Karnataka High Court
Asim Shariff vs National Investigation Agency on 22 November, 2018
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
W.P. No.13891/2018 (GM-RES)
BETWEEN:
ASIM SHARIFF
S/O LATE ANWAR SHARIFF,
AGED ABOUT 40 YEARS,
R/AT NO. 6/1, 1ST MAIN,
S.K. GARDEN, BENSON TOWN POST,
BANGALORE-560 046,
REPRESENTING BY HIS
WIFE HALIMA BEE,
AGE ABOUT 32 YEARS,
W/O ASIM SHARIFF,
R/AT NO.6/1, 1ST MAIN,
S.K. GARDEN, BENSON TOWN POST,
BENGALURU - 560 046.
...PETITIONER
(BY SRI S. BALAKRISHNAN, ADVOCATE
FOR M/s.BALAN AND ASSOCIATES)
AND:
NATIONAL INVESTIGATION AGENCY,
REP. BY SPL PP,
HIGH COURT OF KARNATAKA,
BENGALURU-560 001.
...RESPONDENT
(BY SRI P. PRASANNA KUMAR, SPL. P.P.)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA R/W SEC. 482
OF CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED
02.01.2018 AT ANNEXURE-A IN SPL; C.C.No.181/2017
AGAINST THE PETITIONER PASSED BY THE HON'BLE XLIX
ADDITONAL CITY CIVIL AND SESSIONS JUDGE, (SPECIAL
COURT OF TRIAL OF NIA CASES) AT BENGALURU AND
DISCHARGE HIM FOR THE OFFENCES PUNISHABLE U/S
302, 201 R/W SEC. 34 OF IPC AND SECTION 3 AND 27 OF
ARMS ACT AND UNDER SECTION 15, 16, 17, 18 AND 20 OF
UNLAWFUL ACTIVITIES (PREVENTION) ACT 1967.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF ORDERS IN
PRINCIPAL BENCH, BENGALURU, ON 01.08.2018, COMING
UP FOR PRONOUNCEMENT OF ORDERS THIS DAY AT
DHARWAD BENCH THROUGH VIDEO CONFERENCE, THE
COURT MADE THE FOLLOWING:
ORDER
Initially, a criminal case came to be registered in Crime No.124/2016 on 16.10.2016 for the offences punishable u/S 302, 34 of IPC by Commercial Street Police over the murder of one Rudresh. The complaint was filed by one Jayaram, who is cited as a witness- C.W.1. It is stated in the first information that when C.W.1 along with his friends Rudresh, Harikrishna and Kumar assembled near Srinivas Medical Stores, Shivajinagar, one person (accused) being the pillion :3: rider of the motorcycle hacked Rudresh with a sharp edged and lethal machete on the right side of his neck and fled. Rudresh was taken in an auto to Bowring & Ladycurzon Hospital, Bengaluru, wherein he was declared "brought dead". Initially the case was registered in Crime No.124/2016 of Commercial Street Police against unknown persons for the offence punishable u/S 302, 34 of IPC. Four accused persons were arrested in connection with the crime. Subsequently, National Investigation Agency (for short 'NIA') registered first information in R.C. No.24/2016 including the petitioner-Asim Sharif, who is at Sl. No.5 in the list of the accused. The task of investigation was entrusted to NIA by the Union of India, Ministry of Home Affairs (Internal Security-1 Division), North Block, New Delhi, through its orders No. 11011/33/2016-IS-IV dated 07.12.2016 as per Sec. 6(5) r/w Sec. 8 of the National Investigation Act. In obedience to the said order the NIA, Hyderabad Branch, registered the case in :4: RC 04/16-NIA-HYD for the offences punishable u/S 120-B, 109, 150, 153A, 302, 201 r/w Sec. 34 of IPC; Sec. 3 and 27 of the Arms Act and Sec. 15, 16, 17, 18 & 20 of The Unlawful Activities (Prevention) Act, 1967.
