Jharkhand High Court
Binod Kumar Ganjhu @ Vinod Kumar Ganjhu @ ... vs Union Of India on 30 November, 2022
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Writ Jurisdiction)
WP(Cr.)(DB) No. 308 of 2022
1. Binod Kumar Ganjhu @ Vinod Kumar Ganjhu @ Binod Ganjhu, s/o late
Puran Ganjhu, resident of village Masilong, PO and PS Tandwa, District
Chatra, Jharkhand
2. Bindeshwar Ganju @ Bindu Ganjhu, s/o Bhikan Ganjhu, resident of village
Honhe, PO and PS Chatra, District Chatra, Jharkhand
......Petitioners
Versus
1. Union of India, through the Secretary, Ministry of Home Affairs,
Government of India, New Delhi, North Block, PO and PS North Avenue, New
Delhi
2. Union of India through National Investigation Agency, Ranchi
..... Respondents
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Petitioners : Mr. Balaji Srinivasan, Advocate
Mr. Niranjan Kumar, Advocate
Ms. Aakriti Priya, Advocate
For the Union of India : Mr. Vinod Kumar Sahu, Sr. Panel Counsel
For the NIA : Mr. Amit Kumar Das, Advocate
Mr. Sahay Gaurav Piyush, Advocate
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ORDER
30th November 2022 Per, Shree Chandrashekhar, J.
In this writ petition (criminal), the petitioners have challenged:
(i) validity of the order bearing no. 11011/08/2018/NIA dated 13 th February 2018 issued by the Government of India, Ministry of Home Affairs and
(ii) Government Notification No. 11011/08/2018/NIA dated 19 th December 2018 issued by the Government of India, Ministry of Home Affairs granting sanction for prosecution under the Unlawful Activities (Prevention) Act, 1967 (in short, UAP Act).
2. According to the petitioners, on quashing of the aforesaid orders dated 13th February 2018 and 19th December 2018, the order passed by the Chief Judicial Magistrate, Ranchi on 11 th March 2016 in Tandwa PS Case No. 2 of 2016 and 2nd cognizance order dated 03rd January 2019 in RC 06 of 2018/NIA/DLI would lose their foundation and, consequently, the entire criminal proceeding arising out of Tandwa PS Case No. 2 of 2016 which was later on registered as RC 06 of 2018/NIA/DLI may be quashed.
2 WP(Cr.)(DB) No. 308 of 20223. Simply put, the order taking cognizance under sections 17, 18, 20 and 21 of the UAP Act against Binod Kumar Ganjhu and Bindeshwar Ganjhu @ Bindu Ganjhu has been challenged by them on the ground that once it is held by this Court that the orders dated 13 th February 2018 and 19th December 2018 were issued on a misconception of facts the order taking cognizance would stand vitiated.
4. Briefly stated, Tandwa PS Case No. 2 of 2016 was registered on 11th January 2016 under sections 414, 384, 386, 387 and 120B of the Indian Penal Code (in short, IPC), sections 25(1-B)(a), 26 and 35 of the Arms Act and section 17(1)(2) of the Criminal Law Amendment Act, 1908 (in short, CLA Act) and a charge-sheet was filed on 10 th March 2016 in the Court of the Chief Judicial Magistrate sending up five persons for trial, while investigation against seven other accused was kept pending. By an order dated 11 th March 2016, the jurisdictional Court took cognizance of the offence under sections 414, 384, 386, 387, 120B of the IPC, sections 25(1-B)(a), 26 and 35 of the Arms Act and section 17(1)(2) of the CLA Act - but, not under UAP Act.
