Jharkhand High Court
Fuleshwar Gope vs Union Of India on 21 March, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No.443 of 2022
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Fuleshwar Gope, aged about 32 years S/o Shankar Gope, Resident of
Village-Chootka Regre, P.O.-Lapa, P.S.-Jariyagarh, District-Khunti,
Jharkhand
..... Petitioner
Versus
1. Union of India, through The Secretary, Ministry of Home Affairs,
Internal Security-I Division, North Block, New Delhi, P.O.-
Chanakya Puri, P.S-North Avenue, New Delhi-110001.
2. Union of India, through National Investigation Agency, Ranchi.
3. State of Jharkhand through the Principal Secretary, Department of
Home, Prisons & Disaster Management, Project Building, Dhurwa,
P.O. & P.S.-Dhurwa, District-Ranchi ..... Respondents
CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
.....
For the Petitioner : Mr. Niranjan Kumar, Advocate
For the State : Mr. Gaurav Raj, AC to AAG-II
For the NIA : Mr. Amit Kumar Das, Advocate
: Mr. Saurav Kumar, Advocate
.....
C.A.V. on 02.03.2023 Pronounced on 21.03.2023
Per Sujit Narayan Prasad, J.
This writ petition has been filed under Article 226 of the Constitution of India inter-alia for the following reliefs:-
(I) For quashing the sanction vide letter no.06/Avi-
01/21/2017-2637 order dated 12.05.2017 (Annexure-5) has been granted by the Principal Secretary, Department of Home, Prisons & Disaster Management, Ranchi to Central Government to accord to Sanction of NIA U/s 45 (2) U.A(P) Act with respect of Bero P.S. Case No.67/2016.
-2-(II) For quashing suo-moto letter No.F.No.11011/51/2017/IS-
IV 16.01.2018 (Annexure-7) issued by under Secretary to the Government of India, Ministry of Home Affairs, Internal Security-I Division, New Delhi to N.I.A. to take over the investigation of Bero P.S. Case No.67/2016 dated 10.11.2016.
(III) For quashing the sanction letter no.11011/51/2017/NIA order dated 22.07.2020 (Annexure-11) issued by the under Secretary to the Government of India, Ministry of Home Affairs, CTCR Division, New Delhi granting sanction to prosecute the Petitioner as Accused No.17 in No.R.C.-02/2018/NIA/DLI.
(IV) For quashing the Cognizance order dated 25.07.2020 U/s 120B of the IPC r/w Section 17, 18, 21 & 22C of U.A(P) Act, 1967, U/s 17 (i) & (ii) of CLA Act 1908 (Annexure-
13) and charge has been framed on 16.03.2021 (Annexure-14) offence U/s 120B of the IPC r/w Section 21 & 22C of U.A(P) Act, 1967, U/s 17 of CLA Act 1908 by the Learned Sri A.K. Mishra NO.1, AJC-XVI cum-Spl. Judge NIA, Ranchi to the petitioner in connection with R.C.-02/2018/NIA/DLI pending in the Court of Learned Sri M.K. Verma, Spl. Judge NIA, Ranchi.
2. The brief facts of the case as per the prosecution story is that the petitioner is a poor farmer and works as Munshi for a contractor on daily wage basis. He does not have any criminal antecedents.
The allegations against the petitioner are that he is an associate of P.L.F.I. acquainted with the facts that Dinesh Gope @ Kuldeep -3- Yadav @ Banku (A-6/absconder) is a terrorist and Chief of P.L.F.I. and collects/raises levy through extortion. The petitioner has criminally conspired with the members of P.L.F.I., an unlawful association and terrorist gang proscribed by the State of Jharkhand, namely, Dinesh Gope (A/6), Sumant Kumar @ Pawan Kumar (A/7), Hira Devi @ Anita Devi(A/14).
On direction of Dinesh Gope @ Kuldeep Yadav @ Banku, the petitioner had formed a company namely, M/s Shiv Shakti Samridhi Infra Pvt. Ltd. (A/20) along with the partnership of Hira Devi @ Anita Devi (A/14).
The petitioner criminally conspired to directly or indirectly raise or collect funds, either from legitimate or illegitimate sources or persons knowing fully well that such funds are likely to be used by P.L.F.I., a terrorist gang, for their nefarious/terrorist activities. The petitioner, on the direction of Dinesh Gope collected the amount through extortion and channelized it into the bank account of M/s Shiv Shakti Samridhi Infra Pvt. Ltd.
