Delhi District Court
State vs Gopal Mishra @ Ashwani @ Samar & Another on 4 July, 2011
IN THE COURT OF MS. SANTOSH SNEHI MANN ADDITIONAL SESSIONS JUDGE (CENTRAL) TIS HAZARI COURTS, DELHI State V/s Gopal Mishra @ Ashwani @ Samar & Another SC No. : 02/2011 FIR No. 23/2010 U/s 10/13/18/20 Unlawful Activities (Prevention) Act PS : Special Cell, Lodhi Colony ORDER ON CHARGE :
Both the accused have been chargesheeted under Sections 10/13/18/20 Unlawful Activities (Prevention) Act (hereinafter referred as "UAPA").
2. The brief facts of the prosecution story as per the charge sheet are that around a week before 26.04.2010 an information was received at PS Special Cell, Lodhi Colony from Central Intelligence Agency that one Ashwani, a 40 years old person, a member of Communist Party of India (Maoist) {hereinafter referred as "CPI (Maoist)"}, a banned terrorist organization under the UAPA has been actively promoting and executing party activities in Delhi. This information was developed through sources to trace the above person and on 26.04.2010 at about 09.00 am a telephonic information was received by Inspector Devender Singh State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 1 of 21 of Special Cell that Ashwani would come near Shyam Lal College, Shahdara, Delhi to meet his contact at about 11.00 am. On the basis of this information a police party was constituted including Inspector Devender Singh, Inspector Satender Sangwan and Inspector Videsh Singhal besides others, which proceeded to the disclosed spot in different vehicles.
3. At about 10.40 am the police party reached near Seelampur Metro Station where informer met Inspector Devender Singh. Efforts were made by the police to join public persons in the raiding party, but none agreed. Police party took position around Shyam Lal College at about 10.50 am.
4. At about 11.05 am accused was seen coming on foot from Shahdara side. He was carrying a handbag and stood near Shyam Lal College in wait of someone. Informer identified the accused as Ashwani, as a member of CPI (Maoist). After about 10 - 15 minutes, when accused tried to walk away from the spot, he was apprehended by the police party.
5. The black colour laptop bag in possession of accused Gopal Mishra @ Ashwani @ Samar was found containing various, documents of CPI (Maoist) activities including - "R. J. Samiksha", th proceedings of NRB (reportedly Northern Regional Bureau) 8 State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 2 of 21 meeting from 10th to 12th August 2009, annual report of NRB (2009) dated 31.01.2010 and March 2010 issue of magazine "Samayanter", allegedly a mouth piece of CPI (Maoist) activities besides a CD containing material related to CPI (Maoist).
6. Accused Gopal Mishra @ Ashwani @ Samar is alleged to have revealed after his apprehension that he is an active member and city organizer for Delhi Region of CPI (Maoist) and his task is to motivate the working class people to join CPI (Maoist) for which he was working on the direction and guidance of senior workers and leaders of the organization.
7. In the above facts and circumstances, Inspector Devender Singh prepared a rukka on the basis of which FIR No. 23/2010 was registered under Sections 10/13/18/20 of UAPA at PS Special Cell, Lodhi Colony and investigation was carried out by ACP L. N. Rao of Special Cell.
8. As per the prosecution story, accused Gopal Mishra @ Ashwani @ Samar disclosed during investigation that while studying in Jadhavpur University at Kolkatta he was inspired by the ideology of Communism and was actively involved in college politics. In the year 2001 he started working for Delhi Area committee on the directions of CPI (PW) Leaders. In the year State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 3 of 21 2004 he was given the responsibility of OkhlaNoida Area Committee and after amalgamation of Maoist Communist Centre (MCC) and Peoples War and formation of CPI (Maoist) he continued with the responsibility of Organizer of OkhlaNoida Faridabad Committee in the year 2006. Accused revealed the names of his associates and other party members, who gave him instructions from time to time and disclosed that he had been working in Delhi Region for propaganda of party by organizing meetings, influencing people to join the party and other promotional & party related activities. In order to influence the youth to join the party, he was visiting Delhi University and colleges to hold meetings and seminars, where literature was distributed besides other promotional activities.
