Manipur High Court
Oinam Lukhoi Singh vs The State Of Manipur on 22 February, 2022
Author: Sanjay Kumar
Bench: Sanjay Kumar
Digitally signed by
RAJKUMAR RAJKUMAR
BIDYASUN BIDYASUNDER
SINGH
(Through Video Conferencing)
IN THE HIGH COURT OF MANIPUR
DER SINGH Date: 2022.02.22
13:53:44 -08'00' AT IMPHAL
CRIMINAL PETITION NO. 19 OF 2021
Oinam Lukhoi Singh, aged about 51 years,
s/o O. Dhananjoy Singh of Yumnam Huidrom
Khunyal Leikai, Wangoi, A/P Keishampat Mutum
Leikai, P.O. & P.S.-Imphal West District, Manipur.
... Petitioner
-Versus-
1. The State of Manipur, represented by the Chief
Secretary (Home), Government of Manipur, Old
Secretariat, Imphal West, Manipur 795001.
2. The Director General of Police, Manipur, Police
Head Quarters, Imphal West, Manipur,
Pin No. 795001.
3. The Superintendent of Police, Imphal West,
Manipur. Pin No. 795001.
4. The Officer-in-Charge, Mayang Imphal Police
Station, Manipur, Pin.No. 795132
... Respondents
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR
For the Petitioner : Mr. A. Mohendro, Advocate.
For the Respondents : Mr. N. Kumarjit, Advocate General, Manipur.
Date of reserving Judgment : 14.02.2022
Date of delivery of Judgment : 22.02.2022
JUDGMENT (CAV)
(Sanjay Kumar, CJ):
By way of this petition filed under Section 482 Cr.P.C., the petitioner seeks quashing of FIR No.55(08)2009 MI PS registered on the file of Mayang Imphal Police Station under Sections 212, 121, 121-A and 34 IPC; Section 20 of the Unlawful Activities (Prevention) Act, 1967, and Section 25(I-C) of the Arms Act, 1959, in so far as it concerns him.
Page 1 By order dated 24.03.2021, this Court directed that no charge sheet should be filed against the petitioner, if it had not already been filed.
2. Heard Mr. A. Mohendro, learned counsel for the petitioner; and Mr. N. Kumarjit, learned Advocate General, Manipur, for the respondents.
3. It is the case of the petitioner that while he was travelling towards Mayang Imphal on the fateful day, viz., 14.08.2009, in his Gypsy vehicle bearing Registration No. MN-01W-4594, an unknown person stopped him and asked for a lift to the city. The petitioner stated that he obliged him as a good Samaritan but on the way his vehicle was stopped and they were arrested, leading to registration of the subject FIR on 15.08.2009. The petitioner further stated that, as matters stand, he is alleged to have committed offences under Sections 19 and 39 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter, 'the Act of 1967'). He asserted that the only evidence against him is his own alleged confession statement and the confession statement of his original co-accused, the person who he claimed took a lift from him on that day. The petitioner further asserted that his confession was coerced and obtained under duress and it could not be used against him in view of Section 25 of the Indian Evidence Act, 1872 (hereinafter, 'the Act of 1872'). He claimed that no incriminating material was found either in his vehicle or on his person or recovered at his behest. He asserted that Section 19 of the Act of 1967 could not be applied to him as he had never 'harboured' or 'concealed' or 'attempted to harbour or conceal' any person, knowing that such person was a terrorist. He Page 2 reiterated that he had only given a lift on humanitarian grounds and had no knowledge that the said person had any links with a banned outfit. He further asserted that Section 39 of the Act of 1967 has been wrongly applied as none of the ingredients thereof are made out, even prima facie. Lastly, he pointed out that even though more than 11 years had passed since the alleged incident, no charge sheet had been filed till date and contended that continuation of the proceedings against him under the subject FIR is unsustainable in law. It is on these grounds that he sought quashing of the subject FIR against him.
