Jammu & Kashmir High Court
National Investigation Agency vs Mushtaq Ahmad Malik & Ors on 27 April, 2021
Equivalent citations: AIRONLINE 2021 J AND K 236
Bench: Dhiraj Singh Thakur, Puneet Gupta
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
Crl A(D) No. 10/2020
CrlM No. 707/2020
National Investigation Agency .....Appellant(s)/Petitioner(s)
Through: Mr. Vishal Sharma, ASGI
Vs
Mushtaq Ahmad Malik & ors. ..... Respondent(s)
Through: Mr. S.S. Ahmed, Advocate.
Coram: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
(PER: THAKUR-J)
1. This is an appeal under Section 21 of the National Investigation Agency Act, 2008 against the order dated 02.03.2020 passed by the learned Special Judge, NIA, Jammu to the extent that the accused-respondents herein have been discharged under Section 120-B, 121, 122 and 123 of the Ranbir Penal Code (for short 'RPC') in FIR No. RC- 01/2019/NIA/JMU.
2. Briefly stated the material facts are as under:
NARESH KUMAR 2021.04.27 15:58 I attest to the accuracy and integrity of this document 2 CrlA(D) No. 10/2020.
3. An FIR bearing No. 45/2018 dated 9.7.2018 came to be registered at Police Station, Karnah, District Kupwara under Section 8/21 of the NDPS Act, 7/25 of the Arms Act and 13 of Unlawful Activities (Prevention) Act, 1967.
It appears that on the intervening night of 8th/9th of July, 2018 at Saidpora, Karnah, during search of a Tata Sumo vehicle bearing registration No. JK05A-4359, one bag containing 02 AK 56 rifles, 02 AK- 56 magazines and 56 live rounds were recovered from two persons, namely, Mushtaq Ahmad Malik-respondent No. 1 and Shabir Ahmed Gakhad-respondent No. 2. Further during search of Tata Sumo bearing registration No. JK09-8135, one bag containing 12 sealed packets of brown sugar were seized from two persons, namely, Zakir Hussain Mir- respondent No. 3 and Rafiq Ahmed Magrey-respondent No. 4.
The involvement of two more persons, namely, Alam Bhat- respondent No. 5 and Mohd. Yousuf Khawaja-respondent No. 6 was also disclosed by the above respondents.
The further case was that on the disclosure made by accused, namely, Alam Bhat-respondent No. 5 herein, 02 grenades of Under Barrel Grenade Launcher (UBGL) were seized from his house and further that on the disclosure made by accused-Mohd. Yousuf Khawaja-respondent No. 6, 10 rounds of AK rifle were also recovered from his house.
4. It further appears that the case registered under FIR No. 45 of 2018 was re-registered as RC/01/2019/NIA/JMU at Police Station, NIA, Branch NARESH KUMAR 2021.04.27 15:58 I attest to the accuracy and integrity of this document 3 CrlA(D) No. 10/2020. Office, Jammu on 01.02.2019 pursuant to order dated 30.1.2019 issued by the Govt. of India, Ministry of Home Affairs.
5. Based upon the investigation conducted by the NIA, following offences were made out against each of the accused:
(i) Mushtaq Ahmad Malik (R-1), under sections 120B, 121,122 & 123 of RPC, 8/21 of NDPS Act, 35, 7/25 of Arms Act, and 13, 18, 20 and 23 of UA(P)Act, 1967.
(ii) Shabir Ahamad Gakhad @ Sahanaz (R-2), under sections 120B, 121, 122 123 of RPC, 8/21 of NDPS Act, 35, 7/25 of Arms Act and 13, 18, 20 and 23 of UA(P) Act, 1967.
(iii) Zakir Hussain Mir (R-3) under Sections 120B, 121, 122 & 123 of RPC, 8/21 of NDPS Act, 35, 7/25 of Arms Act, and 13, 18, 20 and 23 of UA(P) Act, 1967 .
(iv) Rafiq Ahamad Magrey (R-4), under sections 120B, 121,122 & 123 of RPC, 8/21 of NDPS Act, 35, 7/25 of Arms Act, and 13, 18, 20 and 23 of UA(P) Act, 1967.
(v) Alam Bhat @ Alama (R-5), under sections 120B, 121,122 & 123 of RPC, 8/21 of NDPS Act, 35, 7/25 of Arms Act, 4 and 5 of Explosive Substances Act, 1908 and 13, 18, 20 & 23 of UA(P) Act, 1967.