9. It was revealed by accused Gopal Mishra @ Ashwani @ Samar that his wife coaccused Kanchan Bala @ Anu was also working for the cause of masses and consequently accused Kanchan Bala @ Anu was arrested on 27.04.2010, from their nd residential room at 2 Floor of House No. 1/4649/82A, Gali No. 3, Budh Bazar, New Modern Shahdara. She revealed that she had been working to promote and propagate communist ideology since the year 1999 and had been actively working to strengthen the State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 4 of 21 organization by motivating common people to join. She came in contact with coaccused Gopal Mishra in the year 2004 at Calcutta during a discussion and married him in the year 2005. She revealed that after formation of CPI (Maoist) she alongwith her husband coaccused Gopal Mishra joined this party and they have been working to influence the people to join the organization. She also revealed names of her associates and other party workers.
10. As per the chargesheet, articles recovered from the residential room of the accused persons include a laptop, CDs, DVDs, pendrives, bulk printed and electronic material related to CPI (Maoist) Ideology, working and activities besides notebooks containing proceedings of party activities in the handwriting of both the accused. Recovered material included copy of chargesheet in case FIR no. 58/2009, under Sections 10/13/18/20 of UAPA, PS Special Cell and the joint interrogation report of accused Kobad Ghandy, a letter of one Seema Azad to accused Kanchan Bala and large number of books/booklets of CPI(Maoist) literature.
11. It was revealed during investigation that one Bacha Prasad Singh @ BR @ Balaraj @ Ashokji @ Ganga, an accused in case FIR No. 74/2010 dated 08.02.2010 under Section 120B/121/121A/420/467/468 IPC & 13/18/20/21/23(2) of UAPA, State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 5 of 21 PS Naubasta, Kanpur had disclosed the name of accused Gopal Mishra @ Ashwani as the member of NRB Delhi CCM (City Committee Member). It was also revealed that accused Kanchan Bala @ Anu was associated with one Seema Azad, who has been arrested in case FIR No. 37/2010 dated 06.02.2010, under Section 120B/121/121A IPC & 13/18/20/21/23(2) of UAPA, PS Khuldabad, Allahabad (UP). The laptop recovered from the residential room of the accused persons was found to be purchased by one Amit Kumar R/o Jharkhand, who could not be traced due to incomplete address. It was revealed that the laptop was given for service at HP Service Center at Okhla Industrial Area, Delhi on 02.09.2008 by one Arvind R/o Moulad Band, Gali no. 35, New Delhi, who could not be traced.
12. I have heard Mr. Rajiv Mohan, Addl. PP for the State and Mr. V. K. Ohri, defence counsel for both the accused persons. I have carefully gone through the material on record.
13. Ld. Addl. PP for the State submitted that material recovered from the possession of accused Gopal Mishra @ Ashwani @ Samar and the residential room of the accused persons show their involvement in spreading hatred against the democratically elected Government and inciting violence as State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 6 of 21 members of CPI(Maoist), a banned organization under UAPA. Besides other material, reference is made to a document titled "Details of PLGA Actions from December 2007 to December 2008".
14. It was argued on behalf of accused persons that possession of material and literature of an ideology to bring about a change in the system does not constitute an offence and the document containing details of the PLGA activities relate to the period prior to June, 2009 when CPI (Maoist) was notified as a terrorist organization, though correctness of the details given in the document is contested. It was argued that involvement of the accused persons in social work for empowerment of weaker sections of the society cannot make them criminals in the eyes of law and further that both the accused deserve to be discharged as mere membership of a banned organization is not an offence in the light of recent decisions of the Apex Court in "Arup Bhuyan V/s State of Assam (2011) 3 Supreme Court Cases 377", "Indra Das V. State of Assam (2011) 3 Supreme Court Cases 380", "Binayaksen V/s State of Chhatisgarh" in Special Leave to Appeal (Crl.) No. 2053/2011 decided on 15.04.2011 and "Piyush @ Bubun Guha V/s State of Chhattisgarh, in Special State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 7 of 21 Leave to Appeal (Crl.) No. 4387/2011 decided on 31.05.2011.
15. In order to appreciate the rival contentions on framing of charge, it is necessary to go through the principles laid down by the Apex Court for framing of charge against the accused and scope of enquiry for this purpose.
16. In "State of Bihar V/s Ramesh Singh, (1977) 4 SCC 39" it was held by the Apex Court that at the stage of framing of charge it is not obligatory for the the judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame the charge.
17. In "State of Delhi V/s Gyan Devi & Others, (2000) 8 SCC 239" it was reiterated by the Supreme Court that at the stage of framing of charge the Trial Court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the Court to consider sufficiency of the materials to establish the offence alleged against the accused persons.
18. In "Soma Chakravarty V/s State through CBI, AIR State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 8 of 21 2007 SC 2149" it was held that at the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage.