2. After completion of the investigation final report was submitted before the trial Court against the accused persons 1 to 5 on 21.04.2017. The petitioner claims that there was no material for registering the criminal case nor investigating nor submitting the final report against the accused persons. The petitioner filed application u/S 227 of Cr.P.C. seeking his discharge from the case for the aforesaid offences. The application was dismissed by the learned trial Judge/ Special Judge who ordered for framing charges.
It is under these circumstances, the petitioner claims that there are no alternative means for him to urge for remedy.
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The petitioner being aggrieved by the order of the learned Special Judge and to establish his innocence preferred this Writ Petition under Articles 226 and 227 of the Constitution of India r/w Sec. 482 of Cr.P.C.
3. The said discharge application was filed by the petitioner herein, who is the accused no.5 before the Special Court. The learned Special Court is designated for trial of N.I.A. cases at Bengaluru. The present case is numbered as Spl. C.C. NO. 181/2017 for the aforesaid offences. The substance of the final report filed in this case is that, the accused nos.1 to 4 conspired with the present petitioner, who is nothing but accused no.5 to kill Rashtriya Swayamsevaka Sangha (for short RSS) members and in furtherance of their acts, they committed offences punishable u/S 302, 201 r/w Sec. 34 of IPC. The accused persons, that includes the petitioner also are said to be in possession of weapons without license, thereby it attracted the :6: offences punishable u/S 3 and 27 of the Arms Act. Further, the acts of the accused persons amounted to offences punishable u/S 120-B, 109, 150, 153A, 302, 201 r/w Sec. 34 of IPC and under Sections 16(1)(a), 18 and 20 of the Unlawful Activities (Prevention) Act.
4. Thus, as stated above, the petitioner sought discharge u/S 227 of Cr.P.C. along with other accused. The application came to be rejected on 12.01.2018.
The Writ Petition under Articles 226 and 227 of the Constitution of India r/w Sec. 482 of Cr.P.C. was preferred before this Court earlier.
5. The claim of the petitioner is that there were no documentary evidence to hold that Rudresh was a member of RSS and it is also asserted that the deceased Rudresh was involved in real estate business.
6. Learned counsel Sri S. Balakrishnan would submit that the Government in order to settle scores :7: against the petitioner, have ordered for entrusting the case to NIA. He would further submit that various Sections under the N.I.A. Act and UAP, 1967 were clamped against the petitioner and others indiscriminately. That there are no documentary or oral evidence to point out that deceased Rudresh, was indeed a member of RSS or in anyway had nexus to RSS "overtly or covertly". The allegations are bald and vague. Learned counsel would assert that even as per the charge sheet and claim of the prosecution the deceased Rudresh was a real estate businessman.
It was also submitted that C.W.1 to 53, 55 to 76, 78 to 86, 86 to 92, 94 to 96, 98 to 112 do not state any incriminating circumstance against the petitioner.
7. Learned counsel Sri S.Balakrishnan would submit vociferously that the Popular Front of India (for short 'PFI') is not a banned association and in this connection he relies on the following quote, in the case of State of :8: Kerala Vs Raneef reported in 2011 (1) SCC 784 wherein the Hon'ble Supreme Court has held as under:
"In the present case there is no evidence as yet to prove that the PFI is a terrorist organization, and hence the respondent cannot be penalized merely for belonging to the PFI."
Thus the membership of the petitioner is made because of PFI. Their Lordships in the case of Arup Bhuyan Vs State of Assam reported in (2011) 1 SCC (Cri) 855 have observed as under:
"A. Constitution of India - Arts. 19(1)(c) & (a) and 21 - Right to form association and freedom of expression - Scope of - membership of banned terrorist organization
- Inference therefrom - Held, mere membership of a banned organization will not make a person criminal unless he resorts or incites people to violence or creates public disorder by violence or incitement to violence - Terrorist and Disruptive Activities (Prevention) Act 1987
- S. 3(5) Unlawful Activities (Prevention) Act, 1967, S.
