Neta Ji, demand draft of Rs. 40 lakh raised in favour of Amrapali loading account committee, intimating that Sanjay Jain is meeting Akraman Ji @ Neta Ji (A-14).
Therefore, it is prima facie established that the appellant was in the knowledge that levy is being paid by their company to TPC. Further, it has come that the appellant deliberately deleted the emails marked as CC to him. It is established that the appellant colluded with members of terrorist gang TPC, and others and abetted / promoted/thereby strengthened TPC by engaging in criminal conspiracy with members of the terrorist gang with an intent to raise funds for the above said terrorist gang through co- accused Akraman (A-14), Sanjay Jain (A-9) and Ajay Kumar @ Ajay Singh (A-22) for smooth running of his business. Thereby, it is established that A-18 criminally conspired with co-accused and committed offence under Section 120-B of the Indian Penal Code read with Section 17 of the U.A.(P) Act and substantive offences under Sections 17 and 18 of the U.A.(P) Act, Section 17 of the C.L.A. Act, 1908 and section 201 of the Indian Penal Code.
- 21 -
It has been submitted, therefore, that sufficient materials have been found in course of investigation by the NIA against the appellant basis upon which cognizance has been taken.
(vii) He further submits that interference by the appellate court at this stage cannot be said to be justified since from the second supplementary charge-sheet sufficient materials have surfaced against the appellants showing prima facie case against them and as such, the principle for quashing of F.I.R. or order taking cognizance i.e., if no case is made out even if the allegation either in the F.I.R. or order taking cognizance is accepted and treated to be true in entirety, would not be applicable in the case in hand. Taking into consideration the specific allegation pertaining to levy and activities of the appellant as referred by the investigating agency under paragraph 17.12, 17.13 and 17.10 respectively, it cannot be said that, on bare perusal or on the basis of the charge-sheet, no case is made out against the appellants.
(viii) So far as non-availability of ingredients of Section 15, 17 and 18 are concerned, it has been submitted that ‗terrorist act' as has been defined under Section 15 of the Act, 1967, which stipulates that whoever does any act with the intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any
- 22 -
section of the people in India or in any foreign country, by means as stipulated under Sub-section (a), (a)(i), (a)(ii), (a)(iii) and (a)(iv). According to learned counsel, the ingredients pertaining to disruption of any supplies or services essential to the life of the community in India is available as would be evident from the bare perusal of the allegation as has been stipulated under paragraph 17.12, 17.13 and 17.10 of the second supplementary charge-sheet.
(ix) So far as non-attracting of the ingredient of Section 17 of the Act, 1967 is concerned, it has been submitted that the punishment for raising funds for terrorist act either directly or indirectly, whether from a legitimate or illegitimate source, by such person or persons or by a terrorist organisation or by a terrorist gang or by an individual terrorist to commit terrorist act, notwithstanding whether such funds were actually used or not for commission of such act, shall be punishable with imprisonment for a term which shall not be less than five years which may extend to imprisonment for life. According to learned counsel, as per the specific allegation the appellants have been found to be involved in collecting money for raising funds for terrorist gang and hence, there is ingredient of application of Section 17 of the Act, 1967. Further, he has given emphasis upon Sub-section
(c) of Section 17 of the Act, 1967 which stipulates raising or collecting or providing funds, in any manner for the benefit of
- 23 -
or to an individual terrorist, terrorist gang or terrorist organisations for the purpose not specifically covered under section 15 shall also be construed as an offence. According to him, even if the case of the appellants will be taken not coming under the fold of ‗terrorist act' as defined under Section 15 of the Act, 1967, then also if it is found that the funds are being collected to benefit the terrorist gang, Section 17 would be applicable and in that view of the matter, the argument advanced on behalf of the appellants that no case is made out under Section 17 of the Act, 1967 has got no substance.
(x) So far as the ingredient of Section 18 is concerned, the same is also available since the same provides that whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable. As would appear from the material gathered in course of investigation, the appellants have been found to be involved in arranging cash from local traders and other businessmen for making payment of levy to Village Committee Members and TPC for smooth functioning of his business. Further it has been established that they criminally conspired with members of the terrorist gang with an intent to raise funds for the above said terrorist gang through co-accused Premvikas @ Mantu Singh (A-11) and
- 24 -
Akraman (A-14), therefore, sufficient materials are available pertaining to conspiracy for raising funds for terrorist gang TPC.
(xi) So far as the argument of the appellants that order taking cognizance suffers from non-application of mind since the same is non-speaking one, learned counsel in this regard, has submitted by referring to the order taking cognizance that, the said order cannot be said to be without any application of mind since the court below has perused the charge-sheets as also the case diary and thereafter cognizance has been taken.
(xii) He submits that at the stage of cognizance it is not required to pass detailed reasoned order. The said argument can be said to be acceptable if no material is found to be available in the charge-sheet but herein, in course of investigation sufficient materials have been surfaced against the appellants and the court, taking cognizance, has perused the case diary as also the charge-sheet and thereafter cognizance has been taken. Therefore, it cannot be said that the order taking cognizance is without application of mind.
(xiii) He submits, refuting the argument advanced on behalf of the appellants that since the order taking cognizance is not supported by a reason, it reflects non-application of mind and as such, the same may be remitted before the court below for passing a fresh order after due application of mind, that if
- 25 -
such order would be passed, the same will be said to be a futile exercise and wastage of the court's time as sufficient materials are already available in the second supplementary charge-sheet. Even if the case is remitted, the court below will only refer the materials available in the charge-sheet in the specific word and by doing that no material change will come since in that circumstances also, in view of the sufficient material available in the second supplementary charge-sheet, cognizance would be taken by the court below. The question of remand is only fit to be considered if there is no material available on record on the basis of which cognizance has been taken. However, in the case in hand, sufficient material is available and after perusal of the same the court below has taken cognizance.
Learned counsel for the NIA has relied upon the judgments rendered in Prasad Shrikant Purohit v. State of Maharashtra and Another [(2015) 7 SCC 440], Lt. Col. Prasad Shrikant Purohit v. State of Maharashtra and Another [(2018) 11 SCC 458] and National Investigation Agency v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1].
8. We have heard the learned counsel for the parties at length. Before proceeding further, this Court deems it fit and proper to deal with some legal aspects of the matter pertaining to object and intent of the U.A.(P) Act, 1967 vis-à-
- 26 -
vis the NIA Act, 2008.
The U.A.(P) Act is now the primary anti-terrorist law in force in India. It was enacted by Parliament in 1967. The original Act was targeted at unlawful activities of a general nature, and stringent provisions on terrorism were added only later through various amendments starting in 2004, following POTA's repeal. It was subsequently amended in 2008 in response to the Mumbai terrorist attacks. The amended UAPA incorporated the definition of a ―terrorist act‖ under Section 15 and created new terrorist offence. The most recent amendments were made in 2013, which dealt largely with the economic and financial aspects of terrorism. By virtue of Unlawful Activities (Prevention) of Amendment Act, 2012, the ―terrorist act‖ has been defined under U.A.(P) Act, 1967 under Section 2(k) which reads as under :-
―2(k) ―terrorist act‖ has the meaning assigned to it in section 15, and the expressions ―terrorism‖ and ―terrorist‖ shall be construed accordingly.‖ The ―terrorist gang‖ has been defined under Section 2(l) which reads as under :-
―(l) ―terrorist gang‖ means any association, other than terrorist organisation, whether systematic or otherwise, which is concerned with, or involved in, terrorist act.‖ The ―terrorist organization‖ has been defined under Section 2(m) which reads as under :-
―(m) ―terrorist organisation‖ means an organisation listed in the Schedule or an organisation operating
- 27 -
under the same name as an organisation so listed.‖ The ―unlawful activity has been defined under Section 2(o) which reads as under :-
―(o) ―unlawful activity‖, in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),--
(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or
(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or
(iii) which causes or is intended to cause disaffection against India.‖ It is evident from the definition of ―terrorist organization‖ that it means an organisation listed in the Schedule or an organisation operating under the same name as an organisation so listed, meaning thereby, the applicability of penal offence as mandated under the provision of U.A.(P) Act, 1967 will only be applicable to a terrorist organization which has been listed in Schedule-I. The ―terrorist gang‖ means any association, other than terrorist organisation, whether systematic or otherwise, which is concerned with, or involved in, terrorist act.
If the definition of ―terrorist organization‖ as contained
- 28 -
under Section 2(m) and ―terrorist gang‖, as stipulated under the provision of Section 2(l) are read conjointly, it would be evident that if the organization has not been listed in Schedule as contained in U.A.(P) Act, 1967, even then the penal offence would be attracted against a gang which is concerned with, or involved in, terrorist act.
The ―terrorist act‖ has been defined under Section 2(k) has the meaning assigned to it in Section 15. Section 15 contains the activities which will be treated to be a ―terrorist act‖. Section 15 reads as under :-
"15. Terrorist act.--4(1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,--
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause--
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or (iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or]
(iv) damage or destruction of any property in India or
- 29 -
in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter-governmental organisation or any other person to do or abstain from doing any act; or commits a terrorist act.
[Explanation.--For the purpose of this sub-section,--
(a) ―public functionary‖ means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;
(b) ―high quality counterfeit Indian currency‖ means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule.] (2) The terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule. As per the provision of Section 15, whoever has acted with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country would be covered under the definition of ―terrorist
- 30 -
act‖. This provision, therefore, stipulates that any activity with an intent to strike terror or likely to strike terror will come under the fold of terrorist act if done to threaten the unity, integrity, security, sovereignty of India or economic security, which has been inserted by way of Act 3 of 2013 with effect from 01.02.2013.
Section 17 provides punishment for raising funds for terrorist act which reads as under :-
―17. Punishment for raising funds for terrorist act.--Whoever, in India or in a foreign country, directly or indirectly, raises or provides funds or collects funds, whether from a legitimate or illegitimate source, from any person or persons or attempts to provide to, or raises or collects funds for any person or persons, knowing that such funds are likely to be used, in full or in part by such person or persons or by a terrorist organisation or by a terrorist gang or by an individual terrorist to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such 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.
Explanation.--For the purpose of this section,--
(a) participating, organising or directing in any of the acts stated therein shall constitute an offence;
(b) raising funds shall include raising or collecting or providing funds through production or smuggling or circulation of high quality counterfeit Indian currency;
and
(c) raising or collecting or providing funds, in any manner for the benefit of, or, to an individual terrorist, terrorist gang or terrorist organisation for the purpose not specifically covered under section 15 shall also be
- 31 -
construed as an offence.
It is evident from the contents of Section 17 of the Act, 1967 that whoever, in India or in a foreign country, directly or indirectly, raises or provides funds or collects funds, whether from a legitimate or illegitimate source, from any person or persons or attempts to provide to, or raises or collects funds for any person or persons, knowing that such funds are likely to be used, in full or in part by such person or persons or by a terrorist organisation or by a terrorist gang or by an individual terrorist to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such act, the same would be covered under the aforesaid provision. Meaning thereby, raising of funds directly or indirectly to commit a terrorist act by a terrorist organization or by terrorist gang or by an individual terrorist, irrespective of the fact whether this was actually used for commission of such act, would be punishable under Section 17.
Sub-section (c) of Section 17 of the Act, 1967 enlarges the scope of the terrorist act since the same provides that any act for the benefit of an individual terrorist, terrorist gang or terrorist organisation even if not specifically covered under Section 15 shall also be construed as an offence.
Section 22(A) of the Act, 1967 stipulates about the provision for commission of offence by companies which
- 32 -
reads as under :-
―22A. Offences by companies.--(1) Where an offence under this Act has been committed by a company, every person (including promoters of the company) who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person (including promoters) liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised reasonable care to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any promoter, director, manager, secretary or other officer of the company, such promoter, director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.--For the purposes of this section,--
(a) ―company‖ means any body corporate and includes a firm or other association of individuals; and
(b) ―director‖, in relation to a firm, means a partner in the firm.‖ It is evident from the aforesaid provision that where an offence under this Act has been committed by a company, every person (including promoters of the company) who, at the time the offence was committed, was in charge of, and
- 33 -
was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Meaning thereby, the main ingredient for attracting the aforesaid provision will be in the case when the offence has been committed by a company and in that circumstances whoever is connected with the affairs of the company shall be deemed to be guilty of the offence.
9. The reference of the National Investigation Agency Act, 2008 is also required to be made since further investigation has been directed to be conducted by the NIA in the instant case. The NIA Act, 2008 has come into being in order to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations and for matters connected therewith or incidental thereto.
The constitutional validity of the NIA Act was challenged before the Bombay High Court by an accused in the Malegaon bomb blast case on the ground of lack of legislative competence of Parliament to enact such law. The
- 34 -
Bombay High Court upheld the constitutional validity of the NIA Act and while doing so, it has been held that the NIA has been created as an investigating agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India and other matters such as friendly relations with the foreign States. This was not akin to setting up of a police force.
Further, the court concluded that Parliament had the legislative competence to enact the NIA Act and the Parliament can enact the laws in matters not covered under the list.