5. Later on, pursuant to the order dated 13 th February 2018, on conclusion of further investigation by the National Investigation Agency (in short, NIA), 1st supplementary charge-sheet dated 21st December 2018 was filed with UAP Act offences against (i) Binod Kumar Ganjhu, (ii) Munesh Ganjhu, (iii) Birbal Ganjhu, (iv) Pradeep Ram @ Pradeep Verma, (v) Bindeshwar Ganjhu @ Bindu Ganjhu, (vi) Amar Singh Bhokta @ Laxman Ganjhu @ Lallanji @ Koharam Ji @ Ibrahim, (vii) Subhan Mian, (viii) Sudhanshu Ranjan @ Chhotu Singh, (ix) Sanjay Jain, (x) Ajit Kumar Thakur,
(xi) Prem Vikash @ Mantu Singh, (xii) Mukesh Ganjhu @ Muneshwar Ganjhu,
(xiii) Bhikhan Ganjhu, (xiv) Akramanji @ Neta Ji @ Ravinder Ganjhu @ Ram Vinayak Bhokta, (xv) Gopal Singh Bhokta @ Brijesh Ganjhu and (xvi) Anishchay Ganjhu - the petitioners were made accused in the FIR.
6. 2nd cognizance order dated 03rd January 2019 incorporated the offences under UAP Act.
7. The Special Court (NIA) has framed charges against Binod Kumar Ganjhu under sections 120B r/w 387, 120B r/w 384, 120B r/w 386, 386 r/w 411, 386 r/w 414 of the IPC, sections 17, 18, 20 and 21 of the UAP Act, sections 25(1-B)(a), 26 and 35 of the Arms Act and section 17 of the CLA Act.
8. Against Bindeshwar Ganjhu @ Bindu Ganjhu, charges have been framed under sections 120B r/w 387, 120B r/w 384, 120B r/w 386, 414 of the 3 WP(Cr.)(DB) No. 308 of 2022 IPC, sections 17, 18, 20 and 21 of the UAP Act and section 17 of the CLA Act and, in the trial, NIA has examined by now eight witnesses.
9. In the aforesaid background, the first challenge laid by the respondents is to maintainability of the present writ petition. Mr. Amit Kumar Das, the learned counsel for the NIA has contended that the sanction orders cannot be challenged at this stage by invoking powers of the Court under Article 226 of the Constitution of India and, in any event, a distinction has to be drawn between two situations viz. (i) absence of sanction order and (ii) irregularity/infirmity in the sanction order.
10. To challenge the orders dated 13th February 2018 and 19th December 2018, Mr. Balaji Srinivasan, the learned counsel for the petitioners has referred to the application dated 12 th April 2017 and order dated 12th April 2017 passed by the Chief Judicial Magistrate on the said application.
11. The main thrust of the learned counsel for the petitioners is on the order dated 12th April 2017 passed by the Chief Judicial Magistrate, Ranchi. The submission raised on behalf of the petitioners is that the offence under sections 16, 17, 20 and 23 of the UAP Act were not incorporated in the original records but on an assumption that the offence under the aforesaid provisions of the UAP Act were added in course of the investigation, the Central Government has issued the order dated 13 th February 2018 to direct the NIA to take up investigation of Tandwa PS Case No. 2 of 2016 and by an order dated 19th December 2018 has granted sanction for prosecution of the accused including the petitioners under different provisions of the UAP Act.
12. The order dated 12th April 2017 reads as under:
"An application has been filed by the I.O. of the case with a prayer to add section 16, 17, 20, 23 of UAP Act in the FIR. The application has duly been forwarded by the Ld. APP. Seen & perused the case record. This is the supplementary case record and it is not possible to add any section in this record. The I.O is directed to pray for addition of the section in the original record."
13. A glance at the order dated 12 th April 2017 provides sufficient indication that the application filed by the prosecution was not declined by the Chief Judicial Magistrate and it was only on account of the original case records not being before the Court the aforesaid observation has been made by the Chief Judicial Magistrate. Moreover, from the order dated 12 th April 2017, this much is clear that in course of investigation sufficient materials were collected on complicity of the accused for the offence under the UAP Act.
4 WP(Cr.)(DB) No. 308 of 2022Furthermore, it is not in dispute that 1 st Supplementary charge-sheet dated 21 st December 2018 has been laid against the petitioners for committing offence under sections 17, 18, 20 and 21 of the UAP Act. Now cognizance of the offence under various provisions of the IPC, Arms Act, CLA Act and UAP Act has been taken by the Court and, by an order dated 23 rd August 2019, charges have been framed against the petitioners.