10."
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8. It was also submitted that a mere fact of some printed or soft materials relates to the PFI organization were recovered from public place does not establish that the petitioner is an active member of the banned organization.
The learned counsel for petitioner would submit that neither the Police nor the NIA have any material to register the case and attributing motive and treachery to the said organization.
In this connection, it is necessary to reproduce Sec. 20 and 38 of the U.A.P. Act, which reads as under:
"Sec. 20 - punishment for being members of terrorist gang or organization - Any person who is member of a terrorist gang or a terrorist organization, which is involved in terrorist act, shall be punishable with the imprisonment for a term which may extend to imprisonment for life and shall also be liable to fine.
Sec. 38 (1) A person, who associate himself, or professes to be associated, with a terrorist organization with intention to further its activities, commits an : 10 : offence relating to membership of a terrorist organization;
Provided that this sub section shall not apply where the person charged is able to prove -
(a) That the organization was not declared as a terrorist organization at the time when he became a member or began to profess to be member; and
(b) That he has not taken part in the activities of the organization at any time during it inclusion in the Schedule as a terrorist organization under sub-
Section(1).
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9. Learned counsel would say that none of the ingredients or the provisions of law relating to the said offences could be seen or inferred in the charge sheet. The petitioner also claims that the sanction order issued in this connection is not a valid one. Thus, according to the learned counsel the prosecution has glorified the situation and there are no grounds to call the petitioner as the accused in the said crime number on the file of : 11 : the learned 47th Addl. City Civil & Sessions Judge and Judge, NIA Special Court, Bengaluru.
10. Sri P.Prasanna Kumar learned counsel appearing for the respondent-NIA would submit that the case registered against the petitioner satisfies all the requirements of the provisions of law stated therein. He would further submit that the petitioner has also exhausted the remedy open to him, by filing application for his discharge, however, it was rejected. The materials collected initially by the Commercial Street Police and thereafter by the NIA showing five accused persons are the members of PFI and the incriminating materials seized from them doubly confirm their criminal intention.
11. Firstly, the accused persons murdered an active member of RSS who was in the uniform and used a lethal weapon on 16.10.2017. A banner of SDPI containing the photos of the accused is also seized. : 12 : Learned counsel would further submit that there are concrete evidence and materials to find that the accused-petitioner held some meetings prior to the terrorist act near Axa Masjid and near Chota Charminar in the month of September, 2016. The revelation of the investigation include that accused no.5 who is the petitioner herein was instructing and pushing force into the mind of the other accused persons to involve and go ahead with the terrorist activities. Eight to Nine months prior to the incident the accused persons including the petitioner had attended the induction classes by the Abdul Abdu Rahiman, who is recognized SDPI leader, White Field, Bengaluru.
12. Learned counsel would further submit that, in the classes conducted by him, communal riots incidents of Mujafarnagar and Babri incidents were shown. The slogans were raised against the RSS. The examples cited by the petitioner and others including the killing of : 13 : RSS members, show their hatredness towards Hinduism and their radical approach. It is also stated that the petitioners motivated and radicalized to people that act of Kafirs (non believers) are all part of jihad and the almighty Allah will bless them. The induction of members was shown in order to make them believe that they were doing the act as a part of fulfilling the objectives establishing Islam and killing of non believers. It was also submitted that, even the independent witnesses have stated about the anti social work of the petitioners. The registered numbers used by the petitioner and other accused to their motorcycles were fake. Thus one of the schemes of the petitioner was also to commit heinous and anti social activities.
13. Learned counsel for NIA would submit that the CCTV footages of accused nos.1 to 4 assembling near the spot and the analysis of CCTV footages are part of the charge sheet.