The court looked at several entries that would enable the Parliament to enact such a law from List-I that allows the Parliament to set-up CBI and two of the concurrent list dealing with the criminal law and criminal procedure respectively.
Further, the court has held that since the Parliament is not incompetent for enacting law for the police force in the union territories it could also set up and agency as NIA to deal with the offences which include offences that are within the domain of the Centre related to hijacking and weapons of mass destruction.
Section 6 of the NIA Act, 2008 contains provision pertaining to investigation of Scheduled offences which reads as under :-
- 35 -
―6. Investigation of Scheduled Offences.--(1) On receipt of information and recording thereof under section 154 of the Code relating to any Scheduled Offence the officer-in-charge of the police station shall forward the report to the State Government forthwith. (2) On receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible. (3) On receipt of report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency. (4) Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence. (5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence. (6) Where any direction has been given under sub-
section (4) or sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency.
(7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue the investigation.
It has been provided in the provision of Section 6 that on receipt of information and recording thereof under section
- 36 -
154 of the Code of Criminal Procedure relating to any Scheduled Offence the officer-in-charge of the police station shall forward the report to the State Government forthwith and on receipt of report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency. Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence.
The Central Government has also got power in view of the provision of Sub-Section (5) or Sub-Section (6) that if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence. In such circumstances, the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency.
Section 7 provides power to transfer investigation to the
- 37 -
State Government as also Section 8 provides power to investigate connected offences.
Section 21 provides provision for appeal whereunder an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law. Therefore, in pursuance to the provision of Section 21, the appellate court is to exercise its appellate power both on facts and law.
10. In the background of the facts/legal provision as stated hereinabove, following questions arise for consideration :-
(i) Whether the appeals are maintainable?
(ii) Whether the NIA has exceeded its jurisdiction in conducting further investigation?
(iii) Whether entire investigation vitiates if TPC is not mentioned in Schedule-I of U.A.(P) Act as a terrorist organization ?
(iv) Whether on the face of the charge-sheet and order taking cognizance no case is made out against the appellants?
(v) Whether issues of mens rea, vicarious liability and victim of extortion can be considered at the stage of cognizance?
(vi) Whether order taking cognizance requires detailed reasons and the order of cognizance impugned in this appeal can be said to be without application of
- 38 -
mind.
(vii) Whether it is a fit case where the matter may be remitted to the learned Special Judge for delving upon the issue of taking cognizance afresh?
(viii) Whether order of sanction is valid?
11. So far as the first issue whether appeal is maintainable, learned counsel for the appellants, although has not addressed the Court on this point at the time of argument but as would appear from the written notes of argument submitted on behalf of the appellants, the issue of maintainability has been raised.
This Court, at the time of argument, had put a query to learned senior counsel appearing on behalf of the NIA as to whether the issue of maintainability of the instant appeals under the provision of Section 21 of the NIA Act is in dispute? Mr. Vikramjit Banerjee, learned Additional Solicitor General of India representing NIA, in all fairness, has submitted that there is no issue of maintainability, rather he has submitted that the appeals are maintainable.
This Court, on the basis of the submission made by the learned counsel for the NIA, is of the view that since the issue of maintainability is not in dispute, there is no need to answer this issue.
12. The second issue pertains to whether NIA has
- 39 -
exceeded its jurisdiction in conducting further investigation.
The argument has been advanced on this issue by the learned counsel appearing for the appellants that the complicity of the appellants in the instant case has surfaced in the second supplementary charge-sheet. Prior to submission of the second supplementary charge-sheet, a case being Tandwa P.S. Case No. 02 of 2016 was instituted for commission of offence under Sections 414/384/386/387/ 120-B of the Indian Penal Code, Sections 25(1B) a/26/35 of the Arms Act and Section 17(1)(2) of the Criminal Law Amendment Act against Binod Kumar Ganjhu, Munesh Ganjhu, Pradeep Ram, Birbal Ganjhu, Gopal Singh Bhokta, Mukesh Ganjhu, Kohram Ji, Aakraman Ji, Anischay Ganjhu, Dipu @ Bhikhan and Bhikhan Ganjhu in which charge-sheet was filed being chargesheet No. 17/16 dated 10.03.2016 in the court of Chief Judicial Magistrate, Chatra against the arrested accused persons namely, Binod Kumar Ganjhu, Munesh Ganjhu, Birbal Ganjhu, Pradeep Ram and Bindu Ganjhu @ Bindeshwar Ganjhu under Sections 414, 384, 386, 387 and 120-B of the Indian Penal Code, Sections 25(1B) a/26/35 of the Arms Act and Section 17(1)(2) of the Criminal Law Amendment Act and as such, it is evident from the first charge-sheet that the names of the appellants do not transpire therein but without any leave of the court as
- 40 -
required under Section 173(8) of the Code of Criminal Procedure, further investigation has been carried out and even after submission of first supplementary charge-sheet no leave of the court below has been obtained for further investigation. The second supplementary charge-sheet has been submitted in which the complicity of the appellants has transpired, on the basis of which, cognizance has been taken by the learned Special Judge, NIA, Ranchi.
Learned senior counsel, representing the NIA, has submitted that after institution of the F.I.R. being Tandwa P.S. Case No. 02 of 2016 dated 11.01.2016, certain incriminating materials surfaced with respect to involvement of TPC which has been declared as unlawful association by virtue of gazette notification issued by the Department of Home, Government of Jharkhand dated 14.07.2006 and therefore, the Central Government, in exercise of power conferred under Sub-Section (5) of Section 6 read with Section 8 of the NIA Act, 2008 vide MHA, New Delhi CTCR Division order no. 11011/08/2018/NIA dated 13.02.2018, directed the NIA to take up investigation of the case and accordingly Tandwa P.S. Case No.02 of 2016 dated 11.01.2016 was re-registered as NIA Case No. R.C.- 06/2018/NIA/DLI dated 16.02.2018 under Sections 414, 384, 386, 387 and 120-B of the Indian Penal Code, Sections 25(1B) a/26/35 of the Arms Act, Section 17(1)(2) of the
- 41 -
Criminal Law Amendment Act and Sections 16, 17, 20 and 23 of the U.A.(P) Act and in pursuance thereof, the record of Tandwa P.S. Case No. 02 of 2016 dated 11.01.2016 was handed over to the NIA.
It has further been submitted by referring to the order taking cognizance dated 11.03.2016 in Tandwa P.S. Case No. 02 of 2016 that investigation with respect to remaining accused persons was allowed to be continued and in such circumstances, further investigation carried out by the NIA cannot be said to suffer from infirmity.
Further submission has been made that even at the time of submission of first charge-sheet, the court below has been apprised that investigation in respect of accused persons A-1 to A-16 has been completed but as regard to the rest of the accused persons/suspect/unknown accused including A-17 and other unknown, further investigation had continued as per the provision of Section 173(8) of the Code of Criminal Procedure and in that view of the matter, the investigation was carried out and, thereafter, second supplementary charge-sheet was submitted. In view of such factual aspect, it cannot be said that the further investigation conducted leading to submission of second supplementary charge-sheet is in the teeth of the provision of Section 173(8) of the Code of Criminal Procedure.
It has further been submitted that the said issue has
- 42 -
already been dealt with by Hon'ble Apex Court in Pradeep Ram v. State of Jharkhand and Another [2019 SCC OnLine SC 825.
13. This Court, having heard the learned counsel for the parties on this issue, deems it fit and proper first to refer the relevant provision of NIA Act, 2008 for the purpose of answering the issue in question. The relevant provision is Section 6 quoted as above.
It is evident from the provision of Section 6 of the Act, 2008 that on receipt of information and recording thereof under section 154 of the Code of Criminal Procedure relating to any Scheduled Offence, the officer-in-charge of the police station shall forward the report to the State Government forthwith.
Sub-Section (2) thereof stipulates that on receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible.
Sub-Section (3) of Section 6 provides that on receipt of report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report as to whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other
- 43 -
relevant factors, is it a fit case to be investigated by the Agency.
Sub-Section (4) provides that where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence.
Sub-Section (5) provides that notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence.
Sub-Section (6) thereof provides that where any direction has been given under sub-section (4) or sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency.
Thus, it is evident that Central Government has got such power under the provision of Section 6.
The fact which has been brought on record by way of first supplementary charge-sheet wherefrom it transpires that initially before the Tandwa Police Station an F.I.R. was registered being Tandwa P.S. Case No. 02 of 2016 dated 11.01.2016 but some incriminating materials have come in course of investigation pertaining to raising of funds for TPC,
- 44 -
a terrorist gang, which has been declared as a proscribed organization by the Home Department of the State of Jharkhand vide notification dated 14.07.2006. The Government of India, Ministry of Home Affairs, CTCR Division, New Delhi vide its order F.No. 11011/08/2018/NIA dated 13.02.2018, in exercise of power conferred under Sub- Section (5) of the Section 6 read with Section 8 of the NIA Act, 2008 suo motu directed the NIA to take up the investigation of the case registered vide Tandwa P.S. Case No. 02 of 2016. In pursuance to the aforesaid direction, the investigation has been taken further by the NIA pertaining to the aforesaid case. The NIA has started investigation after records having been received from Tandwa Police Station and submitted first supplementary charge-sheet on 21.12.2018 against 16 accused persons while the investigation against rest of the accused persons/suspects/unknown accused including A-17 and other unknown has been continued as per the provision of Section 173(8) of the Code of Criminal Procedure. Thereafter, the investigation has been carried out and on completion, the second supplementary charge-sheet has been submitted on 10.01.2020 against 05 accused persons including the appellants herein.
The issue has been agitated by the learned senior counsel appearing for the appellant that under the provision of Section 173(8) of the Code of Criminal Procedure, for the
- 45 -
purpose of carrying out further investigation the leave of the court is required and in absence thereof the entire investigation will be said to be vitiated but on the basis of the factual aspect as referred hereinabove and on the basis of the materials available in the charge-sheet that either while submitting the first supplementary charge-sheet or second supplementary charge-sheet the further investigation has continued in pursuance to the provision of Section 173(8) of the Code of Criminal Procedure as because the provision of Section 173(8) specifically provides that nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).
It is clear from the provision of Section 173(8) that there is no embargo in carrying out further investigation ever after submission of the charge-sheet. As has been referred hereinabove that the further investigation has continued after submission of the first charge-sheet submitted by the NIA
- 46 -
and thereafter second supplementary charge-sheet has been submitted and hence, it cannot be said that the further investigation either of the first supplementary charge-sheet or the second supplementary charge-sheet is in the teeth of the provision of Section 173(8) of the Code of Criminal Procedure. Further, it required to refer herein that the issue pertaining to first supplementary charge-sheet fell for consideration before the Hon'ble Apex Court in the case of Pradeep Ram who is also an accused in this case(A-5) and one of the issues framed, as would be evident from paragraph 9.3.(iii), that whether NIA could conduct any further investigation in the matter when investigation in PS Case No. 2 of 2016 having already been completed and charge-sheet has been submitted on 10-3-2016 with regard to which cognizance has already been taken by the Chief Judicial Magistrate, Chatra on 11-3-2016?
The Hon'ble Apex Court [Pradeep Ram v. State of Jharkhand and Another (Supra)] answering the aforesaid issue has given a finding at paragraph 49 that ―we, thus, do not find any lack of jurisdiction in NIA to carry on further investigation and submit a supplementary report. In the counter-affidavit, it has been stated by the Union of India that NIA has concluded investigation and already a charge-sheet has been submitted on 21-12-2018 vide first supplementary charge-sheet. We, thus, do not find any lack of jurisdiction in
- 47 -
the NIA to carry on further investigation in the facts of the present case".
In that view of the matter, when the Hon'ble Apex Court has already decided about the jurisdiction of NIA, further investigation cannot be questioned. It requires to refer that in the first supplementary charge-sheet specific stipulation has been made that investigation against some of the accused persons is continuing as would appear from paragraph 17.28 as contained in first supplementary charge-sheet which is being referred for ready reference :-
"17.28. Continuance of further investigation u/s 173(8) CrPC against Deepu @ Bhikhan (A-17) and others : As regard to the rest of the accused persons/suspects/unknown accused including A-17 and others unknown, further investigation is being continued as per the provisions of 173(8) CrPC."
Learned counsel appearing for the appellants has relied upon the judgment rendered by Orissa High Court in the case of Kunjalata Dei v. State of Orissa [1984 SCC OnLine Ori 223], the judgment rendered by Kerala High Court in the case of State v. Gopakumar [1988 SCC OnLine Ker 66], the judgment rendered by Patna High Court in the case of Yamuna Pathak v. The State of Bihar and Another [1992 SCC OnLine Pat 246] as also the judgment rendered by Hon'ble Apex Court in the case of Vinay Tyagi v. Irshad Ali
- 48 -
Alias Deepak and Others [(2013) 5 SCC 762].