The petitioner, on the direction of Dinesh Gope and with the association of Sumant Kumar and Hira Devi @ Anita Devi was deeply involved in the larger conspiracy and in the commission of the instant crime and was channelizing the extorted amount as per the plan of P.L.F.I. On 10.11.2016 at 8:30 p.m., an FIR bearing P.S. Case No.67 of 2016, registered at Bero Jharkhand against Binod Kumar (A-1), Chandra Shekhar Kumar (A-2), Nand Kishore Mahto (A-3) and Mohan Kumar (A-4), Yamuna Prasad (A-5) & A-6 (Dinesh Gope), who is P.L.F.I. Chief u/s 212, 213/34, 414 of the I.P.C. and u/s 13, 17, 40 of -4- U.A.(P) Act, 1967 & u/s 17 of Criminal Law Amendment Act on the allegation that a sum of Rs.25.38 Lakhs (old, demonetized notes/currency) were sought to be deposited in S.B.I. Bero-Branch, Jharkhand by P.L.F.I Chief/Dinesh Gope.
In this F.I.R., the prosecution alleged that information was received that the supremo of P.L.F.I. was trying to get crime proceeds converted into white money. Around 3:15 p.m., the Police apprehended the accused persons above near S.B.I. Bank Ranchi. Rs.25,38,000/- and other incriminating materials were seized. During custodial interrogation, apprehended accused persons purportedly confessed that the recovery amount is extorted cash derived in the form of the levy by the P.L.F.I., and they were trying to deposit the same in the account of M/s Rekha Petroleum.
On 12.11.2016, the learned Judicial Magistrate First Class, Ranchi remanded the F.I.R. named accused persons (A-1 to A-6) in sections pertaining to U.A.(P) Act as alleged in aforesaid F.I.R. dated 10.11.2016 bearing P.S. Case No.67 of 2016 registered at Bero, Jharkhand.
On 09.01.2017, the charge-sheet has been submitted bearing charge-sheet no.01/2017 before the Judicial Magistrate First Class, Ranchi under Sections 212, 213/34, 414 of the IPC, under Section 17(ii) of the C.L.A. Act and under Sections 13, 17 and 40 of U.A.(P) Act. However, the petitioner has not been named in the FIR or in charge-sheet no.01/2017 dated 09.01.2017. The Judicial Magistrate First Class, Ranchi took cognizance of offences U/s 212, 213/34, 414 of I.P.C and U/s 17(ii) of the Criminal Law Amendment Act and U/s 13, 17 and 40 of U.A.(P) Act pertaining to Bero P.S. Case No.67 of -5- 2016 corresponding to G.R. Case No.6423 of 2013. After cognizance having been taken by Judicial Magistrate vide order dated 09.01.2017, the Central Government has taken decision under the provision of Section 6(5) of the N.I.A Act, 2008 and handed over the investigation of the matter to the National Investigating Agency and in terms thereof, the investigation has been taken up by the National Investigating Agency and case was re-registered as R.C. Case No.02/2018/NIA/DLI under Sections 212, 213, 414/34 of the I.P.C. and under Section 21 of Unlawful Activities (Prevention) Act, 1967 and under Sections 13, 17 and 40 of the U.A.(P) Act arising out of Bero P.S. Case No.67 of 2016 against the FIR named accused persons.
It further appears that in the FIR, the case was registered against Binod Kumar (A-1), Chandra Shekhar Kumar (A-2), Nand Kishor Mahto (A-3), Mohan Kumar (A-4), Yamuna Prasad, Dinesh Gope (A-
6). A-5 is not arrested or investigated by N.I.A. The N.I.A. has started the investigation and found the culpability of the petitioner and accordingly, submitted charge-sheet arraying him as Accused No.17 under Sections 17, 18, 21 and 22C of Unlawful Activities (Prevention) Act, 1967.
An application was filed under Section 45 of the U.A(P) Act for seeking sanction and accordingly, the sanction was granted vide order dated 22.07.2020 issued by the Under Secretary to the Government of India, Ministry of Home Affairs, New Delhi to prosecute the petitioner as Accused No.17 in R.C. Case No.02/2018/NIA/DLI.