4. The Inspector General of Police (Administration), Manipur, filed an affidavit-in-opposition on behalf of the police authorities. Therein, he stated that on 15.08.2009 at 8.00 p.m., the complainant had lodged a written report stating that on 14.08.2009 at 2.00 p.m., based on reliable information about the movement of senior PLA (People's Liberation Army) cadres towards Imphal from Sekmaijin side, with an intention to disrupt Independence Day celebrations at Imphal, he along with a 12 Maratha Column put up a Road Opening Party (ROP) at Uchiwa Lamkhai. After about 5 minutes, they stopped and checked a Gypsy vehicle and found two occupants therein, namely, Oinam Lukhoi Singh @ Ingo, the petitioner herein, and one Selheibam Joy @ Jayanta @ Malangba. Their interrogation is stated to have revealed that Joy @ Jayanta joined the PLA in 1997 and was actively involved in its activities. Upon the information given by him, arms and ammunition were stated to have been recovered at Laphupat Tera at 10 p.m. on the same day. Thereafter, the subject FIR was registered against both of them and investigation commenced. Both the accused persons Page 3 were stated to have recorded their confession statements, admitting their guilt. Joy @ Jayanta was stated to have revealed that he was holding the rank of Second Lieutenant in the PLA. He implicated others who were working under his command and also admitted his direct involvement in certain encounters. He is stated to have implicated the petitioner by saying that he was used for transporting cadres, incriminating articles, etc. from one place to another and also to give shelter to the cadres. The petitioner himself was stated to have admitted transporting incriminating articles and cadres from one place to another and also giving of support and shelter to the cadres, so as to get work orders from different Government departments after giving a percentage to UGs, being a contractor. He is stated to have communicated the movement of security forces to the cadres of the PLA. Investigation was stated to have revealed that the petitioner's Gypsy vehicle was used to transport UG Cadres, arms and ammunition from one place to another.
The Inspector General further stated that other PLA activists, viz., Sagolshem Bobby Singh @ Ahingcha, Salam Dewan Singh and his wife, Salam (O) Memocha Devi, were also arrested. Arms and ammunition were seized from their premises. Salam Dewan Singh was stated to have revealed that he and his wife were helping the banned PLA organization by giving shelter to the cadres and concealing arms and ammunitions for the last 4 to 5 years. He also admitted helping the cadres by giving information regarding movement of the security forces through phone. According to the Inspector General, prima facie evidence of offences committed under Sections 19 and 39 of the Act of Page 4 1967 had been established against the petitioner and those provisions were accordingly added to the FIR. He concluded by stating that the investigation of the case was complete and the final report was prepared, but for want of prosecution sanction by the State Government, the charge sheet could not be filed till date. Such sanction was stated to have been requested from the Government under letter dated 16.12.2020 but was, as yet, awaited. He further stated that a strong prima facie case had been made out against the petitioner for offences under the aforestated provisions and it would be premature to conclude that there was no case against him and to quash the FIR against him.
5. In his rejoinder to the aforesated affidavit-in-opposition, the petitioner again asserted that he had nothing to do with the banned organization or its cadres. He reiterated his claim that he had merely given a lift to the original co-accused and that he had no connection with him. He again asserted that there was no evidence whatsoever against him to even constitute a prima facie case, as the police could not rely on the so-called confessional statements obtained from him and the co-accused. He pointed out again that even after a lapse of nearly 12 years, there was no progress in the case as a charge sheet was yet to be filed and reiterated his prayer for quashing of the FIR against him.
6. As the affidavit-in-opposition revealed that the final report was ready but was withheld from the jurisdictional Court for want of necessary sanction, a copy thereof was directed to be placed before this Court so as to examine what the prosecution's case was against the petitioner. The Page 5 Superintendent of Police, Imphal West District, Manipur accordingly furnished a copy of the final report, under his letter dated 30.09.2021 addressed to Mr. P. Tamphamani, learned Jr. Government Advocate.
7. Perusal of the said draft final report demonstrates that in so far as the petitioner is concerned, the allegation is that he was assisting the PLA by offering transportation to PLA cadres. Support therefor was drawn from his own confession. Therein, he is stated to have admitted that he was transporting incriminating articles and PLA cadres from one place to another and had also given support and shelter to the cadres, so as to get work from the different Government departments after giving a percentage to the UGs, being a contractor. He is stated to have further revealed that he communicated the movement of the security forces to the cadres of the PLA. The draft final report records that his Gypsy vehicle was used in transporting UG cadres, arms and ammunition from one place to another.
Though 36 witnesses were named in the draft final report, there is no specific reference as to which of the witnesses' evidence would be utilized to prove the case against the petitioner. It is however relevant to note that except for Joy @ Jayanta, the original co-accused of the petitioner who was apprehended in the Gypsy vehicle along with him, none of the other co-accused who came into the picture pursuant to the confession of Joy @ Jayanta, named the petitioner or implicated him in any activities connected with the PLA or its cadres. The case against these co-accused rests on the recoveries effected at Page 6 their behest and need not trouble this Court but it is pertinent to note that no such recoveries were made in so far as the petitioner is concerned.