In all these judgments, the question fell for consideration as to whether without obtaining further evidence, oral or documentary, further report can be submitted by the police? There is no dispute that further report can be submitted by the police under Section 173(8) of the Code of Criminal Procedure. Taking into consideration the aforesaid provision of law, it has been decided in Kunjalata Dei v. State of Orissa (Supra) that even after further investigation under the provision of Section 173(8) Cr.P.C. no incriminating material has come and in that view of the matter order was passed by the revisional court holding that order of the Sessions Judge directing framing of charge against the petitioner was not justified.
Even in the case of State v. Gopakumar (Supra), the court has taken into consideration about the further material wherein it has been decided that before resorting to the provision of Section 173(8) Cr.P.C. the formal permission is to be obtained from the court.
In the case of Yamuna Pathak v. The State of Bihar and Another (Supra) the fact involved was that even after further investigation no fresh material had come and subsequent charge-sheet was submitted on the basis of same material which had already been collected before submission of charge-sheet.
- 49 -
In the case of Vinay Tyagi v. Irshad Ali Alias Deepak and Others (Supra) the issue which fell for consideration before the Hon'ble Apex Court was that there is no specific embargo upon the power of the Magistrate to direct further investigation on presentation of report in terms of Section 173 (2) of the Cr.P.C. The supplementary report filed by the investigating agency shall be dealt with as a part of primary report. Both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has committed the offence. If the answer is in the negative on the basis of these reports, the court shall discharge an accused in compliance with the provisions of Section 227 of the Code.
Thus, in the said case the Hon'ble Apex Court has dealt with the issue of an order which is to be tested at the time of an application filed under Section 227 or 228 Cr.P.C., therefore, the said ratio of the judgment will not be applicable in the present case since the stage of charge has not yet come, rather, only order taking cognizance is under challenge.
It is settled position of law that each and every judgment is to be tested on the basis of the facts and circumstances involved in that case. The fact of the case in hand is that after
- 50 -
submission of second supplementary charge-sheet sufficient material has been surfaced against the appellants as would appear from paragraph 17.12, 17.13 and 17.10 of the second supplementary charge-sheet. So far as seeking permission for further investigation is concerned, the same has been reported to the concerned court as has been dealt hereinabove and the issue has also been answered by Hon'ble Apex Court in Pradeep Ram v. State of Jharkhand and Another (Supra) case.
As such, the facts of the cases referred hereinabove are not applicable to the facts of this case.
In that view of the matter, we are of the considered view that the NIA has not exceeded its jurisdiction in conducting further investigation. The question is answered accordingly.
14. Whether entire investigation vitiates if TPC is not mentioned in Schedule-I of U.A.(P) Act as a terrorist organization?
So far as this issue is concerned, submission has been made by the learned counsel appearing on behalf of the appellantd by referring to the provision of U.A.(P) Act, 1967, more particularly, the provision as contained under Section 2(m) wherein the definition of terrorist organization has been provided which means an organisation listed in the Schedule or an organisation operating under the same name as an organisation so listed. While emphasizing upon the said
- 51 -
definition, submission has been made that TPC being not referred in Schedule as contained in U.A.(P) Act, 1967, as such, the TPC cannot be termed as a terrorist organization and in that view of the matter, the entire investigation carried out, keeping the provision of U.A.(P) Act, 1967 into consideration, will vitiate.
Learned senior counsel appearing for the NIA has submitted by referring to the charge-sheet that the TPC has not been considered to be a ‗terrorist organization' by the investigating agency, rather, considering TPC as a ‗terrorist gang', the entire investigation has been conducted and as per the definition of terrorist gang in Section 2(l), ―terrorist gang‖ means any association, other than ‗terrorist organisation', whether systematic or otherwise, which is concerned with, or involved in, terrorist act.
15. We have heard learned counsel for the parties on this issue and deem it fit and proper to refer the definition of ―terrorist organization‖ vis-à-vis ―terrorist gang‖ which read as under :-
―2(l) ―terrorist gang‖ means any association, other than terrorist organisation, whether systematic or otherwise, which is concerned with, or involved in, terrorist act.‖ ―2(m) ―terrorist organisation‖ means an organisation listed in the Schedule or an organisation operating under the same name as an organisation so listed.‖ There is no dispute that for coming into the fold of
- 52 -
U.A.(P) Act, 1967, if any investigation is being conducted considering the organization to be a ‗terrorist organization', reference of such organization is required to be there in the Schedule and in absence thereof, the provision of U.A.(P) Act, 1967 will not be applicable.
The ‗terrorist gang' has also been defined which means any association, other than ‗terrorist organisation', whether systematic or otherwise, which is concerned with, or involved in, terrorist act, meaning thereby that if any organization or association has been found to be involved in terrorist act, the same will be treated to be a ‗terrorist gang' irrespective of the fact that such organization has not been listed in the Schedule as contained in U.A.(P) Act, 1967.
This Court has gone across the charge-sheet submitted by NIA and found therefrom that the TPC has not been considered as a ‗terrorist organization' rather it has been considered to be a ‗terrorist gang' and thereafter the entire investigation has been conducted. Therefore, even if an organization or an association is not referred in the Schedule, the investigation or complicity of the organization or association or the individual associated with such association will not be carried out is not the purport of the Act, 1967, rather if involvement of an association in terrorist act is found by the investigating agency then also the complicity can be attributed for commission of offence under the penal
- 53 -
offence of U.A.(P) Act, 1967.
It requires further to refer the scope of definition of terrorist act as has been changed in the year 2004 as also by way of amendment in the year 2008. Section 15 of the U.A.(P) Act, 1967 reads as under :-
"15. Terrorist act.--4(1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,--
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause--
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or (iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or]
(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of
- 54 -
any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter-governmental organisation or any other person to do or abstain from doing any act; or commits a terrorist act.
[Explanation.--For the purpose of this sub-section,--
(a) ―public functionary‖ means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;
(b) ―high quality counterfeit Indian currency‖ means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule.] (2) The terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule. It is evident from the above definition that whoever, with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country, does any act by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature in
- 55 -
such a manner as to cause or likely to cause death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community in India or in any foreign country or causes damage or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies, detains any person, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act.
Thus, the emphasis of Section 15 in the Act of 2004 was only on the unity, integrity, security or sovereignty of India in general but also on the people or any section of people be it in India or in foreign country. Any act, therefore, done with intent to threaten or likely to threaten the unity, integrity, security, or sovereignty of India or to strike terror in the people or any section of the people in India or in any foreign country was termed as terrorist act.
Now coming to the Act of 2008 as stood amended from 31.12.2008, the definition of the terrorist has been expanded by further amending Section 15 and even the act of funding
- 56 -
etc. under the Act of 2008 have been made more extensive. The act that would not have been fallen within the meaning of terrorist act and similarly, the act of providing or collecting funds which would not have fallen within the ambit of Section 17, have now become punishable under Section 17 because of the expansion of the scope of Section 17 by insertion of the provision of Sub-Section (c) thereof and so have been done with regard to conspiracy etc. which is punishable under Section 18.
Sub-Section (c) of Section 15 uses the expression ―any other act‖ and ―any other persons‖ which makes it clear that if one detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, threatens the sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India commits a terrorist act. Therefore, as compared to the Act of 2004, some more activities have been added under Section 15 of the Act of 2008 to bring those activities within the ambit of the terrorist act.
It is evident from the amendment made in Section 15 by virtue of Amended Act, 2013 that again the economic security has been added under the fold of the ―terrorist act‖.
- 57 -
Therefore, starting from the Act, 2004 then in 2008 and 2013 more acts or activities have been added to be treated as ―terrorist act‖. The purpose for adding more activities to be treated as terrorist act is to maintain the unity, integrity, security etc. of the country. The legislature further takes care that no one be allowed to take benefit of technicalities as even if various organizations have not been listed in the Schedule of U.A.(P) Act, nobody may be allowed to take advantage of that and, therefore, the ‗terrorist gang' has been inserted. The intent behind introducing such definition of terrorist gang is to stop such technical pleas which may be raised.
It requires to refer herein at the risk of repetition that the scope of U.A.(P) Act, 1967 is to provide for the more effective prevention of certain unlawful activities of individuals and associations and for dealing with terrorist activities and for matters connected therewith. The scope of the Act was widened in the year 2004 and subsequently in the year 2013. The purpose is to protect the unity, integrity, security, economic security, or sovereignty of India and that is the reason the Parliament has inserted economic security in the legislation to achieve the object and intent of the Act.
Further, even if the terrorist organization has not been listed in the Schedule at the time of commission of offence but subsequently the same has been listed then also the complicity of such organization will be there for involvement
- 58 -
in the terrorist act.
This aspect of the matter has been considered by the Hon'ble Apex Court in the case of Redaul Hussain Khan v. National Investigation Agency [(2010) 1 SCC 521] wherein the organization namely, DHD(J) found to be involved in purchasing arms and ammunitions and in consequence upon such allegation the person concerned was sent to police custody on 31.05.2009. An issue was raised by the aggrieved that as on 31.05.2009 the said organization was not listed under the Schedule of U.A.(P) Act, 1967, rather the organization was listed under the Schedule only on 09.07.2009 and, therefore, argument was advanced about non-applicability of the provision of U.A.(P) Act, 1967. However, the said argument was not accepted giving a finding which is quoted as under :-
―... ... ... in view of the definition of ―terrorist act‖ in Section 15 of the 1967 Act and the provisions of Sections 13 and 17 thereof, there was little doubt that even on the date when the petitioner was apprehended, DHD (J) was indulging in terrorist acts, although it came to be declared as an ―unlawful association‖ some time later.......‖ It is thus, evident that for branding a person as a terrorist, his membership of a terrorist organization is not sine qua non. It is sufficient even if it is shown that his activities are within the scope of a terrorist act as stood defined by Section 15 in the year 2004 or in the year 2008 or
- 59 -
in the year 2013.
In order to substantiate their argument, reliance has been placed by the learned counsel for the appellants upon the judgment rendered by the Hon'ble Apex Court in the case of Tolaram Relumal and Another v. State of Bombay [AIR 1954 SC 496] in particular referring to paragraph 8 thereof wherein it has been laid down that if two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty.
It is evident that the aforesaid judgment has been rendered in a case pertaining to charge made against the appellant under Section 18(1) of the Bombay Rent Restriction Act, 1947 wherein a sum of Rs.2400 as premium or puggree in respect of the grant of lease of Block No. 15 in a building under construction was imposed. Finding the guilty of the charge, the appellants were sentenced to undergo two months' RI and a fine of Rs 1,200. The Bombay High Court dealt with the provision of Section 18(1) which refers to the grant, renewal or continuance of a lease but prima facie, it was found that the executory agreement to grant a lease is not coming under the fold of either grant, renewal or continuance of a lease and in that view of the matter the principle has been laid down as in paragraph 8 that if two
- 60 -
possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. But so far as the fact of the case in hand is concerned, the said stage has not yet come since the case before us is at the stage of order taking cognizance and unless the entire evidence would be appreciated by going through the relevant documents as also the oral evidence, which will come in course of trial, then only the question of possible view would come into surface and in that circumstances only principle can be applied as has been laid down at paragraph 8 and therefore, at this stage the judgment rendered in the case of Tolaram Relumal and Another v. State of Bombay (Supra) would not be applicable in the facts of this case.
Reliance has also been placed upon the judgment rendered by Hon'ble Apex Court in Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijjaya and Others [(1990) 4 SCC 76]. We have gone through the fact of the aforesaid case and found therefrom that the judgment has been rendered holding therein that the intention of the accused persons was to be seen and it was found that the intention of the accused persons was to eliminate the rivals and gain supremacy in the underworld so that they may be known as the bullies of the locality and would be dreaded as
- 61 -
such. The designated court, finding non-availability of the incriminating material on record and the documents relied, was of the view that prima facie no case is made out.
It further appears form the aforesaid judgment that the Hon'ble Apex Court has taken into consideration the order passed at the stage of charge and, therefore, it has been held at paragraph 4 and 7 thereof that under Section 227 Cr.P.C. a duty is cast on the judge to apply his mind to the material on record and if on examination of the record he does not find sufficient ground for proceeding against the accused, he must discharge him. Therefore, admittedly in the case of Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijjaya and Others (Supra) the matter has been appreciated by the Hon'ble Apex Court on an application dealt with by the court under Section 227 Cr.P.C. but the case in hand is not at the stage of discharge, rather the order taking cognizance has been challenged and therefore, the material documents on record cannot be examined at this stage and hence, the judgment passed in the case of Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijjaya and Others (Supra) is also not applicable in the facts of this case.
Another judgment relied by the learned counsel for the appellant rendered by Hon'ble Apex Court in Hitendra Vishnu Thakur and Others v. State of Maharashtra and
- 62 -
Others [(1994) 4 SCC 602] is also not applicable in the facts of this case as in the said case the Hon'ble Apex Court has dealt with the issue arising at the time of framing of charge. As would be evident from paragraph 14 thereof, it has been held therein that the Designated Court must record its satisfaction about the existence of a prima facie case on the basis of the material on the record before it proceeds to frame a charge-sheet against an accused for offences covered by TADA. It is an obligation of the Designated Court to take extra care to examine the evidence with a view to find out whether the provisions of the Act apply or not. The Designated Court is, therefore, expected to carefully examine the evidence and after analysing the same come to a firm conclusion that the evidence led by the prosecution has established that the case of the accused falls strictly within the four corners of the Act before recording a conviction against an accused under TADA.