19. In "Onkar Nath Mishra & Others V/s State (NCT of Delhi) & Another (2008) 2 SCC 561" it was held that at the stage of framing of charge, what needs to be considered is whether there is ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out.
20. The main argument in defence of the accused persons is that recovery of alleged literature and material about CPI (Maoist) Ideology and activities from accused Gopal Mishra @ Ashwani @ Samar and from the residential room of both the accused persons cannot give cause for prosecution in view of Arup Bhuyan (Supra), Indra Das (Supra), Binayaksen (Supra) and Piyush @ Bubun Guha (Supra) because mere membership of a banned terrorist organization is not an offence.
21. In rebuttal, it was argued by Ld. Addl. PP for the State that constitutional validity of the Terrorist & Disruptive Activities (Prevention) Act, 1987 (hereinafter referred as "TADA") has been State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 9 of 21 upheld by the Constitution Bench of the Apex Court in "Kartar Singh V/s State of Punjab, 1994 (3) SCC 569", which included a provision akin to Section 20 of UAPA and therefore, as long as Section 20 of UAPA is not struck down or held unconstitutional by a larger bench of the Supreme Court, membership of a terrorist gang or terrorist organization would continue to invite penal consequences under section 20 of UAPA.
22. In "Arup Bhuyan (Supra) conviction of the accused in TADA for being a member of ULFA, a banned organization, was setaside by the Apex Court, where the only material produced by the prosecution was the confession statement of the accused made before the Superintendent of Police. The relevant paras of the judgment are :
7. In the instant case, the prosecution case mainly relies on the alleged confessional statement of the appellant made before the Superintendent of Police, which is an extrajudicial confession and there is absence of corroborative material. Therefore, we are of the opinion that it will not be safe to convict the accused on the basis of alleged confessional statement.
8. For the reasons stated above, we are in agreement with the impugned judgment so far as it has taken the view that the confessional statement in question cannot be acted upon as the sole basis for conviction of the appellant. However, the TADA Court State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 10 of 21 has convicted the appellant under Section 3(5) of TADA which makes mere membership of a banned organisation, criminal. Although the appellant has denied that he was a member of ULFA, which is a banned organisation, even assuming he was a member of ULFA it has not been proved that he was an active member and not a mere passive member.
12. We respectfully agree with the above decisions, and are of the opinion that they apply to India too, as our fundamental rights are similar to the Bill of Rights in the US Constitution. In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in the light of our observations made above.
Hence, mere membership of a banned organization will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence. Hence, the conviction of the appellant under Section 3(5) of TADA is also not sustainable.
(Emphasis supplied)
23. In Indra Das (Supra) also the accused was convicted under TADA and there was no evidence against him except his confession statement. Conviction was setaside by the Apex Court relying on Arup Bhuyan (Supra). Relevant text of the judgment is:
5. In Arup Bhuyan case we have stated that mere membership of a banned organization cannot incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence, or does an act intended to create State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 11 of 21 disorder or disturbance of public peace by resort to imminent violence. In the present case, even assuming that the appellant was a member of ULFA which is a banned organization, there is no evidence to show that he did acts of the nature above mentioned. Thus, even if he was a member of ULFA it has not been proved that he was an active member and not merely a passive member. Hence the decision in Arup Bhuyan Case squarely applies in this case.
27. Similarly, we are of the opinion that the provisions in various statutes i.e. Section 3(5) of TADA or Section 10 of the Unlawful Activities (Prevention) Act which on their plain language make mere membership of a banned organisation criminal have to be read down and we have to depart from the literal rule of interpretation in such cases, otherwise these provisions will become unconstitutional as violative of Articles 19 and 21 of the Constitution. It is true that ordinarily we should follow that literal rule of interpretation while construing a statutory provision, but if the literal interpretation makes the provision unconstitutional we can depart from it so that the provision becomes constitutional.
(Emphasis supplied)
24. Judgments in Binayaksen (Supra) and Piyush @ Bubun Guha (Supra) are orders granting bail to the convicts pending appeal against conviction. As these judgments do not contain any observations or findings on merits, they are not relevant in the present context.
