National Investigation Agency vs Mushtaq Ahmad Malik & Ors
2021 Latest Caselaw 513 j&K

                                   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:

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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

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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,

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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

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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

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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

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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

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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-

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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.

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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

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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

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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,

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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




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2021.04.27 15:58
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integrity of this document