In view of the aforesaid paragraph of the judgment, admittedly, the matter scrutinized by the Hon'ble Apex Court was at stage of framing of charge but that stage has not yet come in the present case. Hence, at this stage the judgment rendered in the case of Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others (Supra) would also not be applicable in the facts of this case.
Another judgment relied upon by the appellant has been
- 63 -
rendered in People's Union for Civil Liberties and Another v. Union of India [(2004) 9 SCC 580]. In the aforesaid judgment the court upheld the legislative competence of Parliament to enact POTA. In doing so, the court explained that Entry 1 of the State List (public order) empowers States to enact a legislation relating to public order or security in so far as it affects or relates to a particular State. The court noted that terrorism is a trans-national and not a State- specific problem, affecting the security and sovereignty of the nation. In view of the aforesaid aspect of the matter, at present and at this stage no benefit can be extended in favour of the appellants by placing reliance upon the judgment rendered in the case of People's Union for Civil Liberties and Another v. Union of India (Supra).
In the case of Manjit Singh alias Mange v. Central Bureau of Investigation through its Superintendent of Police [(2011) 11 SCC 578] at paragraph 102 to 107 it has been held that a person can be charged only when the prosecution establishes that the same was committed with an intent to achieve one or the other ends mentioned in the Section. The Hon'ble Apex Court further went on to hold that to bring an act under the ambit of ―terrorist act‖ the prosecution must prove that it was done with an intent to commit a terrorist act/strike terror and if fear/terror/panic is caused as a consequence of the criminal act whereas the
- 64 -
actual act was not committed with an intent to strike terror then the provisions relating to terrorist act is not applicable.
We are of the view that the aforesaid judgment cannot be made applicable at this stage as whether the conduct of the appellants of collecting money for TPC is having any intent or not bringing the aforesaid act under the ambit of ―terrorist act‖ can be looked into only at the stage of trial when the documentary and oral evidence would be considered.
In Extra-Judicial Execution Victim Families Association and Another v. Union of India and Another [(2016) 14 SCC 536], at paragraph 2 to 8, upon which reliance has been placed by the learned counsel for the appellants, the term ―terrorist‖ or ―terrorist gang‖ has been explained which would mean an individual or combination or body of individuals who are the perpetrator (s) of an act with an intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India by any of the acts mentioned in Section 15 of the U.A.(P) Act.
So far as applicability of this judgment is concerned, the same is not fit to be appreciated at this stage since the order taking cognizance is under challenge herein and as such, the same is to be tested only on the basis of the appreciation of
- 65 -
evidence led against the appellants.
Further, after going through the material surfaced against the appellants in course of investigation, as under
paragraphs 17.12, 17.13 and 17.10 respectively of the second supplementary charge-sheet, this Court is of the view that prima facie materials have come showing the complicity of the appellants. The direct complicity of the appellants in collecting fund to aid TPC, a ―terrorist gang‖ for the purpose of running of the business smoothly is indicated. Therefore, we are of the view that the judgment rendered in the case of Extra-Judicial Execution Victim Families Association and Another v. Union of India and Another (Supra) is not fit to be considered at this stage, rather the same depends upon the scrutiny of the materials available which is to be looked into either at the time of framing of charge or at the stage of trial.
In view of the discussion made hereinabove, we are of the considered view that since the investigation has been conducted treating the TPC as a ―terrorist gang‖ and not treating it as ―terrorist organization‖, hence the investigation initiated against the TPC and its associates or institution of criminal proceeding will not be vitiated.
As such, the question is accordingly answered.
16. Whether on the face of the chargesheet and order taking cognizance, no case is made out?
- 66 -
It has been argued by the learned counsel for the appellants that even if the entire charge-sheet or the order taking cognizance is taken to be true on the face of it in entirety, no case is made out and hence the complicity of the appellants in the instant case is fit to be quashed.
It requires to refer herein the position of law for making interference by the court of law either in the F.I.R. or in the order taking cognizance. The Hon'ble Apex Court in State of Haryana and Others v. Bhajan Lal and Others [1992 Supp (1) 335] has laid down the guideline under paragraph 102 and 103. The relevant passages are extracted and quoted as under:-
―102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against
- 67 -
the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to
- 68 -
the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.‖ The ratio laid down by the Hon'ble Apex Court in State of Haryana and Others v. Bhajan Lal and Others (Supra), has again been reiterated in Fakhruddin Ahmad v. State of Uttaranchal and Another [(2008) 17 SCC 157] at paragraph 20 which reads as under :-
―20. So far as the scope and ambit of the powers of the High Court under Section 482 of the Code is concerned, the same has been enunciated and reiterated by this Court in a catena of decisions and illustrative circumstances under which the High Court can exercise jurisdiction in quashing the proceedings have been enumerated. However, for the sake of brevity, we do not propose to make reference to the decisions on the point. It would suffice to state that though the powers possessed by the High Court under the said provision are very wide but these should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The inherent powers possessed by the High Court are to be exercised very carefully and with great caution so that a legitimate prosecution is not stifled. Nevertheless, where the High Court is convinced that the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused or where the allegations made in the FIR or the complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just
- 69 -
conclusion that there is sufficient ground for proceeding against the accused, the powers of the High Court under the said provision should be exercised.‖ Again in the case of Parbatbhai Aahir alias Parbatbhai Bhimsinbhai Karmur and Others v. State of Gujarat and Another [(2017) 9 SCC 641] the scope of interfering with the order taking cognizance or the F.I.R. at the threshold has been dealt with at paragraph 16 which is quoted as under:-
―16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions:
16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court. 16.2. The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.
16.4. While the inherent power of the High Court has a
- 70 -
wide ambit and plenitude it has to be exercised (i) to secure the ends of justice, or (ii) to prevent an abuse of the process of any court.
16.5. The decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.
16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.
16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned.
16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.
16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and 16.10. There is yet an exception to the principle set
- 71 -
out in propositions 16.8. and 16.9. above. Economic offences involving the financial and economic well- being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.‖
17. We have been persuaded by the learned counsel for the parties to examine the complicity of the appellants as has surfaced in course of investigation on the basis of which the charge-sheet has been submitted and cognizance has been taken in order to reach to the conclusion as to whether prima facie case is made out against the appellants even if the entire allegation as found in the charge-sheet is taken to be true on the face of it.
Admittedly, the name of the appellant-Vinit Agarwal (A-
20) does not transpire in the first supplementary charge- sheet but in the second supplementary charge the material has come against his as would appear from paragraph 17.12 of the second supplementary charge-sheet so far as it relates to Vinit Agarwal (A-20), appellant of Criminal Appeal (DB) No. 71 of 2020, which is being referred hereunder :-
―17.12 Role and activities of / offences established against Vinit Agarwal (A-20) : Vinit Agarwal (A-20) is the Vice President of M/s B K B Transport and he paid levy to the tune of rupees 30 lakhs to members of
- 72 -
terrorist gang TPC including Akraman (A-14). Oral evidence establishes that A-20, colluded with members of terrorist gang, TPC and others and abetted/promoted thereby strengthened TPC in criminal conspiracy with members of the terrorist gang with an intent to raise funds for the above said terrorist gang through co-accused Premvikas @ Mantu Singh (A-11) and Akraman (A-14) for smooth functioning of his business. Thereby, it is established that A-20 criminally conspired with A-11 and A-14 and committed offence under sections 120B of the IPC r/w section 17 of the UA(P) Act 1967 and substantive offences under Sections 17 and 18 of the UA(P) Act 1967, section 17 of the CLA Act and Section 201 of IPC.‖ It is evident from the fact came in course of investigation against the appellant (A-20) that he being the Vice President of M/s. B K B Transport, paid levy to the tune of rupees 30 lakhs to members of terrorist gang TPC including Akraman (A-14). He colluded with members of terrorist gang, TPC and others and abetted/promoted thereby strengthened TPC in criminal conspiracy with members of the terrorist gang with an intent to raise funds for the above said terrorist gang through co-accused Premvikas @ Mantu Singh (A-11) and Akraman (A-14) for smooth functioning of his business.
Further, it has also come in the chargesheet that one independent witness in his statement recorded under Section 164 Cr.P.C. has stated that Vinit Agarwal (A-20) used to take care of finances and operation of the company. He gave the
- 73 -
witness Rs. 30 lakhs (Rs. 10 lakhs each three times) to be further handed over the Akraman Ji (A-14).
On the basis of such allegations, prima facie it appears that the appellant colluded with members of terrorist gang (TPC) and abetted/promoted/thereby strengthened TPC in criminal conspiracy with members of the terrorist gang with an intent to raise funds for the above said terrorist gang through co-accused Premvikas @ Mantu Singh (A-11) and Akraman (A-14) for smooth functioning of his business. Therefore, it is difficult to hold that it does not prima facie appear that A-20 criminally conspired with co-accused and committed offence under Section 120-B of the Indian Penal Code read with Section 17 of the U.A.(P) Act and substantive offences under Sections 17 and 18 of the U.A.(P) Act, Section 17 of the C.L.A. Act, 1908 and Section 201 of the Indian Penal Code.
So far as material against Amit Agarwal @ Sonu Agarwal (A-21), appellant of Criminal Appeal (DB) No. 117 of 2020 is concerned, as would appear from paragraph 17.13 of the second supplementary charge-sheet, which is being referred hereunder :-
―17.13 Role and activities of / offences established against Sonu Agarwal (A-21) : Sonu Agarwal (A-21 is the proprietor of M/s. Shree Balaji Transport Pvt. Ltd. The said M/s. Balaji Transport Pvt. Ltd. transports coal for Hindalco Co. He used to arrange cash from local traders and other businessmen for making
- 74 -
payments of levy to Village committee members and TPC for smooth functioning of his business. It is established that he criminally conspired with co- accused Sudhanshu Ranjan @ Chhotu Singh (A-8) for raising funds for terrorist gang TPC on being demanded by Akraman (A-14). The accused (A-21) used to collect funds in cash from different traders by showing a Rs.10 note to traders and the amount to be collected was decided by A-21. Further from the residential premise of A-21, cash amounting to Rs.7,91,000/- and Singapore Dollar 10,000/- were seized and from office premise of A-21, cash amounting to Rs.3,72,750/- and Hongkong Dollar 8760/- were seized and the above said cash was confirmed as Proceeds of Terrorism by Designated Authority vide okrder No. 11011/08/2018/NIA, Govt. of India dated 07 Dec 2018. Therefore, it is established that Sonu Agarwal @ Amit Agarwal (A-21), colluded with members of terrorist gang, TPC and abetted / promoted / thereby strengthened TPC in criminal conspiracy with member of the terrorist gang with an intent to raise funds for the above said terrorist gang through co-accused A-4, A-5, A-7, A-8, A-10 and A-14 for smooth running of his business. Thereby, it is established that A-21 criminally conspired with co- accused and committed offences under sections 120B of IPC r/w sections 17 of the UA(P) Act and substantive offences under Sections 17, 18 and 21 of the UA(P) Act & Section 17 of the CLA Act, 1908.‖ It is evident from the materials collected during the course of investigation that he (A-21), being the proprietor of M/s. Shree Balaji Transport Pvt. Ltd. used to transport coal for Hindalco Co. He used to arrange cash from local traders and other businessmen for making payments of levy to Village committee members and TPC for smooth functioning
- 75 -
of his business. Prima facie it appears that he criminally conspired with co-accused Sudhanshu Ranjan @ Chhotu Singh (A-8) for raising funds for terrorist gang TPC on being demanded by Akraman (A-14). The accused (A-21) used to collect funds in cash from different traders by showing a Rs.10 note to traders and the amount to be collected was decided by A-21. Further from the residential premise of A- 21, cash amounting to Rs.7,91,000/- and Singapore Dollar 10,000/- were seized and from office premise of A-21, cash amounting to Rs.3,72,750/- and Hongkong Dollar 8760/- were seized and the above said cash was confirmed as Proceeds of Terrorism by Designated Authority vide order No. 11011/08/2018/NIA, Govt. of India dated 07 Dec 2018.
On the basis of such allegations, prima facie it appears that the appellant colluded with members of terrorist gang (TPC) and abetted/promoted/thereby strengthened TPC in criminal conspiracy with members of the terrorist gang with an intent to raise funds for the above said terrorist gang through co-accused A-4, A-5, A-7, A-8, A-10 and A-14 for smooth running of his business. Therefore, it would be difficult to hold that it does not prima facie appear that A-21 criminally conspired with co-accused and committed offence under Section 120-B of the Indian Penal Code read with Section 17 of the U.A.(P) Act and substantive offences under Sections 17, 18 and 21 of the U.A.(P) Act and Section 17 of
- 76 -
the C.L.A. Act, 1908.