25. Arup Bhuyan (Supra) and Indra Das (Supra) are State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 12 of 21 relevant in the present case as issue of "membership" of a "banned organization" was involved in those cases and there are specific findings of the Supreme Court on the aspect. Though, decision of the Constitution Bench in Kartar Singh (Supra) is not referred in Arup Bhuyan (Supra) and Indra Das (Supra), there is no conflict between the decision of the Constitution Bench in Kartar Singh (Supra) and later decisions of the Apex Court in Arup Bhuyan (Supra) and Indra Das (Supra). While Kartar Singh (Supra) upheld the constitutional validity of various provisions of TADA, including the provisions making membership of terrorist gang or terrorist organization an offence, in Arup Bhuyan (Supra) which has been followed in Indra Das (Supra), "membership of the banned organization" has been interpreted for the purposes of penal consequences. Therefore, in order to prosecute the accused persons for being members of CPI (Maoist), a banned terrorist organization under UAPA, prosecution has to show that being members of CPI (Maoist), they resorted to violence or incited people to violence or created public disorder by violence or incitement to violence.
26. As per the material on record, documents recovered from the possession of accused Gopal Mishra @ Ashwani @ State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 13 of 21 Samar after his apprehension on the basis of secret information, include a document titled "R. J. Samiksha", allegedly a document of CPI (Maoist) activities in Delhi. This document includes activities of various suborganizations working in different areas like City Committee, Okhla Area Committee, Palam Area Committee and "Majdoor Sangthan" etc. It also includes modes to carry out the party activities secretly such as members to operate without legal identity, holding of party meetings at the residential premises of committee members and reference to fellow members and organizations in coded language etc. The recovered documents include proceedings of "NRB 8th meeting from 10th to th 12 August, 2009". Agenda of meeting includes "Homage to Martyrs" and corresponding resolution finds mention of "red revolutionary homage" to over 166 comrades including PLGA comrades and fighters and vow to fulfill the dreams of martyrs by expanding "guerrilla war" throughout the Northern India and call to party ranks to emulate communist qualities of martyrs, continue and accelerate revolutionary war with utmost determination. Resolution No. 4" includes assessment of losses, enemy repression (implying State action) and need to build up and continue revolutionary war confronting the enemy repression State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 14 of 21 through Guerrilla Wars. Many references in the resolutions are in coded words and Resolution No. 13 includes call for selection of Comrades, particularly from SCs with the military capabilities and for imparting military training to them. Resolution No. 19 is about celebration of PLGA day in the States, hailing victories of PLGA and campaign for recruitment in PLGA.
27. Bulk recovery of printed and electronic material from the nd residential room of the accused persons at 2 Floor of House No. 1/4649/82A, Gali No. 3, Budh Bazar, New Modern Shahdara include a document titled "Details of PLGA actions from December, 2007 to December, 2008" in various states. This document in tabular form contains the details of 32 incidents in Bihar, Jharkhand & Chhattisgarh, 52 incidents in the area of "DK", 05 incidents in "AOB special zone", 03 incidents in "3 U Special Area", 08 incidents in West Bengal and 03 incidents in Orissa besides others. The information is compiled in the table under the heads of Incident, Area, Date, Losses on enemy side, Weapons seized and our losses. In the column of "losses on enemy side", number of police and paramilitary personnels killed and injured is given besides informers, CID and political targets. The details of police and paramilitary personnels killed and injured include State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 15 of 21 officials of STF, GRP, CRPF, BSF and SPO etc. Column of "Political Target" includes name of R. S. Munda, JD (U) Leader. Column of "weapons seized" shows number of weapons seized in the incidents including AK47, SLR besides seizure of foodgrains by raiding a FCI Godown in District Chhattisgarh, loot of Rs. 5 Crores with 01 Kilogram gold by attacking a ICICI Bank vehicle in Ranchi, seizure of 20 Tonnes of explosive in an ambush on explosive vehicle and release of 299 prisoners in Danthewada Jail break on 16.12.2008. In the column of "Our Losses", Comrades are shown as "Martyrs".
28. The material on record shows that PLGA is a frontal organization of CPI (Maoist). Glorification of PLGA actions killing Government functionaries and members of armed forces and depicting the killings as "Losses of Enemy" amounts to propagating "terrorist acts" and "unlawful activities".
29. The recovered material includes number of press releases of CPI (Maoist), the contents of which besides giving a view point of the party on a political issue or an incident, has the tendency to incite hatred and dissatisfaction against Government st of India. It is noteworthy that one of the press releases is dated 1 May 2010 i.e after the arrest of the accused persons. This press State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 16 of 21 release is by "Coordination Committee of Maoist parties and organizations of SouthAsia (CCOMPOSA)" of which CPI (Maoist) is shown as a constituent party. Besides there is a document titled "Political Statement of CCOMPOSA on the Current Situation and Tasks", which is also bears the date - May Day 2010. These documents besides talking about strengthening of revolutionary movement in South Asia also talks about strengthening the revolutionary struggles and initiatives through peoples war against Indian State by hailing activities of CPI (Maoist).