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It was also submitted that while attacking Rudresh with Machete, the accused no.2 shouted "Chinalike Kafir", i.e., "bastard non-believer". The intention of the petitioner and others as on that date indicates that their intention was to terrorize and attack particular section of people. The use of lethal weapon shows their high handed terrorist act. Learned counsel would further submit that the statement of the witnesses including C.W.1 has revealed that the petitioner, in the name of the organization, were waging war against the Society. The Forensic Examination Report from the SFSL, Madiwal, substantiate the stand of the prosecution.
14. The petitioner and others also speak about "Madikeri Jail" and claim that the brothers of PFI in Coorg are in Madikeri Jail and there is also a message which reads "INSHA ALLAH YATAYUN PETAN : 15 : MOJIPIKAN SHARMIK KUNNU PLARTIKUGA" which means pray God for their early release from jail.
15. Learned counsel also submit that the Forensic Examination Report received as Registered No.RFSL (MY)/4206/2016 from the RFSL, Mysore, reveals presence of "O" group human blood in Machete on the shirt and the monkey cap recovered from the accused no.2 as per the recovery mahazar. Thus, samples of "O" group human blood was also seen from the dark bag CDR produced by the complainant is document no.75, 76, 77.
16. Learned counsel Sri Prasanna Kumar would submit that case was registered against unknown persons in the beginning and the name of the petitioner herein was not found in the first information. Learned counsel also relied upon the observation of this Court made while disposing of the W.P. No. 6005/2017. : 16 :
17. Learned counsel for the petitioner Sri S.Balakrishnan relied upon the following decisions:
1. AIR 2017 SC 3035
2. AIR 2011 SC 340
3. AIR 2011 SC 957
4. AIR 1979 SC 366
5. AIR 1994 SC 2623
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18. In the context and circumstances of the case, the contention of the petitioner is that there are no basis for arrest and the complainant and the prosecution had prejudiced and biased to put the petitioner and other accused persons in the slot of accused and to project them as terrorists. Learned counsel would submit that, initially criminal case was registered in Crime No.124/2016 for the offence punishable u/S 302, 34 of IPC by the Karnataka State Police. It was subsequent circumstance, the matter was entrusted to the NIA. Thus the case that was registered by the local Police : 17 : was again re-registered by NIA in Case No. RC- 04/2016/NIA/HYD for the offences punishable u/S 302 read with 34 and Sections 109, 120B, 150, 153A and 201 of IPC besides Sec. 3 & 27 of Arms Act, 1959 and Sec. 15, 16, 17, 18, & 20 of the Unlawful Activities (Prevention) Act, 1967.
19. Things are adjudicated during the trial by giving respect to the established principles of natural justice and fair play. In the circumstances, it is on the petitioner to establish the prejudice or direct or indirect loss caused by the investigation made by the NIA.
When a case is taken over and re-registration of the case is nothing but same case that was registered in Commercial Street Police Station Crime No.124/2016. The Government took decision to hand over the investigation to NIA. The Government order dated 19.04.2017 wherein the Ministry of Human Affairs, coming under the Government of India in Internal : 18 : Security Division, passed the order stating that prima facie case is made against the accused. Hence, the sanction was accorded.
The particulars are as under:
Accused Name of accused Sections of Law under which sanction for prosecution is accorded A-1 Irfan Pasha Sections 16(1)(a), 18 & 20 of the Unlawful Activities (Prevention) Act A-2 Waseem Ahmed Sections 16(1)(a), 18 & 20 of the Unlawful Activities (Prevention) Act A-3 Mohammad Sadiq Sections 16(1)(a), 18 & 20 of the & Mohammad Unlawful Activities (Prevention) Act Mazar @ Mazar A-4 Mohammed Sections 16(1)(a), 18 & 20 of the Mujeeb Ulla @ Unlawful Activities (Prevention) Act Mujeeb Maula A-5 Asim Sheriff Sections 16(1)(a), 18 & 20 of the Unlawful Activities (Prevention) Act
20. Thus the sanction order that is necessary was issued by the competent authority, His Excellency, the President of India. The offences alleged and final report filed by any agency under any of the provisions of law do not connote that the case is finally adjudicated. On : 19 : the other hand, set of facts which have come out paving way for knowing that there were firm grounds to investigate and the claim of the prosecution that the accused persons have committed the said offences. It is not that the moment the charge sheet is filed, the accused are declared guilty and sent to jail to serve the sentence but there are proceedings, deliberations with ample principles to be followed during the proceedings. The accused persons always have an opportunity to present their case in defense.