8. It may also be noted that as per the draft final report, the offences alleged against the petitioner are under Sections 19 and 39 of the Act of 1967. Section 19 of the Act of 1967 is titled 'Punishment for harbouring, etc'. It reads to the effect that whoever voluntarily harbours, conceals or attempts to harbour or conceal any person knowing that such person is a terrorist shall be punishable with imprisonment for a term which shall not be less than 3 years but which may extend to imprisonment for life, and shall also be liable to fine. The word, 'harbour' is not defined in the Act of 1967. As per Section 2(q) of the Act of 1967, words and expressions used but not defined in the Act of 1967 and defined in the Indian Penal Code, 1860, shall have the meanings respectively assigned to them in the Code. Section 52A IPC defines harbour inclusively to mean supplying a person with shelter, food, drink, money, clothes, arms, ammunition or means or conveyance or assisting of a person by any means, whether of the same kind as those enumerated in the Section or not, to evade apprehension. The operative thrust would therefore be that these activities must be with the intention of helping the person to evade apprehension ultimately.
9. In so far as the allegation against the petitioner under Section 19 of the Act of 1967 is concerned, it may be noted that he claimed to have offered a lift to the original co-accused on humanitarian grounds and that he had no prior acquaintance with him. Significantly, there is no evidence of the petitioner, Page 7 who was driving the vehicle when the ROP stopped it for checking, trying to flee or help the co-accused to evade apprehension. There is no mention of any attempt being made by the petitioner, even as per the report of the complainant, to turn the vehicle away or to escape. In effect, there was no attempt by the petitioner to evade apprehension, be if of himself or of the said co-accused.
10. Section 39 of the Act of 1967 details the offence relating to support given to a terrorist organization. Section 39 reads thus: -
39. Offence relating to support given to a terrorist organization.--
(1) A person commits the offence relating to support given to a terrorist organization,--
(a) who, with intention to further the activity of a terrorist organization,--
(i) invites support for the terrorist organization, and
(ii) the support is not or is not restricted to provide money or other property within the meaning of section 40; or
(b) who, with intention to further the activity of a terrorist organization, arranges, manages or assists in arranging or managing a meeting which he knows is--
(i) to support the terrorist organization, or
(ii) to further the activity of the terrorist organization, or
(iii) to be addressed by a person who associates or professes to be associated with the terrorist organization; or
(c) who, with intention to further the activity of a terrorist organization, addresses a meeting for the purpose of encouraging support for the terrorist organization or to further its activity. (2) A person, who commits the offence relating to support given to a terrorist organization under sub-section (1), shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both.
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11. Though bald allegations were made against the petitioner that he regularly used to transport PLA cadres and their articles, arms and ammunitions, there is no support for the same as none of the other co-accused whose statements were referred to in the draft final report implicated him in any such activities. There is no evidence forthcoming of the petitioner giving support or sheltering PLA cadres at any location. The other co-accused who came into the picture subsequently and who also confessed to nefarious activities, resulting in incriminating recoveries being made, did not speak of the petitioner indulging in any such activities. If they were involved in such activities, they would invariably have been aware of similar activities being done by the petitioner, if it was true. The allegations against the petitioner are therefore based purely on the confessions of the petitioner himself and of the original co-accused.
12. In this regard, reference may be made to Arup Bhuyan vs. State of Assam [(2011) 3 SCC 377], wherein the Supreme Court held that a confession is a very weak kind of evidence and an extra-judicial confession, in the absence of corroborative material, could not be acted upon to base a conviction. Earlier, in Kartar Singh vs. State of Punjab [1994 Crl.L.J. 3139], which arose in the context of the Terrorist and Disruptive Activities (Prevention) Act, 1987, the Supreme Court observed that the Constitutional and Human Rights commitment is that no one should be constrained to commit himself out of his own mouth and procedural checks are the valued means to prevent excess and civilizes the actions of the Executive.
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13. Section 25 of the Act of 1872 is one such procedural check in this regard and states that no confession made to a police officer shall be proved as against the person accused of any offence. Section 26 thereof enlarges upon this check and states that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
It is not the case of the respondents that the confessions of the petitioner and the original co-accused were recorded in the presence of a Magistrate. Therefore, no probative value attaches to them and they cannot be the basis for proceeding against the petitioner.