14. Therefore, the plea urged on behalf of the petitioners that the offences under the UAP Act have not been incorporated in the original records is of no consequence. The NIA by filing 1 st supplementary charge-sheet and the Court by taking cognizance and framing charge under sections 17, 18, 20 and 21 of the UAP Act have made it known to the petitioners that they are being prosecuted for the aforesaid offences. In any event, the plea urged on behalf of the petitioners is a plea on facts which if so advised the petitioners may raise at the trial by cross-examining the prosecution witnesses.
15. The Union of India has supported the orders dated 13 th February 2018 and 19th December 2018 pleading that the Central Government keeping in mind gravity of the offence which involved commission of a scheduled offence under the National Investigation Agency Act, 2008 (in short, NIA Act) formed an opinion that Tandwa PS Case No. 2 of 2016 is required to be investigated by the NIA. Mr. Vinod Kumar Sahu, the learned Sr. Panel Counsel for the Union of India has submitted that there is no error, irregularity or illegality in exercise of powers by the Central Government under sub-section (5) to section 6 of the NIA Act. It is further submitted that after carefully examining the materials collected during the investigation and recommendation of the Authority in its report dated 13th December 2018, on being satisfied, the order sanctioning prosecution dated 19th December 2018 has been passed by the Central Government.
16. Sub-section (5) to section 6 of the NIA Act provides as under:
"6. Investigation of Scheduled Offences.--
............................................................................................................ (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."
17. There is no doubt on powers of the Central Government to direct the NIA to investigate a scheduled offence. Sub-section (5) to section 6 of the NIA Act starts with a non obstante clause and provides that the Central Government may suo-motu direct the NIA to investigate a scheduled offence 5 WP(Cr.)(DB) No. 308 of 2022 upon forming an opinion that such an offence has been committed. This being an indisputed position in law, whether or not commission of any scheduled offence under the UAP Act has been incorporated in the original records must be held inconsequential. The learned counsel for the petitioners has referred to the order passed in "Pradeep Ram v. State of Jharkhand & Anr." (2019) 17 SCC 326 wherein the Hon'ble Supreme Court has noticed stand of the NIA that provisions under the UAP Act were added on 9 th April 2017. But, as already held by us, it is inconsequential when the scheduled offences under the UAP Act were added in the original records and we would simply observe that, if so required, any controversy as regards the date when the scheduled offences under the UAP Act were added may be clarified during the trial.
18. A plea raised on behalf of the petitioners is that sanction for prosecution was granted after inordinate delay. In this context, Mr. Balaji Srinivasan, the learned counsel for the petitioners has referred to Rules 3 and 4 of the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 (in short, Sanction Rules).
19. The learned counsel for the petitioners has extensively referred to the judgment of Kerala High Court in "Roopesh v. State of Kerala" 2022 SCC OnLine Ker 1372 to submit that the provisions under sub-section (2) to section 45 of the UAP Act and Rules 3 and 4 of the Sanction Rules are mandatory in nature. According to the learned counsel for the petitioners, that is absolutely necessary for the reason that the aforesaid provisions in law have a direct connection to rights of an accused under Article 21 of the Constitution of India.
20. Rules 3 and 4 of the Sanction Rules provide as under:
"3. Time limit for making a recommendation by the Authority - The Authority shall, under sub-section (2) of section 45 of the Act, make its report containing the recommendations to the Central Government or, as the case may be, the State Government within seven working days of the receipt of the evidence gathered by the investigating officer under the code.
4. Time limit for sanction of prosecution - The Central Government or, as the case may be, the State Government shall, under sub-section (2) of section 45 of the Act, take a decision regarding sanction for prosecution within seven working days after receipt of the recommendations of the Authority."
21. Rule 3 of the Sanction Rules provides that the Authority constituted under sub-section (2) to section 45 of the UAP Act shall make its report within seven working days and Rule 4 mandates that the Central Government after receipt of recommendation of the Authority shall take a 6 WP(Cr.)(DB) No. 308 of 2022 decision regarding sanction for prosecution within next seven working days.