(vi) Mohammad Yousuf Khawaja (R-6), under sections 120B, 121, 122 86 123 of RPC, 8/21 of NDPS Act, 35, 7/25 of Arms act, and 13, 18, 20, and 23 of UA(P) Act, 1967.
6. A detailed investigation report in the matter was forwarded to the District Magistrate, Kupwara, who upon going through the investigation report and other documents on record, recorded his satisfaction regarding a prima facie case having been made out against the accused and vide his communication dated 20.7.2018 addressed to the learned Special Judge, NARESH KUMAR 2021.04.27 15:58 I attest to the accuracy and integrity of this document 4 CrlA(D) No. 10/2020. NIA, Jammu requested that the accused be tried for offences under Section 120-B, 121, 122 and 123 of the RPC, 1989.
7. What was stated in paragraphs 5 and 6 of the communication addressed by the District Magistrate, Kupwara to the learned Special Judge, NIA, Jammu reads as under:
"5. And whereas, ongoing through the Investigation Report and other documents on record, I am satisfied that a prima facie case is made out under section 120-B, 121, 122, 123 of Ranbir Penal Code against the above noted accused person as the case may be, The above noted accused may be tried in the offences of Section 120-B, 121, 122, 123 of Ranbir Penal Code, 1989.
6. In view of the above, this complaint may please be admitted in terms of Section 196 Cr.PC."
8. The learned Special Judge, NIA, Jammu upon presentation of the chargesheet, at the stage of framing of charge, by virtue of the order impugned dated 02.03.2020 framed charges against the accused- respondents under Section 13, 18, 20 & 23 Unlawful Activities (Prevention) Act, 35, 7/25 Arms Act, 8/21 NDPS Act & 4/5 Explosive substances Act read with Section 120- B of RPC and at the same time, ordered their discharge under Section 120-B, 121, 122 and 123 RPC.
9. On a perusal of the order impugned, it can be seen that the trial court discharged the accused-respondents in the aforementioned offences on the ground that no cognizance could be taken in the absence of a complaint by the District Magistrate, Kupwara as defined under Section 4(e) of the Code of Criminal Procedure and without any preliminary investigation as NARESH KUMAR 2021.04.27 15:58 I attest to the accuracy and integrity of this document 5 CrlA(D) No. 10/2020. prescribed under the relevant provisions of Section 196-B of the Code of Criminal Procedure.
It was further held that the so called complaint (communication dated 20th of July, 2018) could not by any stretch of reasoning be said to be filed by complying with the provisions of Section 196, 196-A and 196- B of the Code of Criminal Procedure.
10. Learned ASGI, Mr. Vishal Sharma, has vehemently challenged the order impugned inter alia on the ground that the view expressed by the court below was legally unsustainable. Reliance was placed upon two judgments of the Apex Court reported at AIR 1965 SC 1185: Pravin Chandra Mody v. State of Andhra Pradesh and 1996(6) SCC 435 : State of Orissa v. Sharat Chandra Sahu.
11. At this stage, we deem it appropriate to refer to the few legal provisions:
Section 121 of the RPC envisages that whoever wages war against the Government of India or attempts to wage such ware or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine.
Section 121-A of the RPC, envisages that whoever within the State or any other place within or without India conspires to commit any of the offences punishable by section 121 or conspires to overawe, by means of criminal force or the show of criminal force, the Government or the Government of India or any other State Government in India, shall be punished with imprisonment for life or with imprisonment of either NARESH KUMAR 2021.04.27 15:58 I attest to the accuracy and integrity of this document 6 CrlA(D) No. 10/2020. description which may extend to ten years and shall also be liable to fine.
Section 120-B(1) envisages that whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if had abetted such offence. Section 120-B(2) envisages that whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine, or with both.
Section 196-A of the Code of Criminal Procedure, inter alia envisages that no court shall take cognizance of the offence of criminal conspiracy punishable under section 120-B of the Ranbir Penal Code, in a case where the provisions of Section 196 apply, unless upon a complaint made by or under the authority from the Government or some officers empowered by the Government in this behalf.
Section 196-B of the CrPC envisages that in the case of any offence in respect of which the provisions of section 196 or section 196-A apply, a District Magistrate may, notwithstanding anything contained in those sections or in any other part of this Code, order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police NARESH KUMAR 2021.04.27 15:58 I attest to the accuracy and integrity of this document 7 CrlA(D) No. 10/2020. officer shall have powers referred to in section 155, sub-section (3).