14. As regards the confession of the co-accused, it may be noted that Section 30 of the Act of 1872 speaks of consideration of a proved confession affecting the person making it and others jointly under trial for the same offence. It reads to the effect that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other persons as well as against the person who makes such confession. Significantly, the petitioner and the original co-accused are not even alleged to have committed the same offences.
15. Further, in Haricharan Kurmi vs. State of Bihar [AIR 1964 SC 1184], a Constitution Bench held that a confession offered by a co-accused may be regarded as evidence in a generic sense because of the provisions of Page 10 Section 30 of the Act of 1872 but it would not constitute evidence as defined by Section 3 thereof. The result, per the Bench, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused but must begin with the other evidence adduced by the prosecution and after it has formed an opinion as to the quality and effects of the said evidence, then it is permissible to turn to the confession in order to receive assurance about the conclusion in the case which the judicial mind is about to reach on the said evidence. In effect, the confession of a co-accused cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept the other evidence and feels the necessity of seeking assurance in support of the conclusion deducible from the said evidence. The Bench further cautioned that in a case where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution relies on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and would compel the Court to render a verdict that the charge is not proved against him.
16. Section 39 of the Act of 1967 fell for consideration before the Supreme Court in Union of India vs. Yasmeen Mohammed Zahid Alias Yasmeen [2019 (7) SCC 790]. It was held therein that, for Section 39 to get attracted, support to the terrorist organization must be within the meaning of either of the three clauses, viz., clauses (a), (b), and (c) of Section 39(1) and without such features being established the offence thereunder would not be made out.
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17. In the recent decision in Thwaha Fasal vs. Union of India (Cril. Appeal Nos. 1302 and 1303 of 2021, decided on 28.10.2021 = 2021 SCC OnLine SC 1000), the Supreme Court affirmed that unless the acts specified in Sections 38 and 39 of the Act of 1967 have been done with the intention to further the activities of a terrorist organization, the said provisions would not be attracted. To that extent, per the Supreme Court, the requirement of mens rea is involved and mere association with the terrorist organization as a member or otherwise would not be sufficient to attract the offences under Sections 38 and 39. Further, even if an accused is found allegedly supporting a terrorist organization by committing acts referred to in clauses (a) to (c) of Section 39(1), he cannot be held guilty of the offence punishable thereunder, if it is not established that the acts of support are done with the intention to further the activities of a terrorist organization. The Supreme Court held that intention to further the activities of a terrorist organization is an essential ingredient of the offences punishable under Sections 38 and 39 of the Act of 1967.
18. In the light of the aforestated legal position, it is clear that the prosecution has no case worth its name against the petitioner. The offences alleged against him are under Sections 19 and 39 of the Act of 1967 but none of the ingredients thereof are made out even prima facie. Except for the so-called confession of the petitioner himself, which has no evidentiary value, the prosecution has nothing to hold against him except the confession of the original co-accused. Section 30 of the Act of 1872 does not protect that confession in so far as the petitioner is concerned and more significantly, the Page 12 said confession did not even result in any recoveries being made from the petitioner. In effect, no evidence is available against the petitioner in the context of the alleged transportation of PLA cadres and offering support and shelter to them and their arms and ammunitions. Given the legal requirements for making out offences under Sections 19 and 39 of the Act of 1967, it is manifest that there is no possibility of the prosecution establishing a case against the petitioner even if it goes to trial. Further, it appears that the possibility of completing the trial is not foreseen in the near future as the Government is yet to issue the necessary sanction to file a charge sheet, in terms of Section 45 of the Act of 1967. That being so, there is no need to subject the petitioner to a long-drawn legal process unnecessarily. This is thus a fit case for exercise of inherent power under Section 482 Cr.P.C.
The Criminal Petition is accordingly allowed and FIR No. 55(8)2009 MI PS on the file of Mayang Imphal Police Station is quashed in so far as it relates to the petitioner.
Registry is directed to return the Case Diary and the draft Final Report placed on record by the authorities to the office of the learned Advocate General, Manipur, under proper acknowledgement.
A copy of this order shall be supplied online or through whatsapp to the learned counsel for the parties.
CHIEF JUSTICE FR bidya Page 13