Thus, the opportunity are not taken away from the petitioner for agitating his rights.
21. Learned counsel also submitted the overt act of the petitioner is not found and the petitioner was no way concerned to the offence. In this connection, it is necessary to mention the concept of common intention as defined u/S 34 of IPC, the liability of a member of the unlawful assembly in Sec. 149 of IPC. The person who : 20 : shares an intention to commit a crime will be liable because of the consensus and meeting of the mind to commit a crime. So also, in case of being a member of unlawful assembly, which has a common object to commit the crime.
22. On the other hand, the complainant or the prosecution cannot jump to the conclusion so also the accused, be it in respect of guilt or innocence, as these are too early days.
23. When the provisions of Unlawful Activities Act defines what are prohibited and the circumstances when the provisions could be invoked, the majority of the ingredients would be on facts. It is not necessary to locate only the active part of the crime or the offender, the passive participation also has to be reckoned. The Unlawful Activities Act is invoked against the petitioner object of which statute is an Act further to amend the : 21 : Unlawful Activities (Prevention) Act, 1967 and preamble of the said Act is as under:
"In the Unlawful Activities (Prevention) Act, 1967 (37 of 1967) (hereinafter referred to as the principal Act), after long title, and before the enacting formula, the following preamble shall be inserted, namely:-
"WHEREAS the Security Council of the United Nations in its 4385th meeting adopted Resolution 1373 (2001) on 28th September, 2001, under Chapter VII of the Charter of the United Nations requiring all the States to take measures to combat international terrorism;
AND WHEREAS Resolutions 1267(1999), 1333(2000), 1363(2001), 1390 (2002), 1455(2003),
1526(2004), 1566(2004), 1617(2005), 1735 (2006) and 1822(2008) of the Security Council of the United Nations require the States to take action against certain terrorists and terrorist organizations, to freeze the assets and other economic resources, to prevent the entry into or the transit through their territory, and prevent the direct or indirect supply, sale or transfer of arms and ammunitions to the individuals or entities listed in the Schedule;: 22 :
AND WHEREAS the Central Government, in exercise of the powers conferred by Section 2 of the United Nations (Security Council) Act, 1947 (43 of 1947) has made the Prevention and Suppression of Terrorism (Implementation of Security Council Resolutions) Order, 2007;
AND WHEREAS it is considered necessary to give effect to the said Resolutions and the Order and to make special provisions for the prevention of, and for coping with, terrorist activities and for matters connected therewith or incidental thereto."
24. Insofar as the NIA is concerned, it is a body established under the Statute and the sanction for initiating proceedings has to be issued by the competent authority, His Excellency. It is the objective satisfaction and prima facie confirmation about the existence of ingredients and foreseeing of the drastic consequences in case of inaction that propels the competent authority for issuing sanction and in this connection the sanction : 23 : order issued to initiate proceedings initially comes after the proceedings were initiated.
Apart from claiming that the sanction order is bad, as to how or why the said order is bad, it is necessary to state the circumstances under which the sanction order is bad. Whenever, a person wants to claim that particular order or notification is bad or invalid, to claim benefit, it does not become complete by just claim as invalid and bad, he has to assign the factors that would make the order or notification invalid or bad in law. In this connection it is necessary to mention the datewise events.
