Jharkhand High Court
Sanjay Jain vs The Union Of India on 31 January, 2022
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No. 859 of 2019
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Sanjay Jain, son of Sh. Padam Kumar Jain, resident of 308, Chandni Chowk,
Kanke Road, Ranchi-834008, PO Kanke Road, PS Kanke, District Ranchi,
Jharkhand ..... Appellant
Versus
The Union of India, through NIA . ...Respondent
(Through V.C.)
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant: Mr. Shubham Gupta, Advocate
Ms. Pinky Shaw, Advocate
For the NIA: Mr. A.K. Das, Advocate
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st
Order No. 12/31 January 2022
Per, Shree Chandrashekhar, J.
This criminal appeal has been assigned to DB-III by an order dated 26th August 2021 passed on the administrative side by Hon'ble the Chief Justice of Jharkhand High Court.
2. The present criminal appeal has been preferred under section 21 of National Investigation Agency Act, 2008 (in short, 'NIA') against the order dated 25th July 2019 passed in Special (NIA) Case No. 03 of 2018.
3. Misc. Criminal Application No. 821 of 2019 was filed by the accused under section 227 of the Code of Criminal Procedure seeking discharge in the Special (NIA) Case arising out of RC- 06/2018/NIA/DLI.
4. The learned Judicial Commissioner, Ranchi who was the designated Special Judge (NIA) dismissed the application for discharge vide order dated 25th July 2019 holding that involvement of Sanjay Jain in commission of the offence under sections 384, 414, 109, 120B of the Indian Penal Code (in short, 'IPC'); section 17, 18 and 20 of the Unlawful Activities (Prevention) Act (in short, ''UA(P) Act'') and; section 17 of the Criminal Law Amendment Act, 1908 (in short, ''CLA Act'') is prima facie established. The learned Special Judge further held that there are sufficient incriminating materials available on the record for framing of charge qua Sanjay Jain against whom there are explicit circumstances raising suspicion as to his complicity in the crime.
2 Cr. Appeal (DB) No. 859 of 2019
5. The only point argued by Mr. Shubham Gupta, the learned counsel for the appellant, is based on the judgment in "P. Vijayan v. State of Kerala" (2010) 2 SCC 398. The learned counsel submits that if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the accused is entitled for discharge.
6. In "P. Vijayan v. State of Kerala" (2010) 2 SCC 398 the Hon'ble Supreme Court has held as under:
"10. Before considering the merits of the claim of both the parties, it is useful to refer to Section 227 of the Code of Criminal Procedure, 1973, which reads as under:
"227. Discharge.--If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts."
7. TPC is a breakaway faction of CPI(Maoist). It is active in the districts of Latehar, Chatra, Palamau etc. Extortion from development projects and contractors constitute the major source of its income. By Gazette Notification dated 22nd May 2009, the Government of Jharkhand declared TPC as unlawful and proscribed organization since the date of its establishment, under section 16 of the Criminal Law Amendment Act, 1908. It appears that to start the work at Amrapali Coal Mines some arrangements were arrived at between different stake-holders. Before registration of Tandwa PS Case No. 02/2016, a raid was conducted in the intervening night of 10th/11th January 2016 at the house of Vinod Kumar Ganjhu. In course of search, several incriminating articles including Rs. 91,75,890/- in cash were recovered from an almirah in the house of Vinod Kumar Ganjhu. He suffered a disclosure statement that he was collecting extortion money for TPC supremo Gopal Singh Bhokta @ Brajesh Ganjhu and other persons. At 3 Cr. Appeal (DB) No. 859 of 2019 the time of search, Birbal Ganjhu and Munesh Ganjhu were in the house of Vinod Kumar Ganjhu and they made a confession about their proximity with TPC. On personal search of Birbal Ganjhu and Munesh Ganjhu pistols and live cartridges were recovered. Pursuant to disclosures made by Vinod Kumar Ganjhu a search was conducted at the house of Pradeep Ram and several incriminating materials including Rs. 57,57,710/- in cash were recovered.