So far as material against Mahesh Agarwal (A-18) appellant of Criminal Appeal (DB) No. 119 of 2020 is concerned, relevant paragraph would be 17.10 of the second supplementary charge-sheet, which is being extracted and quoted hereunder :-
―17.10 Role and activities of / offences established against Mahesh Agarwal (A-18) : Mahesh Agarwal (A-
18 is the Managing Director of M/s Adhunik Power and Natural Resources, Jharkhand. Evidence establish that on his direction, payment was made through RTGS mode to coal transporters against work orders. Amount @ Rs.200/- per MT was given to transporters for the purpose of paying to TPC operatives and village committee for smooth functioning of the business concerns. For promoting his coal trade business, he connived with the co-accused persons namely Ajay Singh, Akraman and Bindeswar Ganjhu and thereby abetted in raising of funds for the terrorist gang. The documentary and oral evidences establish that the said accused was paying levy to members of various groups like Village committee members, CCL, weigh bridge operators, TPC members such as Akraman (A-
14), Bindu Ganjhu (A-5) and Premvikas @ Mantu Singh (A-11) and was involved with co-accused persons namely Sanjay Jain (A-9) and Ajay Kumar @ Ajay Singh in the commission of instant crime and conspiracy. The E-mail dated 03 April, 2017 and 30th April, 2017 recovered at the instance of co-accused Sanjay Jain (A-9) and the documents produced by witness Rakesh Jain revealed that Mahesh Agrawal (A-
18) was in the knowledge of levy being paid to CCL and village committee. The four e-mails dated 01/05/2017, 02/05/2017, 16/05/2017 and 21/05/2017 which were produced by witness Rakesh Jain, which were
- 77 -
sent by employees of Adhunik Power & Natural Resources Ltd. to Raja Patni, M/s. National Parivahana transporter for Adhunik Power, stating that there is pending payments which was supposed to be paid to the Committee, regular phone calls being made by Akraman @ Netaji, (Regional Commander, TPC)(A-14) to Ajay Kumar (Branch Office, Ranchi) to pay pending freight charges to transporters, threatening calls by Akraman @ Netaji to stop lifting of coal, plans of Ajay Kumar (Branch Office, Ranchi) to meet Akraman @ Neta Ji, demand draft of Rs. 40 lakh raised in favour of Amrapali loading account committee, intimating that Sanjay Jain is meeting Akraman Ji @ Neta Ji (A-14). Therefore, Mahesh Agarwal was in the knowledge that levy is being paid by their company to TPC leaders and operatives, thus colluded in terror financing of TPC. Further, Mahesh Agarwal deliberately deleted the emails marked as CC to him. It is established that Mahesh Agarwal (A-18) colluded with members of terrorist gang TPC, and others and abetted / promoted/thereby strengthened TPC by engaging in criminal conspiracy with members of the terrorist gang with an intent to raise funds for the above said terrorist gang through co-accused Akraman (A-14), Sanjay Jain (A-9) and Ajay Kumar @ Ajay Singh (A-22) for smooth running of his business. Thereby, accused Mahesh Agarwal (A-18) committed offence under Section 120-B of IPC r/w Section 17 of the UA(P) Act 1967 and substantive offences u/s Sections 17 and 18 of the UA(P) Act 1967, Section 17 of the CLA. Act, 1908 and section 201 of IPC.‖ It is evident from the perusal of the aforesaid paragraph that the appellant being the Managing Director of M/s Adhunik Power and Natural Resources, Jharkhand, used to make payments of levy to Village committee members and
- 78 -
TPC for smooth functioning of his business. It appears that he conspired with co-accused Akraman (A-14), Sanjay Jain (A-9) and Ajay Kumar @ Ajay Singh (A-22) for raising funds for terrorist gang TPC on being demanded by Akraman (A-14). It has also come that on the instruction of the appellant payment was made through RTGS mode to coal transporters against work orders @ Rs.200/- per MT to transporters for the purpose of paying to TPC operatives and village committee for smooth functioning of the business concerns. It has also come that for promoting his coal trade business, he connived with the co-accused persons namely Ajay Singh, Akraman and Bindeswar Ganjhu and thereby abetted in raising of funds for the terrorist gang.
Therefore, prima facie it appears that the appellant was in the knowledge that levy is being paid by their company to TPC. Further, it has come that the appellant deliberately deleted the emails marked as CC to him. Prima facie it appears that the appellant colluded with members of terrorist gang TPC, and others and abetted / promoted/thereby strengthened TPC by engaging in criminal conspiracy with members of the terrorist gang with an intent to raise funds for the above said terrorist gang through co-accused Akraman (A-14), Sanjay Jain (A-9) and Ajay Kumar @ Ajay Singh (A-22) for smooth running of his business. Therefore, it would be difficult to hold that it does not prima facie appear
- 79 -
that A-18 criminally conspired with co-accused and committed offence under Section 120-B of the Indian Penal Code read with Section 17 of the U.A.(P) Act and substantive offences under Sections 17 and 18 of the U.A.(P) Act, Section 17 of the C.L.A. Act, 1908 and section 201 of the Indian Penal Code.
18. Whether on the basis of the aforesaid activities having been surfaced against the appellants, will it come under the fold of the ―terrorist act‖ as under Section 14 making the appellants liable for punishment as under Section 17 of the U.A.(P) Act or not, for which definition of ―terrorist act‖ vis-à- vis the provision of Section 15 and 17 is to be read out simultaneously. The ―terrorist act‖ has been defined under Section 2(k) which has the meaning assigned to Section 15 and the expression ―terrorism‖ and ―terrorist‖ shall be construed accordingly. Section 15 and 17 of the Act, 1967 and the aforesaid issue has already been dealt with in detail in the preceding paragraphs.
19. We have gone through the allegation as has been found against the appellants and find that prima facie sufficient material is there of raising funds for the TPC, a terrorist gang. It has also come in the charge-sheet that for smooth running of the business the money has been paid by the appellants to the TPC on the threat of disruption of any supply or services essential to the life of the community. One of the terrorist act
- 80 -
also includes disruption of any supplies or services essential to the life which has been alleged to be disrupted by the TPC, a terrorist gang to which the appellants have added by funding.
Further, the action of the appellants prima facie will also come under the fold of Section 17 since Section17 of the Act, 1967 provides that whoever, directly or indirectly provides funds to commit a terrorist act notwithstanding whether such funds were actually used or not, will also be punishable for commission of terrorist act.
In this regard, reliance has been placed to the case of State of Kerala v. Raneef [(2011) 1 SCC 784].
After going through the aforesaid judgment, we have found that the same pertains to denial of bail. The Hon'ble Apex Court found from the fact involved therein that there was no prima facie proof that the respondent was involved in the crime, rather prima facie only offence that can be leveled against the respondent is that under Section 202 IPC, that is, of omitting to give information of the crime to the police, and this offence has also to be proved beyond reasonable doubt. Section 202 being a bailable offence and further no evidence as yet to prove that PFI is a terrorist organisation, and hence the respondent cannot be penalised merely for belonging to PFI.
But the factual aspect involved in that case is quite
- 81 -
different to present one since TPC has been notified to be a terrorist association by virtue of gazette notification issued by the Department of Home, Government of Jharkhand dated 14.07.2006.
So far as the prima facie allegation against the appellants in the present case is concerned, we have already dealt with hereinabove by dealing with the allegations as contained under Clause 17.12, 17.13 and 17.10 respectively of the second supplementary charge-sheet. The materials have surfaced about raising of fund for the terrorist gang namely, TPC, and as such, it cannot be said at this stage that no prima facie material is available against the appellants and, therefore, the judgment rendered in the case of State of Kerala v. Raneef (Supra), in view of this Court, would not be applicable in the facts of this case.
In the case of Arup Bhuyan v. State of Assam [(2011) 3 SCC 377] it has been held that mere membership of a banned organization will not incriminate a person and so it is necessary to prove that he has indulged in some acts of violence.
In the said case the appellant before the Hon'ble Supreme Court was found to be a member of banned organization ULFA and it cannot be disputed that merely membership of a banned organization does not incriminate a person but here, in course of further investigation i.e. at
- 82 -
paragraph 17.12, 17.13 and 17.10 respectively of the second supplementary charge-sheet, material has been surfaced against the appellants to the effect that they have been found to be involved in raising funds for the terrorist gang TPC, and, therefore, it cannot be said that there is no prima facie case is available against the appellants.
Further, whether there is any intent or passive support to the terrorist gang or not that cannot be appreciated at this stage, rather the same is to be looked into at the time of trial or at least at the time of framing of charge.
In that view of the matter, we are of the view that it is not a case where the guideline laid down by Hon'ble Apex Court in the case of State of Haryana and Others v. Bhajan Lal and Others (Supra), Fakhruddin Ahmad v. State of Uttaranchal and Another (Supra) and Parbatbhai Aahir alias Parbatbhai Bhimsinbhai Karmur and Others v. State of Gujarat and Another (Supra) would be applicable as on the basis of the second supplementary charge-sheet, materials have come showing the prima facie complicity of the appellants. Hence, the argument advanced on behalf of the appellants on this issue is having no substance. Accordingly the issue has been answered.
20. Whether the issue of mens rea, vicarious liability or victim of extortion can be looked into at the stage of cognizance for quashing the order taking cognizance?
- 83 -
The mens rea is a state of mind. Under criminal law, mens rea is considered as the guilty intention and unless it is found that the accused had the guilty intention to commit the crime, he cannot be held guilty for committing the crime.
The argument has been advanced on behalf of the appellants that there was no mens rea and even if the money was financed to the TPC, if the intention of the appellants would be proved to be guilty, then only a criminal case can be instituted but according to the learned counsel, the question of mens rea has not been taken into consideration by the investigating agency as also by the court which has taken cognizance, based upon the said charge-sheet.
Learned counsel appearing for the NIA has submitted that guilty intention cannot be appreciated at this stage by the court i.e., at the stage of order taking cognizance, since the intention whether it was guilty or not is the subject matter of trial and to reach to a conclusion, the evidence has to be laid.
21. We have appreciated the argument advanced by the learned counsel for the parties in this regard and we find substance in the argument advanced on behalf of the learned counsel for the NIA as the intention whether it was guilty or not depends upon the appreciation of the factual aspect which will only come either at the stage of framing of charge by appreciating the documents or at the time of trial by
- 84 -
leading evidence in that regard.
So far as the vicarious liability is concerned, it is the case of the appellant Vinit Agarwal (A-20) that he has been implicated as an accused in the capacity of the Vice President of M/s. B K B Transport, appellant Amit Agarwal (A-21) has been implicated in the capacity of Proprietor of Shree Balaji Transport Limited whereas appellant Mahesh Agarwal (A-18) has been implicated in the capacity of Managing Director of M/s Adhunik Power and Natural Resources, Jharkhand but the companies having not been implicated, no criminal proceeding can be allowed to be continued.
So far as the argument of the appellants that the companies have not been implicated in the case so the entire criminal proceeding will vitiate, learned senior counsel for the NIA has submitted that the issue of vicarious liability can also not be looked into at the stage of cognizance since the same depends upon the factual aspect and the said aspect of the matter can only be appreciated either at the time of framing of charge or in course of trial.
22. This Court has appreciated the aforesaid argument and found substance in the argument advanced on behalf of the NIA because the vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency and further as would appear from the allegation leveled against the appellants the same is not upon the
- 85 -
companies, rather, it is the personal allegation upon the appellants and reference has been made about the Vice President of M/s. B K B Transport, Proprietor of Shree Balaji Transport Limited and Managing Director of M/s Adhunik Power and Natural Resources, Jharkhand.
Further, in the charge-sheet, the material has come against the appellants that they, in the individual capacity, paid or were instrumental in paying levy to the members of terrorist gang TPC including Akraman (A-14) which suggests that specific allegations have been leveled against the appellants and even if the issue of vicarious liability is being raised, the same will not be proper to be considered at this stage since the same depends upon the appreciation of factual aspect which cannot be done at the stage of cognizance.
The issue of extortion has also been raised by the appellants by raising the point that they were the victims of extortion and as such, they cannot be held criminally liable even if any money has been paid. According to the appellants, the funding has been done to the TPC in order to run the business smoothly.
On the other hand, learned senior counsel appearing for the NIA has submitted that even the issue of extortion cannot be adjudged at this stage as the same depends upon the factual aspect and can be decided upon appreciation of the
- 86 -
evidence led by the parties.
This Court has found substance in the argument advanced on behalf of the NIA as the issue of extortion or mens rea or vicarious liability are the factual aspects and the same can only be assessed by appreciating the evidence either documentary or oral and therefore, we are of the view that at this stage the issue of mens rea, vicarious liability or victim of extortion will not be proper to be looked into in absence of relevant documents.
At this juncture, learned senior counsel for the appellants, Mr. Cheema, referring to Section 21 of the National Investigation Agency Act, 2008, has submitted that the appellate court has the power to deal with the issue both on law and facts and according to him, the fact denotes the appreciation of fact for consideration of issue of mens rea, vicarious liability or issue of extortion. However, we are not impressed by such submission because appreciation of fact at this stage will not be proper to be considered and cannot be considered save and except which is available on record i.e., either in the charge-sheet or in the order taking cognizance and we, on the basis of the fact as has been brought on record by way of second supplementary charge- sheet, are of the view that the investigating agency has found prima facie allegation against the appellants treating it to be sufficient for framing of charges.