1. Date of incident where the murdered 16.10.2016 body of Rudresh was found at Shivajinagar
2. Complaint lodged by Jayaram
3. Case is registered in Crime No. 16.10.2016 124/2016 for the offences punishable u/S 302, 34 of IPC
4. FIR was submitted to the jurisdictional 16.10.2016 Court on : 24 :
5. The Court to which the FIR and complaint were filed is: 43rd Addl. CMM Court, Mayohall, Bangalore City
25. When the investigation was in progress the Union of India ordered for entrustment of the case to the NIA. In this connection the sanction order is issued in the name of His Excellency the Hon'ble President of India is dated 07.12.2016. Initially the FIR was registered against unknown persons and thereafter on 27.10.2016 four persons were arrested arrayed as accused Nos.1 to
4. 5th accused person (Petitioner under this petition) was arrested 02.11.2016. He is arrayed as accused No.5. Now that the investigation is by the National Investigating Agency and the Crime number is 124/2016 for the offences punishable u/S 302 r/w Sec. 34 of IPC besides Sec. 109, 120B, 150, 153A, 201 of IPC, Sec. 3 & 27 of the Arms Act, 1959 and Sections 15, 16, 17, 18 & 20 of the Unlawful Activities (Prevention) Act, 1967.
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26. After the cognizance was taken by the Special Court, discharge application was filed under Section 227 of Cr.P.C. on behalf of accused No.5 in Spl. C.C. No. 181/2017. By order dated 02.01.2018 the said application was rejected. The relevant portion of the order reads as under:
"22. It is needless to mention herein that this Court has already taken the cognizance of offences alleged and it is needless to mention herein that obtaining of sanction is condition precedent as on the date of taking cognizance of the offences alleged. That the Sanction having been obtained by the NIA at the time of cognizance of alleged offences and the cognizance having been already taken by this Court, this court is of the firm view that it is not good to pass any orders in respect of sanction for the simplest reason that passing of any orders with regard to genuineness or otherwise of sanction, the same would amounts to an act of usurping of appellate or revisional jurisdiction. That the order of taking cognizance is intact even on this day. Therefore, for the reasons assigned in these paragraphs and in the preceding paragraphs of this order, NIA has established that material adduced by it are sufficient enough to proceed with the case and that the same do : 26 : give subjective satisfaction of existence of prima-facie case of alleged offences. Therefore, the subject matter of Point No.2 deserves to be answered in the Negative, that of Point No.3 deserves to be answered in the affirmative and that of point No.4 in the Negative and the said points are hereby answered accordingly. This court proceeds to pass the following:
ORDER The application filed under Section 227 of Cr.P.C. by the accused No.5 is hereby dismissed. That the case on hand deserves to be proceeded with framing of charge in respect of alleged offences as mentioned I the charge sheet as against all the accused persons.
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It is further necessary to mention that the urging for the relief by the petitioner was being carried out before different forums substantially for the same relief.
27. All the five accused persons which included the petitioner herein challenged the order in Crime No.124/2016 dated 05.11.2016 and the order of the Central Government dated 19.04.2017 ordering for entrusting the case has to be investigated by the NIA, in : 27 : W.P. Nos.7267-7270/2017 c/w W.P. No. 6005/2017.
At this juncture it is invariably necessary to repeat that the criminal case that was registered in respect of the incident dated 16.10.2016 for the alleged offences by the Commercial Street Police in Crime No.124/2015 came to be questioned.
28. His Lordship partly allowed W.P. Nos.7267- 7270/2017 c/w W.P. No. 6005/2017 wherein the order of the Central Government dated 19.04.2017 handing over the investigation of the case to NIA was set aside and the prayer for setting aside the order of the Special Judge taking cognizance, was rejected and His Lordship ordered the investigation into the offences registered against the petitioner, shall be continued by the respondent No.1-State in accordance with Rules 43(1) of the Unlawful Activities Act.