22. The Union of India in its affidavit has pleaded that the materials collected during investigation were forwarded to the Authority through letter dated 12th December 2018 of the Ministry of Home Affairs and the said Authority sent its reports on 13th December 2018. There is no dispute that the order according sanction for prosecution under the UAP Act has been issued vide order dated 19th December 2018. It is thus clear that the recommendation of the Authority and order of the Central Government for prosecution have been issued within the time limit prescribed under Rules 3 and 4 of the Sanction Rules. The petitioners have, however, challenged the order dated 19 th December 2018 on the ground that the said order has been issued about ten months after Tandwa PS Case No. 2 of 2016 was transferred for further investigation to the NIA by an order dated 13 th February 2018 issued by the Central Government. We do not find any substance in this plea simply for the reason that the evidence as envisaged under Rule 3 of the Sanction Rules refers to the materials collected at the end of investigation and not midway. It is only on conclusion of the investigation that the prosecution shall forward the materials collected during investigation to the Central Government seeking sanction for prosecution for the UAP Act offences. Such being the intention of the legislature, the respondents have rightly pleaded that there was no delay in according sanction for prosecution vide order dated 19 th December 2018.
23. The decision in "Roopesh" is not a binding precedent and we do not find ourselves bound by the considerations of judicial comity and propriety. We are unable to record our agreement to the observations made by the Kerala High Court in "Roopesh" that the time-line provided under Rules 3 and 4 of the Sanction Rules is mandatory. It is indeed not an issue for debate that the expression "shall" would not always convey mandatory compliance of the provision in law. In our opinion, the Sanction Rules lay down a time-line which is in the nature of a guideline keeping in mind personal liberty of a person but such time-line cannot be held to be mandatory and, that too, in cases where serious allegations of commission of offence under UAP Act have been made and found prima-facie true by the NIA.
24. Long back, it has been held by the Hon'ble Supreme Court that the only principle which governs the criminal justice system is miscarriage of justice. This rule has its origin in the rules of principles of natural justice and that is why time and again the Hon'ble Supreme Court has laid stress on fair 7 WP(Cr.)(DB) No. 308 of 2022 trial. Even on conclusion of the trial, the judgment rendered by a competent Court was not held illegal where a charge was not framed by the Court [refer, "Begu v. King-Emperor" ILR (1925) 6 Lah 226]. In this context, we may also refer to the provisions under sections 468 to 473 of the Code of Criminal Procedure which provide period of limitation for taking cognizance and exclusion as well as extension of period of limitation in certain cases. The scheme of the Code of Criminal Procedure thus indicates that it is not every irregularity which vitiates the trial and except in very exceptional kind of cases the Court would not step into and hold the judgment rendered illegal. The fundamental right of an accused is of fair trial in which he has sufficient opportunity to defend himself by cross-examining the prosecution witnesses to bring out falsity in the prosecution case. But beyond this, an accused has only a statutory right to establish that the procedure as prescribed under the law has not been followed and such non-adherence to the procedure prescribed has deprived him a fair opportunity to defend himself which occasioned in miscarriage of justice. As noticed above, the Court has taken cognizance of the offence under the UAP Act and charge has also been framed for committing such offence. In our considered opinion, the Sanction Rules would have no application in the cases of this nature because a criminal prosecution cannot be frustrated on mere technicalities.
25. The sanction order dated 19th December 2018 has been challenged by the petitioners also on the ground of non-application of mind and, in this context, the learned counsel for the petitioners has heavily relied on the judgment of Kerala High Court in "Roopesh" to submit that the sanction order does not reveal that there was any independent review made by the Authority constituted under section 45(2) of the UAP Act.