The petitioner being aggrieved with the order of sanction and suo-moto decision of the Central Government vide order dated 16.01.2018 and the order taking cognizance dated 25.07.2020 by which -6- cognizance has been taken under Section 120B of the IPC read with Sections 17, 18, 21 and 22C of U.A.(P) Act, 1967, under Section 17(i) & (ii) of CLA Act, 1908 has filed the instant writ petition for quashing the aforesaid orders including the order taking cognizance.
3. Learned counsel for the petitioner has advance his argument that the Central Government has got no power and no authority to suo-moto exercise such power to handover the investigation to the National Investigating Agency once the charge-sheet has been submitted by the District Police basis upon which the cognizance has been taken.
4. The ground has been taken that the order of sanction dated 22.07.2020 is bad in the eye of law, since the same is not in consonance with the provision of Section 45 of the U.A(P) Act, 1967 read with Rule 4 of the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008, (hereinafter referred to as the Rules, 2008) whereby and whereunder, a detailed procedure has been laid to grant sanction with the specific period but the same has not been followed and as such, the order granting sanction, since is not in consonance with the statutory mandate, therefore, the same is not sustainable in the eye of law.
Further, the ground has been taken that since the order of sanction is not in consonance with the law and the cognizance has been taken on the basis of the illegal order of sanction, therefore, the order taking cognizance is also bad in the eye of law, since, as per the provision of Section 45 of the Act, 1967, the provision has been made that no Court shall take cognizance of any offence without the previous sanction of the Central Government or any officer authorized by the Central Government in his behalf and the proper sanction will only be -7- said to be proper sanction if it will be taken in consonance with the statutory mandate.
The writ petition, however, has been filed also for quashing the order of sanction dated 12.05.2017 in connection with Bero P.S. Case No.67 of 2016 but this Court has failed to understand that why the order dated 12.05.2017 has been challenged, since the writ petitioner was neither name in the FIR nor his culpability has been surfaced in course of investigation, since his name is not arrayed in the charge- sheet and even Anneuxre-5, the order of sanction dated 12.05.2017 does not reflect his name so as to prosecute the writ petitioner.
This Court, therefore, has posed a question that why Annexure-5 has been questioned when he is not at all aggrieved with the same.
Learned counsel for the petitioner, upon this, has submitted that he is not pressing the prayer no.(I).
5. Per contra, Mr. Amit Kumar Das, learned counsel appearing for the respondent-NIA has submitted that suo-moto power has conferred to the Central Government to handover the investigation to the National Investigating Agency as provided under Section 6(5) of the N.I.A. Act, 2008 and as such, it is incorrect on the part of the petitioner to take the ground that the order dated 16.01.2018 passed by the Central Government on its suo-moto authority to handover the investigation to the N.I.A. suffers from infirmity.
He has submitted so far as the prayer made regarding the infirmity shown in the order dated 22.07.2020 by referring to the order of sanction that the same has been granted strictly in consonance with the Rules, 2008. It has been submitted that Rule 3 of the Rules, 2008 prescribes the time limit for making a recommendation by the -8- Authority by which it has been provided that 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.
Here in the instant case, the order granting sanction dated 22.07.2020 has been sent before the competent authority on 15.07.2020 to the authority comprising of two members, namely, Dr. Satish Chandra (Retd.) and Dr. T.K. Vishwanathan, Law Secretary (Retd.) constituted vide Ministry's order no.11034/1/2009/IS-IV dated 03.07.2015 for making an independent review of the evidence gathered in course of investigation. The authority vide letter dated 16.07.2020 forwarded its report to Ministry within the time limit and the order of sanction has been granted on 22.07.2020, i.e., the same is within the seven working days as required under the statutory mandate as contained in Rule 3 to the Rules, 2008 and therefore, the ground upon which the sanction order dated 22.07.2020 has been questioned, is having no substance.
It has been submitted so far as the issue of quashing the order of cognizance is concerned that the same also suffers from no infirmity, since, the learned Special Judge has taken cognizance on the basis of the material produced before it and after taking into consideration the material as contained in the charge-sheet as also considering the statement of the prosecution witnesses, the same cannot be said to suffer from an error.