- 87 -
In this context the judgment rendered by the Hon'ble Apex Court in the case of Central Bureau of Investigation, Hyderabad v. K. Narayana Rao [(20121) 9 SCC 512] has been relied upon, more particularly, paragraph 24 thereof.
We have gone through paragraph 24 of the said judgment and found therefrom that the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both. In a matter of common experience direct evidence to prove conspiracy is rarely available.
In view thereof, the circumstances before and after the occurrence have to be considered to decide about the complicity of the accused. The factual aspect involved in the aforesaid case is regarding the duties of an Advocate rendering legal opinion and on that ground whether the Panel Advocate or bank can be implicated in the conspiracy on the basis of legal service given by him. But the factual aspect involved in this case is totally different as there is no fact about entering into an agreement, hence, the aforesaid judgment is not applicable.
Reliance has also been placed upon the judgment of the Hon'ble Apex Court in the case of Aneeta Hada v. Godfather Travels and Tours Private Limited [(2012) 5 SCC 661].
- 88 -
The said judgment was delivered on the facts pertaining to Negotiable Instrument Act holding about the criminal liability for dishonor of the cheque drawn by a company and whether the officers of the company may be implicated. In that circumstances, it has been laid down that it is mandatory requirement of impleading company as one of the accused.
It cannot be disputed that the issue pertaining to Negotiable Instrument Act is far far different to that of the Act pertaining to terrorist. The appellants by referring to the case of Aneeta Hada v. Godfather Travels and Tours Private Limited (Supra) is placing reliance upon the principle of vicarious liability but as would appear from the allegation surfaced against the appellants as under paragraph 17.12, 17.13 and 17.10 respectively of the second supplementary charge-sheet, the prima facie material is available against the appellants, however, the appellants have been shown to be the President, Proprietor and Managing Director of company and as such, whether the principle of vicarious liability will be applicable or not that is subject matter of trial.
In the case of Aneeta Hada v. Godfather Travels and Tours Private Limited (Supra) the cheques since were drawn by the company, in that circumstances it has been held making it mandatory to implead the company as an accused.
- 89 -
This issue is accordingly answered.
23. Whether order taking cognizance requires detailed reason and the order of cognizance impugned can be said to be without application of mind?
Argument has been advanced on behalf of the appellants that the order taking cognizance is without any application of mind since there is no reason expressed by the learned court below in taking cognizance against the appellants. It has been submitted that in absence of reason, the order taking cognizance will be considered to be bad in law.
In support of his argument, reliance has been placed upon the judgment rendered by Hon'ble Apex Court in Sunil Bharti Mittal v. Central Bureau of Investigation [(2015) 4 SCC 609].
Mr. Banerjee, learned ASG appearing for the NIA has submitted that order taking cognizance is well reasoned and after due application of mind. According to him, learned court below has appreciated the content of the second supplementary charge-sheet and on its perusal and as also on perusal of the case diary took cognizance, therefore, it cannot be said that the order taking cognizance is bad in the eye of law due to non-application of mind.
We have heard learned counsel for the parties on this issue. In order to answer the issue, it would be relevant to
- 90 -
discuss about the expression ―cognizance‖. The expression ―cognizance‖ as has been provided in Sections 190 and 204 of the Code of Criminal Procedure is entirely a different thing from initiation of proceedings. It is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code of Criminal Procedure, it is the application of judicial mind to the averments in the complaint that constitute cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding or not; whether there is sufficient ground for conviction; whether the evidence is adequate for supporting the conviction can be determined only at the stage of trial. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code of Criminal Procedure.
The Hon'ble Apex Court in Bhushan Kumar and Another v. State (NCT of Delhi) and Another [(2012) 5 SCC 424], relying upon the judgment rendered in Smt Nagawwa v. Veeranna Shivalingappa Konjalgi and Others [(1976) 3 SCC 736] has been pleased to hold that it is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case. It was further held that the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in
- 91 -
the evidence led by the complainant in support of the allegations. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him.
In the case of State of Gujarat v. Afroz Mohammed Hasanfatta [2019 SCC OnLine SC 132], the Hon'ble Apex Court on the issue of assigning the detailed reason has been pleased to observe at paragraphs 15 and 25 which read hereunder as :-
―15. It is well-settled that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and the Magistrate is only to be satisfied that there are sufficient grounds for proceeding against the accused. It is fairly well-settled that when issuing summons, the Magistrate need not explicitly state the reasons for his satisfaction that there are sufficient grounds for proceeding against the accused. Reliance was placed upon Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424 wherein it was held as under:--
―11. In Chief Enforcement Officer v. Videocon International Ltd., (2008) 2 SCC 492 (SCC p. 499, para 19) the expression ―cognizance‖ was explained by this Court as ―it merely means ‗become aware of' and when used with reference to a court or a Judge, it connotes ‗to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.‖ It is entirely a different thing from initiation of proceedings; rather it is the
- 92 -
condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code.
12. A ―summons‖ is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in court. A person who is summoned is legally bound to appear before the court on the given date and time. Wilful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court.
13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued.
This section mandates the Magistrate to form an opinion as to whether there exists a sufficient
- 93 -
ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued.‖
25. In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190(1)(b) Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge
- 94 -
sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file. In the present case, cognizance of the offence has been taken by taking into consideration the charge sheet filed by the police for the offence under Sections 420, 465, 467, 468, 471, 477A and 120B IPC, the order for issuance of process without explicitly recording reasons for its satisfaction for issue of process does not suffer from any illegality.‖ Much emphasis has been given by learned senior counsel appearing for the appellants to the case of Sunil Bharti Mittal v. Central Bureau of Investigation (Supra) that before taking cognizance the application of mind is necessary and the application of mind would only come if the reason would be assigned in the impugned order.
We have gone across the impugned order dated 13.01.2020, the order taking cognizance, and thought it proper to reflect herein for ready reference :-
―13.01.20 Accused persons Ajit Kumar Thakur, Prem Vikas @ Mantu Singh, Sudesh Kedia and Ajay Kumar @ Ajay Singh have been produced from jail custody through video conferencing in e-courts from Jail.
Learned Spl. P.P. is present.
2nd Supplementary Cahrge sheet no. 32-A/2018 dated 10.01.20 submitted on behalf of C.I.O.-cum-DY. SP, NIA, Camp office, Ranchi against accused persons namely
1) Mahesh Agarwal (A-18) for U/s 120B of I.P.C. r/w section 17 of the UA(P) Act, 1967, substantive offences under sections 17 and 18 of the UA(P) Act, 1967, section 17 of the CLA Act, 1908 and section 201 of I.P.C. 2) Sudesh Kedia (A-19) for U/s 120B of IPC r/w section 17 of the UA(P) Act, 1967, substantive offences under sections 17, 18 and 21 of the UA(P) Act, 1967, and section 17 of the CLA Act, 1908. 3) Vinit Agarwal (A-20) for U/s 120B of I.P.C.
- 95 -
r/w section 17 of the UA(P) Act, 1967, substantive offences under sections 17 and 18 of the UA(P) Act, 1967, section 17 of the CLA Act, 1908 and section 201 of I.P.C. 4) Sonu Agarwal (A-21) for U/s 120B of IPC r/w section 17 of the UA(P) Act, 1967, substantive offences under sections 17, 18 and 21 of the UA(P) Act, 1967, and section 17 of the CLA Act, 1908. 5) Ajay Kumar @ Ajay Singh (A-22) for U/s 120B of IPC r/w sections 384 of I.P.C., section 17 of the UA(P) Act, 1967, substantive offences under sections 17, 18 of the UA(P) Act, 1967, and section 17 of the CLA Act, 1908.
Heard, learned Spl. P.P. NIA for the prosecution. Perused the case diary. It appears that Prima facie case is made out against the each accused persons mentioned above. Accordingly Cognizance is being taken against the accused persons as follows :-
1) Mahesh Agarwal (A-18) for U/s 120B of I.P.C. r/w section 17 of the UA(P) Act, 1967, substantive offences under sections 17 and 18 of the UA(P) Act, 1967, section 17 of the CLA Act, 1908 and section 201 of I.P.C. 2) Sudesh Kedia (A-19) for U/s 120B of IPC r/w sections 17 of the UA(P) Act, 1967, substantive offences under sections 17, 18 and 21 of the UA(P) Act, 1967, and section 17 of the CLA Act, 1908. 3) Vinit Agarwal (A-20) for U/s 120B of I.P.C.
r/w section 17 of the UA(P) Act, 1967, substantive offences under sections 17 and 18 of the UA(P) Act, 1967, section 17 of the CLA Act, 1908 and section 201 of I.P.C. 4) Sonu Agarwal (A-21) for U/s 120B of IPC r/w section 17 of the UA(P) Act, 1967, substantive offences under sections 17, 18 and 21 of the UA(P) Act, 1967, and section 17 of the CLA Act, 1908. 5) Ajay Kumar @ Ajay Singh (A-22) for U/s 120B of IPC r/w sections 384 of I.P.C., section 17 of the UA(P) Act, 1967, substantive offences under sections 17, 18 of the UA(P) Act, 1967, and section 17 of the CLA Act, 1908.
Put up on date fixed i.e. 18.02.20 for supply of police paper.‖ It transpires from the order dated 13.01.2020 that the second supplementary charge-sheet No. 32-A/2018 dated 10.01.2020 was submitted before the learned Special Judge. It further transpires that the petition filed for taking cognizance by the investigating agency has been heard
- 96 -
through learned Special P.P., NIA. The case diary has been perused and thereafter it found to the learned Special Judge that prima facie case is made out against the accused persons including the appellants.
As would appear from the judgment rendered by the Hon'ble Apex Court in the case of State of Gujarat v. Afroz Mohammed Hasanfatta (Supra) wherein at paragraph 25 it has been held that the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet is filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190(1)(b) Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for
- 97 -
issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused.
In Bhushan Kumar and Another v. State (NCT of Delhi) and Another (Supra) the provision of Section 204 of the Code of Criminal Procedure has been considered which mandates for issuance of summons for calling upon any person before a Magistrate. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued.
The Hon'ble Apex Court in the case of Sunil Bharti Mittal v. Central Bureau of Investigation (Supra), however, has laid down the ratio that for taking cognizance
- 98 -
under Section 190 of the Code of Criminal Procedure, the application of mind by the Magistrate is sine qua non and by putting reliance upon the said judgment the order taking cognizance has been sought to be quashed.
It is settled position of law that each and every judgment is to be considered on the basis of the fact involved in the said case as has been laid down in the case of Dr. Subramanian Swamy v. State of Tamil Nadu and Others [(2014) 5 SCC 75] at paragraph 47 which is quoted hereunder :-
―47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. ―The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.‖‖ We have gone across the factual aspect of the judgment rendered by Hon'ble Apex Court in the case of Sunil Bharti Mittal v. Central Bureau of Investigation (Supra). It transpires from the fact of the said case that a case was instituted for the offences punishable under Section 120-B IPC r/w Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 (for short ―the PC Act‖). It was against Mr. Shyamal Ghosh, Mr. J.R. Gupta and the three cellular companies. Investigation started and charge-sheet filed. Mr.
- 99 -
J.R. Gupta was not made accused as no material of any conspiracy or being a part of the decision is attributed to him. In the charge-sheet, CBI named Mr. Shyamal Ghosh and the aforesaid three companies, namely, M/s Bharti Cellular Ltd., M/s Hutchison Max Telecom (P) Ltd. and M/s Sterling Cellular Ltd. as the accused persons in respect of offences under Section 13(2) read with Section 13(1)(d) of the PC Act and allied offences. The learned Special Judge on 19.03.2013 passed orders recording his satisfaction to the effect that there was enough incriminating material on record to proceed against the accused persons. At the same time, the learned Special Judge also found that Mr. Sunil Bharti Mittal was Chairman-cum-Managing Director of Bharti Cellular Ltd., Mr. Asim Ghosh was Managing Director of Hutchison Max Telecom (P) Ltd. and Mr. Ravi Ruia was a Director in Sterling Cellular Ltd., who used to chair the meetings of its Board. According to him, in that capacity, these persons, prima facie, could be treated as controlling the affairs of the respective companies and represent the directing mind and will of each company. They were, thus, ―alter ego‖ of their respective companies and the acts of the companies could be attributed and imputed to them. On this premise, the Special Judge felt that there was enough material on record to proceed against these three persons as well. Thus, while taking cognizance of the case, he decided to issue summons not only to the four
- 100 -
accused named in the charge-sheet but the aforesaid three persons as well. In that backdrop the matter came before the Hon'ble Apex Court and the Hon'ble Apex Court has quashed and set aside the order taking cognizance and issuance of summons holding therein that the proper application of mind is required by the Magistrate. Therefore, the fact involved in the said case was that no final form was submitted against Mr. Sunil Bharti Mittal, Mr. Asim Ghosh and Mr. Ravi Ruia but even then cognizance was taken and summons were issued against them and in that pretext the plea has been raised that when the police has not found any involvement of these three persons on what basis Special Judge took cognizance against them. The Hon'ble Apex Court, in such circumstances, has laid down that reason is to be assigned by the concerned Magistrate/Judge in taking cognizance as to what led him to take cognizance against the accused persons who have not been found to be sent up for trial, meaning thereby, there is no embargo upon the Magistrate or the Judge not to take cognizance against the person who has not been sent up for trial in the police report but the prerequisite condition for cognizance is that sufficient reasons has to be assigned by the court.