26. On the other hand, referring to the judgment in "State of Maharashtra v. Mahesh G. Jain" (2013) 8 SCC 119, "State of M.P. v. Harishankar Bhagwan Prasad Tripathi" (2010) 8 SCC 655, "State of Goa v. Babu Thomas" (2005) 8 SCC 130 and "Central Bureau of Investigation & Ors. v. Pramila Virendra Kumar Agarwal & Anr." (2020) 17 SCC 664, Mr. Amit Kumar Das, the learned counsel for the NIA would submit that in cases where sanction order is challenged being invalid for certain reasons or on the ground of non-application of mind, the prosecution shall have an opportunity in course of the trial to lead evidence to establish validity of the sanction order.
8 WP(Cr.)(DB) No. 308 of 202227. On independent review by the Authority and non-application of mind by the Central Government in issuing sanction order dated 19 th December 2018, we would say that there is sufficient indication in the order to hold that the Authority comprising Justice Dr. Satish Chandra (Retd.) and Dr. T. K. Vishwanathan, a former Law Secretary, have made an independent review of the evidence gathered in the course of investigation. We find that in paragraph no. 6 of the order dated 19 th December 2018 the Central Government has recorded its satisfaction that on the basis of the materials available on record the Authority has made recommendation for prosecution. It is further stated that the Authority has made recommendation for sanction for prosecution keeping in mind the facts and circumstances of the case. We further find that in the order dated 19th December 2018 it has been specifically recorded that the materials placed on record have been carefully examined by the Central Government and on being satisfied that a prima-facie case is made out against the accused for prosecution under the provisions of UAP Act the said order has been issued.
28. The above being the state of affairs, on the powers of the Court to examine validity of the sanction order, we may refer to "R. Sundararajan v. State" (2006) 12 SCC 749 wherein the Hon'ble Supreme Court has held as under :
"14. .... it may be mentioned that we cannot look into the adequacy or inadequacy of the material before the sanctioning authority and we cannot sit as a court of appeal over the sanction order. The order granting sanction shows that all the available materials were placed before the sanctioning authority who considered the same in great detail. Only because some of the said materials could not be proved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this case there was abundant material before the sanctioning authority, and hence we do not agree that the sanction order was in any way vitiated."
29. The order granting sanction for prosecution is no doubt in the nature of an administrative order but there is no guideline provided under any statute or rules what and how much should be written in an order granting sanction for prosecution. One may say, and as held by the Hon'ble Supreme Court in "Jaswant Singh v. State of Punjab" AIR 1958 SC 124, that the sanction order must reflect application of mind on a mere glance on it. But, at the threshold, there is definitely very limited scope to challenge the order of sanction for prosecution. Such instances may be in cases where the order containing sanction for prosecution records an altogether different set of facts 9 WP(Cr.)(DB) No. 308 of 2022 or something which is fundamentally wrong or contrary to the prosecution case. In our opinion, in the order sanctioning prosecution it is not necessary that the Central Government should extract portions of the report and recommendations made by the Authority so as to reflect the application of mind. It would be during the trial when the prosecution can prove that a valid sanction has been granted by the sanctioning Authority after being satisfied that a prima-facie case for prosecution of the accused is made out. In this context, we may refer to the judgment in "C. S. Krishnamurthy v. State of Karnataka"
(2005) 4 SCC 81 wherein the Hon'ble Supreme Court has held that the sanction order should speak for itself, and in case the facts do not so appear, it should be proved by leading evidence that all relevant materials were placed before the sanctioning Authority for due application of mind.
30. Therefore, a plea challenging the order granting sanction for prosecution being defective or on assumption of certain facts which infact do not exist can be considered only during the trial and not in a proceeding under Article 226 of the Constitution of India. By saying so, we are not indicating that evidence cannot be taken in a writ proceeding but we are persuaded to hold so because a mini criminal trial cannot be held in a proceeding like the present one and, that too, at the instance of the accused. A defect in the sanction order or validity or invalidity of the sanction order is primarily a question of fact which cannot be decided on the basis of the affidavits filed by the parties, except in a case where the sanction order has admittedly been issued by an incompetent Authority. In a criminal trial, this procedure is required to be followed, which would also be in consonance with the rules of natural justice. Otherwise, it would be unfair to the prosecution and the competent authority who passed the order granting sanction for prosecution. This would be unfair to the competent authority for the reason that without his cross-examination the validity or invalidity of the sanction order is inferred by the Court.