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6. Learned counsel appearing for the respondent-NIA on the basis of the aforesaid ground has submitted that the writ petition is having no merit and as such, the same may be dismissed.
7. We have heard learned counsel for the parties and appreciated their arguments.
8. This Court has gathered from the arguments advanced on behalf of the parties and is of the view that the following issues are to be considered:-
(i) Whether the Central Government has got suo-moto power to handover the investigation to the N.I.A. once the investigation has been completed by the District Police.
(ii) Whether the order of sanction dated 22.07.2020 issued by the Under Secretary to the Government of India in exercise of power conferred under Section 45(2) of U.A.(P) Act, 1967 suffers from any illegality.
(iii) Whether the order taking cognizance against the petitioner under Section 120B of the I.P.C read with Sections 17, 18, 21 & 22C of U.A(P) Act, 1967 and Section 17(i) & (ii) of C.L.A. Act, 1908 suffers from any infirmity.
Issue No.I
9. So far as the issue no.(i) is concerned, the fact is not in dispute that in connection with Bero P.S. Case No.67/2016, the petitioner was not named in the F.I.R. neither his culpability has found in the charge- sheet. The charge-sheet bearing charge-sheet no.01/2017 dated 09.01.2017 has been submitted, thereafter, the learned Judicial Magistrate First Class, Ranchi took cognizance. But at that juncture, the Central Government in exercise of power conferred under Section
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6(5) of the N.I.A. Act, 2008 has handed over the investigation to the N.I.A., therefore, the issue has been raised that once the charge-sheet has been submitted by the District Police, the investigation cannot be handed over by the Central Government on its suo-moto power as conferred to it under Section 6(5) of the N.I.A. Act, 2008, can be said to be proper.
Whether the investigation is to be handed over to the N.I.A. once the charge-sheet has been submitted or the Court took cognizance on the basis of the aforesaid charge-sheet fell for consideration before the Hon'ble Apex Court in the case of Pradeep Ram Vrs. State of Jharkhand & Anr., reported in (2019) 17 SCC 326, wherein, the issue fell for consideration having been raised by the said Pradeep who is also an accused in a Police case being Tandwa P.S. Case No.02 of 2016 in which the investigation after having been completed, the charge- sheet has been submitted with regard to which cognizance has been taken by the Chief Judicial Magistrate and when the matter was handed over by the Central Government on its suo-moto power as conferred under Section 6(5) of the N.I.A. Act, 2008, then the said authority was challenged and while answering the aforesaid issue, Hon'ble Apex Court has been pleased to hold as under paragraph-49 thereof which reads as under:-
"49. 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
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first supplementary charge sheet. We, thus, do not find any lack of jurisdiction in the NIA to carry on further investigation in the facts of the present case."
It is, thus, evident that the Hon'ble Apex Court 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 the NIA to carry on further investigation in the facts of the present case.
In that view of the matter, the Hon'ble Apex Court has already decided about the jurisdiction of NIA, therefore, the further investigation cannot be questioned. Accordingly, the issue no.(i) is hereby answered.
Issue No.II
10. So far as the issue no.(ii) pertaining to legality and propriety of the order of sanction which has been questioned on the ground that Rule 3 of the Rules, 2008 has not been followed, this Court has considered the provision of Section 45(2) of the U.A.(P) Act, 1967 which mandates that no Court shall take cognizance of any offence and the process to that effect has been given under sub-section (2) thereof, whereby and whereunder, it has been provided 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
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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, for ready reference, sub- section(2) of Section 45 of the U.A.(P) Act, 1967 reads as under:-
"(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."
It is, thus, evident that the Sanctioning Authority is required to apply its mind on the basis of the fact gathered in course of investigation by the Investigating Agency.
The other provisions have been made as under Rule 3 of the Unlawful Activities (Prevention) (Recommendation) and Sanction of Prosecution) Rules, 2008, whereby and whereunder, the time limit for making a recommendation by the Authority has been provided which reads 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 it report containing the recommendations to the Central Government [or, as the
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case may be, the State Government] within seven working days of the receipt of the evidence gathered by the investigating officer under the Code."
It is evident from the aforesaid provision that 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. It is, thus, evident that the time limit for making a recommendation by the Authority has been given.
It has been contended that the sanction which has been obtained, is without following the time schedule as provided under rule 3 of the Rules, 2008.