But the fact herein is that the police has found complicity of the appellants on the basis of sufficient material surfaced in course of investigation and, therefore, charge-
- 101 -
sheet has been submitted.
It is evident from order taking cognizance that the learned Special Judge has heard the matter. Hearing of the matter means that the learned Special P.P. has perused the second supplementary charge-sheet as also the case diary and that is the reason the learned Special Judge has recorded in the impugned order that heard and perused the case diary. ‗Perusal' means an activity of court below of carefully reading, poring over or studying something with the intent of remembering it. Thus, the meaning of ‗perusal' denotes that careful and critical scrutiny of the material placed before the court and on consideration when it has been found to the learned Special Judge that prima facie material is available for taking cognizance and for issuance of process as also for commencing trial against the accused persons, cognizance has been taken against the appellants.
In that view of the matter, on placing reliance upon the judgment rendered in the case of State of Gujarat v. Afroz Mohammed Hasanfatta (Supra) we are of the view that no detailed reason is required, rather, from perusal of the impugned order it appears that the judicial mind of the learned Special Judge is there and on appreciation of the second supplementary charge-sheet as also the case diary, cognizance has been taken.
Accordingly, we are of the view that the order taking
- 102 -
cognizance cannot be said to be without any reason or without application of mind.
This issue is answered accordingly.
24. Whether it is a fit case where the matter may be remitted before the learned Special Judge for taking cognizance afresh?
Learned senior counsel appearing for the appellants has submitted that the order is non-speaking and without any application of mind as such, the same may be remitted before the learned Special Judge for passing order afresh.
While on the other hand, learned senior counsel appearing for the NIA, by referring the allegation leveled against the appellants as under paragraph 17.12, 17.13 and 17.10 respectively of the second supplementary charge-sheet as also the appended documents under the list of cited documents, has submitted that the learned Special Judge, after going through the case diary, second supplementary charge-sheet and on hearing learned Spl. P.P. has taken cognizance, hence it is not a fit case to remit the matter before the learned Special Judge for passing a fresh order.
We have heard the learned counsel for the parties on this issue.
In the facts of this case, more particularly, the allegation as has been surfaced against the appellants as under para 17.12, 17.13 and 17.10 respectively of the second
- 103 -
supplementary charge-sheet along with the appended documents showing prima facie complicity of the appellants and learned Special Judge, after going through the case diary and after hearing the learned Spl. P.P. and on perusal of second supplementary charge-sheet, has taken cognizance.
The matter could be remanded if on the face of the second supplementary charge-sheet no complicity of the appellant would have been found but the complicity of the appellant has been found in the second supplementary charge-sheet and hence, if the matter would be remitted before the learned Special Judge for passing a fresh order, the same will be futile exercise since again the same order would be passed by recording the allegation leveled against the appellants as referred at paragraphs 17.12, 17.13 and 17.10 respectively of the second supplementary charge-sheet.
In that view of the matter, it is not a fit case to remand the issue before the learned Special Judge for passing a fresh order.
Accordingly, this issue is answered.
25. Whether the order of sanction dated 27.12.2019 is valid?
It has been argued by the learned counsel for the appellants that the order of sanction is without any application of mind. It has been submitted that the Central Government has not made an independent reviews of the
- 104 -
evidence extracted in course of investigation and without doing so, has accorded the sanction.
While on the other hand, Mr. Vikramjit Banerjee, learned senior counsel appearing for the NIA has submitted that the order of sanction does not suffer from any infirmity, rather the Central Government has applied its mind carefully and thereafter the sanction has been accorded for initiation of prosecution against the appellants.
We have appreciated the aforesaid argument and before answering the issue deem it fit and proper to refer Section 45 of the Act, 1967 which reads as under :-
45. Cognizance of offences.--(1) No court shall take cognizance of any offence--
(i) under Chapter III without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf;
(ii) under Chapter IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and where such offence is committed against the Government of a foreign country without the previous sanction of the Central Government.
(2) Sanction for prosecution under sub-section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation, within such time as may be prescribed, to the Central Government or, as the case may be, the State Government.
- 105 -
It is evident from the provision of Section 45 of the Act, 1967 that no court shall take cognizance of any offence without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf. Sub-Section (2) thereof provides that sanction for prosecution under sub-section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation, within such time as may be prescribed, to the Central Government or, as the case may be, the State Government.
The order of sanction dated 27.12.2019 is also required to be referred herein which reads as under :-
―No. 11011/08/2018/NIA Government of India Ministry of Home Affairs CTCR Division **** North Block, New Delhi Dated, the 27 December, 2019 //ORDER// Whereas, the Central Government had received information regarding registration of a case FIR No.02/2016 dated 11.01.2016 at Tandwa PS, District Chatra, Jharkhand u/s 414, 384, 386, 387, 120B of the Indian Penal Code, sections 25(1-b)(a), 26, 35 of Arms Act and section 17(1)(2) of Criminal Law Amendment Act relating to incidents of extortion/levy collection/money laundering by the Maoist cadres in the LWE affected States like Jharkhand and Bihar;
- 106 -
2. And whereas, sections 16, 17, 20, 23 of the Unlawful Activities (Prevention) Act, 1967 were added later during the course of investigation;
3. And whereas, keeping in view that a Scheduled Offence under the NIA Act, 2008 has been committed and the gravity of the offence, the case was entrusted to NIA for investigation vide order dated 13th February, 2018 and the NIA registered the same as RC-
06/2018/NIA/DLI dated 16.02.2018 under sections 414, 384, 386, 387, 120B of the Indian Penal Code, sections 25(1-b)(a), 26, 35 of Arms Act and section 17(1)(2) of Criminal Law Amendment Act and sections 16, 17, 20, 23 of the Unlawful Activities (Prevention) Act, 1967;
4. And whereas, chargesheet was filed against 16 accused persons on 21.12.2018;
5. And whereas, the NIA, vide its letter dated 17th December, 2019 has recommended for prosecution of the below mentioned accused persons for sections of law mentioned against their names and has sought sanction of the Central Government under section 45(1) of the Unlawful Activities (Prevention) Act, 1967:-
Accused Name of Accused Sections of Law
A-18 Mahesh Agarwal son of Late Section 201 of Indian Penal
Mahadeo Prasad Agarwal, Code.
present resident of Adhunik Section 17 & 18 of Unlawful
Power and Natural Resources Activities (Prevention) Act, 1967.
Ltd. Jail Church Complex, main Section 17 of Criminal Law
road, Ranchi (Jharkhand), Amendment Act, 1908.
permanent resident of BA 209,
Salt Lake City, Kolkata-64
A-19 Sudesh Kedia son of Late Section 17, 18 & 21 of
Gauri Shankar Kedia, resident Unlawful Activities (Prevention)
of Kedia House near Hanuman Act, 1967.
Temple, Ratu Road, Ranchi, Section 17 of Criminal Law
Jharkhand. Amendment Act, 1908.
A-20 Vinit Agarwal son of Binod Section 201 of Indian Penal
Agarwal, resident of adjacent of Code
Maa SBI Tower, Harihar Road, Section 17 & 18 of Unlawful
Bariyatu, Ranchi, Jharkhand. Activities (Prevention) Act, 1967.
Section 17 of Criminal Law
Amendment Act, 1908.
A-21 Amit Agarwal @ Sonu Agarwal, Section 17, 18 & 21 of
son of Shyam Sunder Agarwal, Unlawful Activities (Prevention)
resident of Flat No.B-77, Kabi Act, 1967.
Kandan Munundram Sarani, Section 17 of Criminal Law
Sector 2A, Bidhan Nagar, Amendment Act, 1908.
Durgapur, West Bangal-12.
A-22 Ajay Kumar @ Ajay Singh son Section 17 & 18 of Unlawful
of Shri Ram Janeshwar Singh, Activities (Prevention) Act, 1967.
resident of Qtr No.SCS B-3/10, Section 17 of Criminal Law
Central School, Surda, PO- Amendment Act, 1908.
Surda Mines, PS Mushabani,
- 107 -
District-Singhbhum (East)
Jharkhand, permanent resident
of village-Tankupi, PO Dumara,
PS Haspura, District
Aurangabad, Bihar
6. and whereas, the Central Government in terms of the provisions of section 45(2) of the Unlawful Activities (Prevention) Act, 1967 (as amended) and the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 referred the above mentioned Investigation Report vide this Ministry's letter of even number dated 18th December, 2019 to the Authority comprising of two members namely Justice Dr. Satish Chandra (Retired) and Dr. T.K.Vishwanathan, Law Secretary (Retired), constituted vide this Ministry's order No. 11034/1/2009/IS-IV dated 03.07.2015 for making an independent review of the evidence gathered in the course of investigation (term of the Authority extended till 31.07.2020 vide this Ministry's order dated 17.06.2019);
7. And whereas, the Authority vide letter dated 20th December, 2019 forwarded its report to this Ministry within the time limit as prescribed in rule 3 of the Unlawful Activities (Prevention) (Recommendation & Sanction of Prosecution) Rules, 2008, and, after being satisfied with the material available on record and facts and circumstances therein, recommended for sanction for prosecution against the above mentioned accused persons under the relevant sections of law including the Unlawful Actitivies (Prevention) Act, 1967;
8. And now therefore, the Central Government, after carefully examining the material placed on record and the recommendations of the Authority, is satisfied that a prima facie case is made out against the accused persons under the relevant sections of law and hereby accords sanction for prosecution under section 45(1) of the Unlawful Activities (Prevention) Act, 1967 for prosecuting following accused persons in the Crime No. RC-06/2018/NIA/DLI of NIA for taking cognizance of the said offence by a court of competent jurisdiction as under :-
Accused Name of Accused Sections of Law for which sanction for prosecution is accorded A-18 Mahesh Agarwal son of Late Section 17 & 18 of Unlawful Mahadeo Prasad Agarwal Activities (Prevention) Act, 1967. A-19 Sudesh Kedia son of Late Section 17, 18 & 21 of Gauri Shankar Kedia Unlawful Activities (Prevention) Act, 1967.
A-20 Vinit Agarwal son of Binod Section 17 & 18 of Unlawful Agarwal Activities (Prevention) Act, 1967. A-21 Amit Agarwal @ Sonu Agarwal, Section 17, 18 & 21 of
- 108 -
son of Shyam Sunder Agarwal Unlawful Activities (Prevention) Act, 1967.
A-22 Ajay Kumar @ Ajay Singh son Section 17 & 18 of Unlawful of Shri Ram Janeshwar Singh Activities (Prevention) Act, 1967.
BY ORDER AND IN THE NAME OF THE PRESIDENT OF INDIA Sd/-
(Vijay Kumar Upadhyay) Under Secretary to the Government of India‖ It is evident from the order dated 27.12.2019 that the NIA vide its letter dated 17.12.2019 has recommended for prosecution of the accused persons for Sections of law mentioned against their names and has sought sanction of the Central Government under Section 45(1) of the Act, 1967. The Central Government, in terms of the provision of Section 45(2) of the Act, 1967 and the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 referred the above mentioned investigation report to the authority comprising of two members namely Justice Dr. Satish Chandra (Retired) and Dr. T.K.Vishwanathan, Law Secretary (Retired) constituted for making an independent review of the evidence gathered in course of investigation. The authority vide letter dated 20.12.2019 forwarded its report to the Ministry and after being satisfied that the material available on record and facts and circumstances therein, recommended for sanction for prosecution and thereafter the same has carefully been examined by the Central Government and after being satisfied that prima facie case is made out, the Central Government has accorded sanction
- 109 -
under Section 45(1) of the Act, 1967.
The requirement of law under Section 45 of the Act, 1967 that an independent review of the evidence gathered in course of investigation is to be made and after taking into consideration the report of the review and the recommendation, the sanction is to be accorded by the Central Government. Herein, on being reported by the investigating agency along with the evidences collected in course of investigation against the appellants, the same was forwarded before a committee constituted by the Central Government consisting of two members, namely, Justice Dr. Satish Chandra (Retired) and Dr. T.K.Vishwanathan, Law Secretary (Retired) for an independent review of the evidences gathered in course of investigation. The said committee has forwarded its report along with its recommendation for sanction. The Central Government, thereafter, has carefully examined the material placed on record and the recommendation of the authority and on being satisfied prima facie has accorded the sanction under Section 45(1) of the Act, 1967.
26. In view thereof, we are of the view that the order of sanction is in consonance with the provision of Section 45(2) of the Act, 1967 and hence, the argument advanced on behalf of the appellants raising the infirmity in the order of sanction is having no substance. Accordingly the same is being
- 110 -
rejected.
Hence, this issue is also answered against the appellants.