8. Tandwa PS Case No. 02 of 2016 was lodged on 11 th January 2016 for commission of the offence under section 414, 384, 386, 387 and 120B IPC, section 25 (1-b)(a), 26 and 35 of the Arms Act and section 17(1) (2) of the CLA Act. In course of investigation, offence under sections 16, 17, 20 and 23 of UA(P) Act was added and investigation of the case was entrusted to NIA. Consequently, Tandwa PS Case No. 02 of 2016 was renumbered as RC- 06/2018/NIA/DLI dated 16th February 2018 which corresponds to Special (NIA) Case No. 03 of 2018. A charge sheet was filed against Gopal Singh Bhokta @ Brajesh Ganjhu, Mukesh Ganjhu, Kohram Jee and in the subsequent supplementary charge sheet sixteen persons were sent up for trial - one of them was Sanjay Jain. We are informed that a second supplementary charge sheet has also been filed against five persons.
9. The allegation against the petitioner is that he entered into a conspiracy for commission of the crime which includes offence under sections 414, 384, 109 and 120B IPC. According to NIA, it has collected materials which would show that: (i) the appellant was meeting Akraman Jee; (ii) the appellant collected Rs.200/- in cash; (iii) the witnesses said that the appellant was collecting money from the transporters and DO holders for making payment to TPC; (iv) the appellant was present in the forest in the company of Akraman Jee when the witnesses went there for a meeting; (v) the appellant took help of TPC when the Truckers' association gave a call for indefinite strike; and (vi) the disclosure statement of the appellant.
10. In support of the case against the appellant, NIA has relied on the statement of witnesses and several documents.
11. Mr. Shubham Gupta, the learned counsel for the appellant refers to paragraph No. 40 of the order passed in Cr. Appeal (DB) No. 222 of 2019 to seek support to the argument that two views are possible in this 4 Cr. Appeal (DB) No. 859 of 2019 case. The learned counsel further submits that payment of levy and funding both may not have the same meaning and in any case involuntary act of payment of levy cannot be construed funding by the appellant.
12. On the other hand, Mr. A.K. Das, the learned counsel for NIA would submit that the observations made in Cr. Appeal (DB) No. 222 of 2019 are primarily based on the judgment in "Sudesh Kedia v. Union of India" (2021) 4 SCC 704, wherein the Hon'ble Supreme Court has made it clear that the findings recorded in the said case are restricted only for the purpose of grant of bail.
13. Mr. A.K. Das, the learned counsel for NIA, has placed reliance also on the judgment in Cr. Appeal (DB) No. 117 of 2020 and analogous cases, which were filed for quashing of the order taking cognizance in Special (NIA) Case No.03 of 2018(S) against Amit Agarwal @ Sonu Agarwal, Vinit Agarwal @ Vineet Agarwal and Mahesh Agarwal and which have now been dismissed.
14. At the outset, we may point out that the observations in paragraph No. 40 of Cr. Appeal (DB) No. 222 of 2019 were in the context of section 18 of UA(P) Act which provides that if a person abets, advocates, incites etc. a Terrorist act or any act preparatory to the commission of a Terrorist act, he shall be liable. On a reading of the charge sheet and the materials on which NIA seeks to place reliance against the appellant, we find that the learned Special Judge has rightly held that there are sufficient materials to prima facie establish complicity of the appellant in the crime. The learned Special Judge has held that at this stage proof of the allegations or outcome of the trial are not the requirements in law rather all that the prosecution is required to show that there are materials prima facie showing grave suspicion against the accused. The learned counsel for the appellant did not even attempt to demonstrate that any of the observations of the learned Special Judge was factually incorrect.
15. In "Supdt. and Remembrancer of Legal Affairs v. Anil Kumar Bhunja" (1979) 4 SCC 274 the Supreme Court has observed as under:
"18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this 5 Cr. Appeal (DB) No. 859 of 2019 Court in State of Bihar v. Ramesh Singh the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence."
16. We may also indicate that no argument has been advanced by the learned counsel for the appellant whether from the materials collected during the investigation the offence under sections 384, 414, 109, 120B IPC is made out or not. Mr. A.K. Das, the learned counsel for NIA has rightly contended that whether the acts attributed to the appellant were voluntary or involuntary is a question of fact which can be decided only when evidence is laid during the trial.
17. For the aforesaid reasons, we do not find merit in this criminal appeal and, accordingly, Cr. Appeal (DB) No. 859 of 2019 is dismissed.
18. Let a copy of the judgment be communicated to the trial Court through 'FAX'.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated-31st January, 2022 Sharda/S.B.-NAFR