The Rule provides that the sanction is to be granted within seven working days of the receipt of the evidence gathered by the investigating officer under the Code.
11. This Court in order to assess as to whether the process as stipulated under sub rule (2) of Section 45 of the Act, 1967 thereof has been followed or not, has considered the order granting sanction, appended as Annexure-11. It is evident that order of sanction is dated 22.07.2020.
It appears that NIA vide its letter dated 14.07.2020 has recommended for prosecution of the accused persons including the petitioner. It further appears that 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
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report vide Ministry's letter dated 15.07.2020 to the Authority comprising of two members, namely, Justice Dr. Satish Chandra (Retired) and Dr. T.K. Vishwanathan, Law Secretary (Retired) constituted vide Ministry's order no.11034/1/2009/IS-IV dated 03.07.2015 for making an independent review of the evidence gathered in course of investigation.
The Authority vide letter dated 16.07.2020 forwarded its report to the Ministry within the time limit as prescribed in rule 3 of the Unlawful Activities (Prevention) (Recommendation) and Sanction of Prosecution) Rules, 2008 and thereafter, within seven working days, the sanction has been granted. For better appreciation, the relevant contents of the order of sanction dated 22.07.2020 is being referred as under:-
Xxxxx xxxxx xxxxx xxxxx xxxxx
Xxxxx xxxxx xxxxx xxxxx xxxxx
Xxxxx xxxxx xxxxx xxxxx xxxxx
Xxxxx xxxxx xxxxx xxxxx xxxxx
5. 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 15th July, 2020 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
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for making an independent review of the evidence gathered in the course of investigation (term of the Authority extended till 31.07.2021 vide this Ministry's order dated 12.06.2020);
6. And whereas, the Authority vide letter dated 16th July, 2020 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/entities under the relevant sections of law including the Unlawful Activities (Prevention) Act, 1967;
7. And now therefor, the Central Government, after carefully examining the material placed on record and the recommendation of the Authority, is satisfied that a prima facie case is made out against the accused person/entities 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/entities in the Crime No.RC-
02/2018/NIA/DLI of NIA for taking cognizance of the said offence by a court of competent jurisdiction as under:-
Accused Name of Accused Section of Law for which sanction for prosecution is accorded
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A-13 Shakuntala Kumari W/o Sections 17, 18, 21 & 22C Dinesh Gope, D/o Mahavir of the Unlawful Activities Gope (Prevention) Act, 1967 A-14 Hira Devi @ Anita Devi W/o Sections 17, 18, 21 & 22C Dinesh Gope D/o Chamru of the Unlawful Activities Gope (Prevention) Act, 1967 A-15 Jaiprakash Singh Bhuiyan s/o Sections 18, 20 & 21 of Late Gurucharan Singh the Unlawful Activities (Prevention) Act, 1967 A-16 Amit Kumar @ Amit Jaiswal Sections 17, 18, 21 of the @ Amit Kumar Jaiwal, S/o Unlawful Activities Shri Mohan Bhagat @ Mohan (Prevention) Act, 1967 Jaiswal A-17 Fuleshwar Gope S/o Shankar Sections 17, 18, 21 & 22C Gope of the Unlawful Activities (Prevention) Act, 1967 A-18 M/s Bhavya Engicon Pvt. Ltd., Sections 17, 21 & 22C of registered at Registrar of the Unlawful Activities Companies, Jharkhand under (Prevention) Act, 1967 Corporate Identity Number U45201JH2012PTC000770 A-19 M/s Shiv Aadi Shakti Minerals Sections 17, 21 & 22C of Pvt. Ltd., registered at the Unlawful Activities Registrar of Companies, (Prevention) Act, 1967 Jharkhand under Corporate Identity Number
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U14200JH2012PTC000338 A-20 M/s Shiv Shaktisamridhhi Sections 17, 21 & 22C of Infra Pvt. Ltd., registered at the Unlawful Activities Registrar of Companies, (Prevention) Act, 1967 Jharkhand under Corporate Identity Number U14290JH2016PTC008952
12. This Court, therefore, is of the view that time limit for making recommendation by the authority provided under rule 3 of the Rules, 2008, has strictly been adhered to, therefore, the ground which has been agitated in questioning the order of sanction, according to our considered view, is having no substance.