30. The documents, "R. J. Samiksha", 8th meeting from 10th to 12th August, 2009, annual report of NRB (2009), details of PLGA actions from December 2007 to December 2008 and post dated press release for the May day 2010 are of such nature which would not be in possession of person, who is simply influenced by a particular ideology. These documents are "exclusive" in the sense that they would be in circulation and in possession of only such person who are actively involved in the party activities of CPI (Maoist).
31. The notes in the handwriting of accused persons in the three registers/notebooks recovered from the residential room of the accused persons are the proceedings of group meetings held State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 17 of 21 regularly by the accused persons during the year 2009. The agenda and proceedings of these meetings show that the meetings were held as a party activity to propagate the revolutionary ideology of CPI (Maoist) for change in the system through militancy and strategic armed struggle. The handwritten notes reveal that meetings were held regularly by a group of persons to strengthen party activities and to work out the strategies to aggressively enforce CPI (Maoist) ideology through armed struggle and militancy. Discussions in the meetings included strategies for release of fellow party workers lodged in jails and concern about party members not attending Cell and PLGA Meetings. The text of proceedings recorded in the registers repeatedly include the agenda "Homage to Martyrs", indicating Homage to the party militants killed in government action. The registers contain substantial discussions about promoting party ideology through various means including visits to academic institutions to motivate the youth to join the party and distribution of literature.
32. The registers recovered include one "Long Exercise Book - Neelam" maintained by accused Kanchan Bala @ Anu, which contained the details of daytoday expenses incurred by State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 18 of 21 the accused persons and about details of money distributed to different person, some indicated in codes.
33. The handwritten notes of the accused persons in the three registers seized appear to be running record of group meetings. This handwritten record when considered in view of other recoveries, primafacie shows that both the accused persons were holding regular meetings to work out the strategies to advocate, propagate, mobilize, incite and abet people for violence by spreading disaffection against the Government. Their association appears as accomplices and partners in the activities beyond matrimony.
34. The magazines, books and booklets recovered from the residential room of the accused persons in bulk besides promoting ideology of CPI (Maoist), lay emphasis on capture of political power in the country by armed rebellion. The fact that number of copies of the books/booklets have been recovered from the residential room of the accused indicates that they were kept for the purposes of circulation and not merely for personal reading. Text of the books speak in strong words about bringing political and social change in the country through violence and by spreading hatred against the democratically elected Government. State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 19 of 21
35. The judgments in Arup Bhuyan (Supra) and Indra Sen (Supra) do not say that it is imperative for a case to be covered under the penal provisions of "membership of a terrorist gang or a terrorist organization" must always and invariably have direct evidence showing the accused himself or herself to resort to active violence or incite others to violence etc. The judgments do not lay down as an absolute law that the acts showing intention to bring about public disorder or disturbance of public peace as a chain reaction will not attract penal consequences for being member of a terrorist gang or organization.
36. Test for appreciation of evidence to draw conclusions and inferences at the stage of framing of charge is entirely different than the stage of final analysis after conclusion of trial. Allegations against the accused persons in the present case are not merely based on their confessional statements, as was the case in Arup Bhuyan (Supra) and Indra Sen (Supra). These are based on the bulk material recovered from their residential room and the documents recovered from the possession of accused Gopal Mishra, which speaks loud and clear about intention of the accused persons to advocate and incite violence for which law does not require them to hold on to the gun themselves. Inciting State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 20 of 21 people to resort to violence and to hold on to the guns would squarely be covered under the mischief of their acts of conspiracy, as active members of CPI (Maoist), a terrorist organization under UAPA and to advocate, abet and incite people to take to violence and create public disorder with intent to threaten the unity, integrity, security or sovereignty of India.
37. Therefore, prima facie offences punishable under sections 18, 13 and 20 of the Unlawful Activities (Prevention) Act, 1967 are made out against both the accused persons. Announced in the open Court (Santosh Snehi Mann) on 4th July, 2011 Additional Sessions Judge (Central) Tis Hazari Courts, Delhi State V/s Gopal Mishra @ Ashwani @ Samar & Another; FIR No. 23/2010 Page No. 21 of 21