29. Thus it makes abundantly clear that, by virtue of the order passed by His Lordship in W.P. Nos. 7267- : 28 : 7270/2017 c/w W.P. No. 6005/2017, this Court nodded approval for the investigation by the State Government and not the NIA. The order passed by His Lordship in 7267-7270/2017 c/w W.P. No. 6005/2017 was set aside by the Division Bench of this Court in W.A. No. 2213/2017 c/w 2214-2217/2017. The relevant paragraph No.49 reads as under:
"49. In view of above discussion, we are of the considered view that, the impugned order passed by the Hon'ble Single Judge, so far as it relates to setting aside the order dated 07.02.2016 passed by the Ministry of Home Affairs, directing the National Investigation Agency to investigate the offences in Crime No. 124/2016 of Commercial Street Police Station, is unsustainable law. Hence, these appeals eminently deserve to be allowed.
50. Resultantly, we pass the following:
ORDER
(i) Appeals are allowed.
(ii) Common order dated 21.03.2017 passed by the Hon'ble Single Judge in W.Ps. No. 7267-7270/2017 : 29 : connected with W.P.No. 6005/2017, so far as it relates to setting aside the order dated 07.02.2016 passed by the ministry of Home Affairs, directing the NIA to investigate the offences in Crime No. 124/2016 of Commercial Street Police Station, is set aside;
(iii) W.Ps. No.7267-7270/2017 connected with W.P. No. 6005/2017 are dismissed."
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30. Thus, it is crystal clear by now that this Court in the Writ Appellate Jurisdiction has given its definite and precise finding that the investigation to be by the NIA. In the circumstances, it is to be observed that, in this Writ Petition connected to Sec. 482 of Cr.P.C. seeks for issue of a Writ of Mandamus to set aside the order dated 02.01.2018 passed in Spl. C.C. No. 181/2017 by the learned XLIS Addl. City Civil & Sessions Judge, (Special Court of Trial of NIA Cases) at Bengaluru, and thereby discharge the accused No.5-petitioner herein.
31. Literally, the prayer sought before this Court under this petition is against the matter and order that : 30 : has been dealt with by the Division Bench of this Court. Apart from the procedure the substances, calculation and the intention of the petitioner has to be assessed from this angle as well. The mode cannot be "bend the law when you can't break it".
32. It is a well known process that appreciation of evidence varies from stage to stage of a criminal case, such as, cognizance, adjudication of bail application, etc. Adjudication u/S 227 and 239 of Cr.P.C.; adjudication u/S 319 of Cr.P.C. or the final judgment certain set of events are to be taken into consideration. The petitioner cannot claim that his prayer has to be considered, reconsidered and further considered irrespective of maintainability. That the petitioner in his hasty or calculated approach does leave a single stone unturned to question and to seek set aside the proceedings.
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33. The concept of common intention, common object by members of an unlawful assembly or conspiracy are to be adjudicated taking the facts and events supported by the documentary and oral evidence. Union of India did not pass order from an isolated corner. It was passed after the offence of murder was detected. The stand of the petitioner that, because of his membership of an organization-PFI, he was detained, that is not correct. His arrest primarily was ordered as the accused No.5 in a criminal case. The subsequent discovery of fresh materials and circumstances reveal the commission of offences under the provisions of Unlawful Activities Act. It is not only because of murder, the attendant circumstances, available materials are considered and speaking order was passed to entrust the case to NIA.
34. The agitation which started with an application for discharge by the five accused persons in Spl. C.C. No. : 32 : 181/2017 and then got delinked between accused No.5 and the accused Nos.1 to 4 after the dismissal of the Criminal Appeal, when the accused Nos.1 to 4 filed criminal appeal and the order for framing charge was confirmed. Thereafter, accused Nos.1 to 4 preferred W.P. Nos.7267-7270/2017 and the accused No.5 preferred W.P. No. 6005/2017 challenging the order of the Central Government entrusting the investigation to NIA and order passed by the learned Special Judge which came to be partly allowed as the order of the Central Government entrusting the investigation was set aside. The order of the learned Special Judge in Spl. C.C. No. 181/2017 was confirmed.