Issue No.III
13. So far as the issue no.(iii), i.e., the legality and property of the order taking cognizance is based upon the order granting sanction dated 22.07.2020 which suffers from infirmity as also non-application of mind.
14. This Court, since, has already answered the issue regarding the time schedule to be followed as per the provision of rule 3 of Rules, 2008 holding therein that the strict adherence to the rule 3 has been made, therefore, on this ground, the order of sanction cannot be said to suffer from an error.
15. This Court in order to assess the legality and propriety of the order taking cognizance has considered the order dated 25.07.2020 and found therefrom that the cognizance has been taken against the petitioner on the basis of the culpability surfaced in the second
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supplementary charge-sheet being Charge-Sheet No.25/2019 dated 24.07.2020.
The Investigating Agency has produced the case diary, the statement of various prosecution witnesses apart from various documents and material exhibits.
It appears from the order by which the cognizance has been taken that the learned Special Judge has perused the case diary as also the statement of various prosecution witnesses apart from the various documents and material exhibits submitted as Annexure to the charge- sheet.
Learned Special Judge has critically examined the fact placed before it and considering the same, the cognizance has been taken by taking note of the culpability which has been surfaced in course of investigation to the effect that terrorist gang, 'PLFI' under the alleged leadership of Dinesh Gope, has been involved in extortion, levy, kidnapping, murder, arson, kidnapping for ransom etc. in as organized manner with the association of its armed cadres in all across the Jharkhand especially in LWE affected districts. The terrorist gang 'PLFI' is a proscribed gang under the CLA Act, 1908, as declared by the Govt. of Jharkhand. The People's Liberation Front of India (PLFI) was formed in 2007 by Dinesh Gope and operating in various districts of Jharkhand and adjoining states. Earlier PLFI was known as Jharkhand Liberation Tiger (JLT). The PLFI has been wreaking havoc in Jharkhand's Khunti, Simdega, Ranchi, Seraikela-Kharsawan, Palamu Districts etc., and has tried to extend its terror activities by spreading fear in the minds of the populace. The PLFI operates through Special Area Committee (SAC), Regional Area Committee (RAC),
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Zonal Area Committee (ZAC), Sub-Zonal Area Commander and Area Commander respectively. Extortion from contractors engaged in development projects constitutes the major source of income for the PLFI. Govt. contractors are also specifically targeted by the Group for extortion/levy. The main source of the PLFI's income comes from extortion and levies.
The learned Special Judge, on the basis of the aforesaid fact has found the prima-facie case having been made out against the accused persons including the petitioner and as such, took cognizance.
16. This Court, before entering into legality and propriety of the judgment, deems it fit and proper to refer certain judicial pronouncements of the Hon'ble Apex Court dealing with the issue to show interference with the order taking cognizance.
The Hon'ble Apex Court in Bhushan Kumar and Another Vrs. 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 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 Vrs. Afroz Mohammed Hasanfatta, [2019 SCC OnLine SC 132], the Hon'ble Apex Court on
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the issue of assigning the detailed reason has been pleased to observe at paragraphs 16, 23 & 25 which read hereunder as :-
"16. 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: (AIR 2008 SC 1213) (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 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
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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 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."
23. 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
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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 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.
25. 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."
17. This Court, after considering the judicial pronouncements as referred hereinabove and taking into consideration the material placed before the learned Special Judge, is of the view that due application of mind has been applied after giving due consideration to the culpability of the petitioner and thereafter, the learned Special Judge has come to the prima-facie view of availability of material laid to take cognizance under Section 120B of the I.P.C. read with Sections 17, 18, 21 and 22C of the U.A.(P) Act, 1967 and under Section 17(i) & (ii) of the C.L.A. Act, 1908.
18. This Court considering the law as settled and taking into consideration the approach of the learned Special Judge while taking cognizance by dealing with the material placed before it by way of case diary, the statement of various prosecution witnesses apart from
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various documents and material exhibits, since has taken cognizance, therefore, is of the view that the same requires no interference.
19. This Court, as per the discussions made hereinabove and after the issue having been answered, is of the view that the writ petition is having no merit, accordingly, the instant writ petition stands dismissed.
(Sujit Narayan Prasad, J.) I agree (Subhash Chand, J.) (Subhash Chand, J.) Rohit/-A.F.R.