12. Section 4(e) of the CrPC as was then applicable to the State of Jammu & Kashmir defines a complaint to mean allegations made orally or in writing to a Magistrate that some persons whether known or unknown has committed an offence. It further envisages that the complaint does not include the report of a police officer.
13. In Bhimappa Basappa Bhu Sannavar v. Laxman Shivarayappa Samagouda & Ors : 1970(1) SCC 665, the Apex Court held that there was no particular form prescribed for filing a complaint nor did the CrPC lay down how the same had to be drafted. It held that all that was necessary to do was that the complaint must disclose commission of an offence and contain necessary facts for a Magistrate to take action.
In this backdrop, it can be seen that the District Magistrate, Kupwara, vide his communication dated 20th of July, 2018 to the learned Special NIA Court, Jammu recorded his satisfaction based upon the detailed investigation report prepared after due investigation that offences mentioned therein against each of the accused whose names figured in the said communication were liable to be prosecuted under Section 120-B, 121, 122 and 123 of the RPC. It was in those circumstances that the communication specifically in paragraphs 5 and 6 requested for admission NARESH KUMAR 2021.04.27 15:58 I attest to the accuracy and integrity of this document 8 CrlA(D) No. 10/2020. of the complaint and for trial of the accused for the offences stated therein.
14. Considering the ratio of the judgment of the Apex Court in Bhimappa Basappa Bhu Sannavar v. Laxman Shivarayappa Samagouda & Ors, it cannot be said that the communication did not par take the character of a complaint as envisaged under Section 196-A of the CrPC. The view expressed by the learned Special Judge NIA Court to that extent is unsustainable in law.
15. Sections 120-B and 121 of the RPC admittedly pertain to offences which are not cognizable. According to Section 155(2) of the Code of Criminal Procedure Svt. 1973 as was applicable then in the erstwhile State of Jammu & Kashmir, specifically envisaged that 'no police officer shall investigate a non-cognizable case without the order of a Magistrate of the first or second class having power to try such case or commit the same for trial'. The Code of 1989 did not have any comparable provision as 155(4) of the Central Criminal Procedure Code, 1973 which provides as under:
"Where a case relating to two or more offences of which at least one was cognizable one, the case shall be deemed to be a cognizable case, notwithstanding the fact that other offences were non-cognizable."
16. That notwithstanding the absence of provision like 155(4) in the Code of Criminal Procedure, 1989, Justice Falshaw, in the judgment reported at AIR 1958 Punjab 172 : Ram Krishna Dalmia v. State, observed that the provisions of Section 155(1) of the Code must be regarded as applicable in those cases where the information given to police is solely about a non- NARESH KUMAR 2021.04.27 15:58 I attest to the accuracy and integrity of this document 9 CrlA(D) No. 10/2020. cognizable offence and further that the Investigating Officer while investigating a cognizable offence could not be possibly debarred from investigating any subsidiary and non-cognizable offence which may arise out of those facts and further that those could also be included in the main investigation report under Section 173 Cr.P.C. This view was subsequently upheld by the Apex Court in Pravin Chandra Mody v. State of Andhra Pradesh : AIR 1965 SC 1185, wherein in paragraph 6, Hidayatullah, J, while referring to the case of Ram Krishna Dalmia held:
"...............Where the information discloses a cognizable as well as a non-cognizable offence the police officer is not debarred from investigating any non-cognizable offence which may arise out of the same facts. He can include that non-cognizable offence in the charge-sheet which he presents for a cognizable offence. We entirely agree. Both the offences if cognizable could be investigated together under Chapter XIV of the Code and also if one of them was a non-cognizable offence.
17. Following the ratio of these judgments, it can be seen that although the offences under Section 120-B and 121, 122 & 123 RPC were non- cognizable yet on account of the closely interwoven facts which might have emerged during the course of investigation arising out of the incident which was being investigated by the police agency in terms of the FIR registered against the accused, it cannot be said that the investigation into the offences which were non-cognizable under Section 120-B and 121 was in any manner contrary to the provisions of Section 155(2) of the Code of Criminal Procedure, Svt. 1989.
NARESH KUMAR 2021.04.27 15:58 I attest to the accuracy and integrity of this document 10 CrlA(D) No. 10/2020.