27. Before closing the matter, it requires to refer herein about the applicability of the judgment rendered by Hon'ble Apex Court in Criminal Appeal Nos. 314 - 315 of 2021 [Sudesh Kedia v. Union of India] upon which heavy reliance has been placed by the learned counsel appearing for the appellants.
28. It has been submitted on behalf of the appellants by referring to paragraph 11 of the aforesaid judgment wherein a finding has been recorded to the effect that payment of extortion money does not amount to terror funding as also further observation that the Hon'ble Apex Court is not satisfied in the given fact that a case of conspiracy has been made out at this stage only on the ground that the appellant met the members of the organization and further, accepting an amount of Rs.9,95,000/- was seized from the house of the appellant which was accounted for by the appellant who stated that the amount was withdrawn from the bank to pay salaries to the employees and other expenses. Considering that aspect of the matter, the Hon'ble Apex Court has not agreed with the prosecution and as such, it has been observed that at this stage, it cannot be said that the amount seized from the appellant is proceed from terrorist activity
- 111 -
since there was no allegation that appellant was receiving any money, while on the other hand, the appellants are accused of providing money to the members of TPC.
In view of such observation, learned counsel appearing for the appellants has submitted that such observation exactly pertains to the same FIR and charge-sheet which is the subject matter of the instant appeals and since there is an observation made by the Hon'ble Supreme Court that merely payment of extortion money does not amount to terror funding and the other evidence of conspiracy has also been said to have no allegation and even the money recovered has not been connected with the amount of terror funding and, therefore, the appellants herein also deserves to be declared having committed no offence of terror funding since herein also allegation against the appellants is that they are subjected to extortion.
29. While on the other hand, learned counsel appearing for the NIA, has relied upon paragraph 12 of the aforesaid judgment wherein it has been observed by Hon'ble Apex Court to the effect ―we make it clear that these findings are restricted only for the purpose of grant of bail to the appellant and the trial court shall not be influenced by these observations during trial‖ and, therefore, since herein it is not a case of grant of bail by taking into consideration the provision of Section 43D(5) of the Act, 1967, rather it is a
- 112 -
case of quashing of order taking cognizance and, therefore, in the given fact and the stage, the aforesaid judgment is not applicable.
30. We have considered the aforesaid submissions and before answering the issue about applicability of the aforesaid judgment in the case at hand, we deem it fit and proper to go across the aforesaid judgment which has been passed looking into the legality and propriety of the order passed by the Co-ordinate Division Bench of this Court whereby and whereunder a Bench of this Court vide order dated 24.06.2020 dismissed the criminal appeal upholding the order dated 14.02.2020 by which the application filed for grant of bail was dismissed by the Judicial Commissioner- cum-Special Judge, NIA, Ranchi. The case at hand also pertains to same FIR and charge-sheet.
For better appreciation, relevant passages from the aforesaid judgment of Hon'ble Apex Court are quoted hereunder:-
―9. Section 43-D (5) mandates that a person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true. Apart from the other offences, the Appellant is accused of committing offences under Section 17, 18 and 21 of the UA (P) Act. The Appellant is accused of providing funds to a terrorist organization. According to the prosecution, he has entered into a conspiracy with the other members of the organization to strengthen and promote the activities of the organization. Further, an amount of Rs.
- 113 -
9,95,000/- (Rupees Nine Lakh and Ninety-Five Thousand only) was seized from the Appellant's house, making him liable for punishable under Section 21 of the Act.
10. In National Investigation Agency v. Zahoor Ahmad Shah Watali (supra), this Court considered the parameters for exercise of the power under Section 43 (5) D, held as follows:
―23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is ―not guilty‖ of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is ―not guilty‖ of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is ―prima facie‖ true. By its very nature, the expression ―prima facie true‖ would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated
- 114 -
offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is ―prima facie true‖, as compared to the opinion of the accused ―not guilty‖ of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act....‖
11. While considering the grant of bail under Section 43 (5) D, it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not. We have gone through the material on record and are satisfied that the Appellant is entitled for bail and that the Special Court and High Court erred in not granting bail to the Appellant for the following reasons:
(A) A close scrutiny of the material placed before the Court would clearly shows that the main accusation against the Appellant is that he paid levy / extortion amount to the terrorist organization. Payment of extortion money does not amount to terror funding. It is clear from the supplementary charge-sheet and the other material on record that other accused who are members of the terrorist organization have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas.
The Appellant is carrying on transport business in the area of operation of the organization. It is alleged in the second supplementary chargesheet that the Appellant paid money to the members of
- 115 -
the TPC for smooth running of his business. Prima facie, it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the organization. (B) Another factor taken into account by the Special Court and the High Court relates to the allegation of the Appellant meeting the members of the terror organization. It has been held by the High Court that the Appellant has been in constant touch with the other accused. The Appellant has revealed in his statement recorded under Section 164 Cr.PC that he was summoned to meet A-14 and the other members of the organization in connection with the payments made by him. Prima facie, we are not satisfied that a case of conspiracy has been made out at this stage only on the ground that the Appellant met the members of the organization.
(C) An amount of Rs. 9,95,000/- (Rupees Nine Lakh and Ninety-Five Thousand only) was seized from the house of the Appellant which was accounted for by the Appellant who stated that the amount was withdrawn from the bank to pay salaries to his employees and other expenses. We do not agree with the prosecution that the amount is terror fund. At this stage, it cannot be said that the amount seized from the Appellant is proceeds from terrorist activity. There is no allegation that Appellant was receiving any money. On the other hand, the Appellant is accused of providing money to the members of TPC.
12. After a detailed examination of the contentions of the parties and scrutiny of the material on record, we are not satisfied that a prima facie case has been made out against the Appellant relating to the offences alleged against him. We make it clear that these findings are restricted only for the purpose of grant of bail to the Appellant and the trial court
- 116 -
shall not be influenced by these observations during trial.‖ (emphasis supplied) The appellant before Hon'ble Apex Court, namely, Sudesh Kedia, had given statement under Section 164 of the Cr.P.C. that Subhan Mian contacted him and demanded money for the smooth functioning of his business of transport company i.e., M/s. ESSKAY Concast and Minerals Private Limited. He further stated that he had a meeting with A-5, A- 10, A-11 and A-14. There was constant demand of payment of levy. He admitted payment of huge amount of money.
The National Investigation Agency submitted a supplementary charge-sheet against A-1 to A-15 on 21.12.2018 in which the modus operandi of collection of levy from contractors, traders, transporters etc. was surfaced. On further investigation, a second supplementary charge-sheet was filed on 10.01.2020 in which the appellant was shown as A-19. According to the supplementary charge-sheet, the appellant is engaged in transportation of coal on behalf of GVK Power and Godavari Commodities. He had attended meeting with TPC Leaders and had paid levy to the TPC leader Akraman (A-14), CCL employees and Village Committee Members from his current account.
The aforesaid accused, appellant, had filed bail application before the Judicial Commissioner-cum-Special Judge, NIA, Ranchi but the same was dismissed, which order
- 117 -
has been affirmed by the Co-ordinate Division Bench of this Court, against which appeal was filed before the Hon'ble Apex Court. The Hon'ble Apex Court has considered the provision as contained under Section 43D(5) of the Act, 1967 which mandates that the person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true.
That Hon'ble Apex Court has further considered the judgment rendered by Hon'ble Apex Court in National Investigation Agency v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1] wherein the power under Section 43D(5) has been considered and it has been held :-
―23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is ―not guilty‖ of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is ―not guilty‖ of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is ―prima facie‖ true. By its very nature, the expression ―prima facie true‖ would mean that the
- 118 -
materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is ―prima facie true‖, as compared to the opinion of the accused ―not guilty‖ of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act....‖ It is, thus, evident that the Hon'ble Apex Court has considered primarily in the appeal filed by accused, namely, Sudesh Kedia, the provision of Section 43D(5) and while considering the grant of bail under Section 43D(5), it has been observed that it is the bounden duty of the Court to apply its mind to examine the entire materials on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not.
Thus, it is evident that the case upon which reliance has been placed by the learned counsel for the appellants strictly pertains to the provision of Section 43D(5) of the Act, 1967 which casts duty upon the Court to be satisfied that there are reasonable ground(s) for believing that the accusation against
- 119 -
the accused is prima facie true or otherwise.
31. It further requires to refer herein the judgment rendered by Hon'ble Supreme Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Another [(2005) 5 SCC 294] wherein three Judges Bench of Hon'ble Supreme Court has called upon to consider the scope of power of the Court to grant bail and while considering, the Hon'ble Supreme Court at paragraphs 36 to 38 has observed thus -
"36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the court to record such a finding? Would there be any machinery available to the court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?
37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on record only for grant of bail and for no other purpose.
38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Penal Code, 1860 may debar the court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time
- 120 -
of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision.‖ Further, at paragraph 24 of the judgment in National Investigation Agency v. Zahoor Ahmad Shah Watali (Supra), it has been held by Hon'ble Supreme Court which reads as hereunder :-
"24. A priori, the exercise to be undertaken by the Court at this stage--of giving reasons for grant or non- grant of bail--is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.‖ Thus, it is evident that the findings regarding the offence found to be prima facie true are required to be recorded only for the purpose of arriving at an objective finding for grant of bail and for no other purpose and after taking into consideration the aforesaid proposition of law, the Hon'ble Supreme Court in the Zahoor Ahmad Shah Watali's Case at paragraph 24 has been pleased to observe that a priori, the exercise to be undertaken by the Court at this stage--of
- 121 -
giving reasons for grant or non-grant of bail--is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.
The argument has been advanced on behalf of learned counsel for the appellants that the observation made by Hon'ble Apex Court in Sudesh Kedia v. Union of India (Supra) although under the provision of Section 43D(5) of the Act, 1967 can be considered even at the time of scrutinizing the legality and propriety of the order taking cognizance but we are not impressed with such argument taking into consideration the clarification made by Hon'ble Apex Court at paragraph 12 that whatever observation has been made are restricted only for the purpose of grant of bail as would be evident from paragraph 36 of the judgment rendered in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Another (Supra) and paragraph 24 of the judgment rendered in National Investigation Agency v.
Zahoor Ahmad Shah Watali (Supra). Since therein observation has been made that the duty as has been cast upon the court in view of the provisions of Section 43D(5) of the Act, 1967 is only at the stage as would be evident from
- 122 -
paragraph 24 of the Watali's case, meaning thereby, the same has to be taken into consideration only for the purpose of grant of bail.
The further contention that when the Hon'ble Supreme Court has come to a conclusive finding about the allegation of terror funding which has been casted upon Sudesh Kedia, the appellant before the Hon'ble Supreme Court, basis upon which he has been granted bail, therefore, there is no reason not to consider the aforesaid finding at the time of consideration of legality and propriety of the order taking cognizance, this argument is not acceptable to us for the reason that if that would have been the intention of the Hon'ble Supreme Court, the observation would not have been made at paragraph 12 of the judgment in Sudesh Kedia v. Union of India (Supra).
We are not considering the bail application by taking into consideration the provision of Section 43D(5) of the Act, 1967, rather the case is for quashing the order taking cognizance and, therefore, according to our considered view, in the given facts of this case and the prayer made in the instant appeal which is for quashing of the order taking cognizance, the order passed by the Hon'ble Apex Court in the case of Sudesh Kedia v. Union of India (Supra) will not be applicable in view of the observation made in paragraph no.12 thereof. The Hon'ble Apex Court in paragraph 12 of the
- 123 -
aforesaid judgment has made it clear that these findings are restricted only for the purpose of grant of bail to the Appellant and the trial court shall not be influenced by these observations during trial.
32. Thus, it is further evident that what we have observed hereinabove, the same is also fortified by the observation made by Hon'ble Apex Court in paragraph 12 of the aforesaid judgment to the extent that the applicability of the said judgment would stand restricted only for the purpose of grant of bail and, therefore, the judgment, in the given facts of the case, would not be applicable in the case in hand.
33. This Court, after having answered the issues as above, is of the view that no good ground could be raised by the appellants for interference by this Court at this stage in the order taking cognizance.
34. Accordingly, the appeals fail and are dismissed.
35. Before parting with the matter, we make it clear that ordinarily we would not have delved upon in such detail the materials collected during course of investigation which emanate out of different paragraphs of the Charge Sheet and have done close scrutiny and recorded findings but we were compelled to do so as almost all learned counsel appearing for the appellants have vehemently argued the fact of the case. The same also stands reflected from their respective written notes on submissions. In fact they, by doing so,
- 124 -
invited our findings on fact. However, we make it clear that the findings are restricted only for the purpose of dealing with the matter of cognizance and the trial court shall not be influenced by these observations or findings recorded in the present judgment either at time of framing of charges or during trial.
36. The interim orders dated 03.02.2020 and 10.02.2020 stand vacated.
37. In consequence of dismissal of these appeals, pending interlocutory application(s), if any, also stands disposed of.
(Dr. Ravi Ranjan, C.J.) I agree (Sujit Narayan Prasad, J.) (Sujit Narayan Prasad, J.) Birendra/ A.F.R.