Thus, the result is there is no obstruction for the trial. In the further circumstances, this Court in W.A. no.2213/2017 c/w W.A. nos.2214-2217/2017 dated 26.03.2018 paved way for the investigation by the respondent agency.
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In the circumstances, the objection over facts, adjectives in various forms is also in a way asking the Court to adjudicate that matter again despite being adjudicated after full fledged proceedings, is not proper.
35. The terrorist or disruptive activities have its activating centre in the mind of a person who converts himself a terrorist irrespective of his or her linguistic or regional background. The hidden agenda or any terrorist group would come to know after the happening of an incident.
36. The learned counsel for the petitioner would submit that there was no whisper from the witnesses, more particularly, CW55, CW55 TO 76, 78 TO 86, 86 TO 92, 94 TO 96, 98 TO 112.
37. A member or institution which deserves to be dealt according to law, the partial organization shall have been banned, name and nature do not matter, but it is the mode of operation impact on the secular fabric of : 34 : the nation with reference to its security and the integrity.
38. Learned counsel for the petitioner submitted that the identification parade is not made. The substance of the present case is concerned, it does not revolve around the factor of mandatory identification.
39. In this connection, the Hon'ble Supreme Court in the case of State of Kerala Vs Raneef reported in 2011 (1) SCC 784 has observed as follows:
"In the present case there is no evidence as yet to prove that PFI is a terrorist organization, and hence the respondent cannot be penalized merely for belonging to the PFI."
Similarly, the Hon'ble Supreme Court in the case of Arup Bhuyan Vs State of Assam reported in 2011 (1) SCC (Cri) 855 has observed as under:
"A. Constitution of India - Arts. 19(1)(c ) & (a) and 21 - Right to form association and freedom of expression - Scope of - membership of banned - terrorist : 35 : organization - Inference therefrom - Held, mere membership of a banned organization will not make a person criminal unless he resorts or incites people to violence or creates public disorder by violence or incitement to violence - Terrorist and Disruptive Activities (prevention) Act, 1987 - S.3(5) Unlawful Activities (Prevention) Act, 1967, S.10."
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40. It is not only on the basis of the recovery of material, offence is identified, on the other hand, the true content of any documents or material is to be discovered rather than read. This Court does not sit to pass a judgment over the nature and object of PFI. On the other hand, stretching of the crime of murder of Rudresh may be required to be examined, whether it has its visible or invisible tentacles to various institutions or communities in the society. The investigation was ordered on the basis of certain revelations, circumstances and also with reference to the fact that deceased Rudresh was a member of RSS and the final report is filed.
: 36 :
41. The petitioner cannot insist the deceptive analysis of each and every phrases while deciding on framing charge.2
42. No doubt the present petition is invoking writ jurisdiction under the Constitution of India and inherent powers of this Court, regard being had to the fact that in the earlier round of litigation, the stand of the petitioner was specifically negatived by the orders of this Court. The matter has been urged, assessed and adjudicated in the proceedings and again the petitioner has come for the next round. On facts or in law there is no material worth to suggest fallibility of the proceedings in Spl. C.C. NO. 181/2017 pending on the file of XLIX Addl. City Civil & Sessions Judge (Special Court of trial of NIA cases) at Bengaluru for the offences punishable u/S 302, 201 r/w Sec. 34 of IPC and Section 3 and 27 of Arms Act and under Section 15, 16, : 37 : 17, 18 and 20 of Unlawful Activities (Prevention) Act, 1967.
Petition is devoid of merits and is liable to be rejected. Hence, the following order is passed:
ORDER The petition is rejected.
Sd/-
JUDGE bvv