31. In "Dinesh Kumar v. Chairman, Airport Authority of India & Anr." (2012) 1 SCC 532 the Hon'ble Supreme Court has drawn a distinction between absence of sanction and invalidity of the sanction order on account of non-application of mind. The Hon'ble Supreme Court has held that the absence of sanction can be agitated at the threshold but invalidity of the sanction order can be raised only during the trial.
32. In "Pramila Virendra Kumar Agarwal", in which the decision in "Dinesh Kumar" has been referred to, the Hon'ble Supreme Court has held as 10 WP(Cr.)(DB) No. 308 of 2022 under :
"11. Further the issue relating to validity of the sanction for prosecution could have been considered only during trial since essentially the conclusion reached by the High Court is with regard to the defective sanction since according to the High Court, the procedure of providing opportunity for explanation was not followed which will result in the sanction being defective. In that regard, the decision in Dinesh Kumar v. Airport Authority of India relied upon by the learned Additional Solicitor General would be relevant since it is held therein that there is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The absence of sanction no doubt can be agitated at the threshold but the invalidity of the sanction is to be raised during the trial. In the instant facts, admittedly there is a sanction though the accused seek to pick holes in the manner the sanction has been granted and to claim that the same is defective which is a matter to be considered in the trial."
33. A true construction of the expression "no Court shall take cognizance of any offence without the previous sanction of the Central Government" would no doubt envisage a valid sanction order but, as noticed above, validity or invalidity of the sanction order can only be tested during the trial, except in very exceptional kind of cases such as an incompetent person granting sanction order.
34. Furthermore, we are of the opinion that a distinction has to be drawn between section 19 of the Prevention of Corruption Act, 1988 (in short, PC Act) and sub-section (2) to section 45 of the UAP Act.
35. The fundamental distinction between these two provisions lies in the object behind bringing these legislations. The object behind enacting the PC Act was to effectively combat corruption among public servants. But, at the same time, the Parliament keeping in mind misuse of the PC Act at the hands of unscrupulous persons who may nurture a grudge against the public servants provided protection under section 19 of obtaining previous sanction for prosecution. The UAP Act has been brought on the statute book to provide for effective prevention of certain unlawful activities of individuals and association and for dealing with terrorist activities and the matters connected therewith. The amendments made in the UAP Act have their origin in the Resolutions adopted by the Security Council of the United Nations which indicate a united resolve by the nations across the globe to combat terrorism. The importance of UAP Act is further evident from the provisions under section 46 which made evidence collected through the interception of communications admissible against the accused and section 47 which provides that no proceeding taken under this Act shall be called into question in any civil Court in any suit or 11 WP(Cr.)(DB) No. 308 of 2022 application or by way of appeal or revision, and no injunction shall be granted by any civil Court or other Authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. The provisions under sections 48, 49 and 50 of the UAP Act further indicate that it is a special statute under which a bar to take cognizance as provided under section 45 is intended at saving innocent persons from being prosecuted under this Act, and nothing more. We are, therefore, of the considered opinion that the negative covenant used under section 45 cannot be stretched too far to render the object behind enacting UAP Act superfluous and nugatory.
36. Even in the context of the PC Act in "State of Karnataka v. Ameerjan" (2007) 11 SCC 273 the Hon'ble Supreme Court has observed that the purpose for which an order of sanction is required should always be borne in mind.
37. In "Ameerjan" the Hon'ble Supreme Court has held as under:
"9. ... an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not."
38. Therefore, the provisions under section 45 of the UAP Act have to be tested with purposive interpretation and for that purpose intention of the legislature must bear in minds of the Court. There is an in-built mechanism provided under sub-section 2 to section 45 of the UAP Act to prevent misuse of powers and, therefore, the sanction order enjoys a kind of immunity from scrutiny by the Court at the threshold.
39. In view of the above discussions, WP(Cr.)(DB) No. 308 of 2022 being devoid of merits is dismissed.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 30th November 2022 Tanuj/.A.F.R