18. It needs to be noticed that it was pursuant to the decision of the Apex Court on this issue that an amendment was incorporated in 1973 where Section 155(4) was incorporated.
19. The next issue that arises for consideration is whether any preliminary investigation was required to be ordered in terms of Section 196-B CrPC by the District Magistrate before filing the complaint?
On a perusal of Section 196-B, it can be seen that it vests in the District Magistrate the discretion to order a preliminary investigation by a police officer not below the rank of an Inspector in the case of any offence in respect of which offence Section 196 or 196-A apply.
20. By adopting the rule of literal interpretation as regards the interpretation of statutes, the word 'may' figuring in Section 196-B to our mind cannot be construed to mean to as 'shall'. In any case, Section 196-B cannot be construed to mean that an investigation initiated other than by way of a direction emanating from the District Magistrate, could never become the basis of a complaint by the empowered officer in terms of Section 196-A.
21. In the present case, a detailed investigation appears to have been conducted on the basis whereof the District Magistrate has recorded his satisfaction and issued a communication dated 20th of July, 2018 which can be said to be nothing but a complaint in terms of Section 4(e) of the CrPC. If we were to hold that the complaint could have been filed by the District Magistrate only upon the basis of a report obtained in a NARESH KUMAR 2021.04.27 15:58 I attest to the accuracy and integrity of this document 11 CrlA(D) No. 10/2020. preliminary investigation ordered by none else than a District Magistrate himself, then in that case it would make redundant the provisions of Section 156 of the CrPC which authorizes any officer-in-charge of a police station without the order of a Magistrate to investigate any cognizable case which a Court having jurisdiction over the local area within the local limits of such station would have power to inquire into or try under the provisions of Chapter XV. For purposes of reference Section 156 of CrPC is reproduced as under:
"156. Police officer's power to investigate cognizable case.--(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.
(2) No proceeding of police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above-
mentioned."
22. A bare perusal of the aforementioned provisions would make it clear that once information is received in regard to commission of cognizable offence by an officer in charge of a police station, such officer in terms of Section 154 is required to reduce it into writing and is also required to investigate the same in terms of Section 156. Reference in this regard can NARESH KUMAR 2021.04.27 15:58 I attest to the accuracy and integrity of this document 12 CrlA(D) No. 10/2020. also be made to the Apex Court judgment in Lalita Kumari v. Government of Uttar Pradesh & Ors. : (2014) 2 SCC 1. Even otherwise the Apex Court in State of Karnataka and another v. Pastor P. Raju :
(2006) 6 SCC 728 in para 8 held:
"8..................the bar created by the provision is against taking of cognizance by the Court. There is no bar against registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation, as contemplated by Section 173 Cr.P.C. If a criminal case is registered, investigation of the offence is done and the police submits a report as a result of such investigation before a Magistrate without the previous sanction of the Central Government or of the State Government or of the District Magistrate, there will be no violation of Section 196(1-A) Cr.P.C. and no illegality of any kind would be committed."
23. Be that as it may, we have no hesitation in holding : (a) that the investigating agency could have investigated not only the offences which were cognizable but even those which were non-cognizable in terms of the ratio laid down in Ram Krishna Dalmia v. State (Supra); (b) that it was not mandatory for the District Magistrate to first order a preliminary investigation before filing a complaint in terms of Section 196-A of the Code of Criminal Procedure, Svt., 1989; and (c) that the communication dated 20th of July, 2018 can be said to be a complaint in terms of Section 196-A of the Code of Criminal Procedure, Svt., 1989.
24. For the reasons mentioned above, we cannot persuade ourselves to accept the view expressed by the NIA Court to the extent of discharging the respondents for the offences punishable under Section 120-B, 121, 122 and 123 of the RPC. The impugned judgment and order to that extent is, NARESH KUMAR 2021.04.27 15:58 I attest to the accuracy and integrity of this document 13 CrlA(D) No. 10/2020. therefore, set aside. Trial Court is directed to frame the charges against the respondents for commission of offences under Section 120-B, 121, 122 and 123 RPC.
(Puneet Gupta) (Dhiraj Singh Thakur)
Judge Judge
Jammu:
27.04.2021
NARESH
Whether approved for reporting: Yes
NARESH KUMAR
2021.04.27 15:58
I attest to the accuracy and
integrity of this document