Jharkhand High Court
Ajit Kumar Thakur vs Union Of India Through National ... on 24 November, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 367 of 2020
Ajit Kumar Thakur, aged about - 62, Son of late Ram Chandra Thakur,
Resident of flat no.506, Residency Estate, Lalpur, P.O. & P.S. - Lalpur,
District - Ranchi, Jharkhand ... ... ... Appellant
Versus
1.Union of India through National Investigation Agency, Ministry of
Home Affairs, Govt. of India, P.O. - New Delhi, P.S. - South Avenue
Police Station, State - Delhi
2.The State of Jharkhand ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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Through Video Conferencing
For the Appellant : Mr. Sajiv Kumar, Senior Advocate
Mr. Shadab Ansari, Advocate
For the respondent-NIA : Mr. Amit Kumar Das, Advocate
Mr. Saurav Kumar, Advocate
Mr. Prem Prakash, PP, NIA
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12/24.11.2021
Heard Mr. Sanjeev Kumar, Senior Advocate along with Md. Shadab Ansari,
Advocate appearing on behalf of the appellant.
2. Heard Mr. Amit Kumar Das, advocate along with Mr. Saurav Kumar,
learned counsels appearing on behalf of the respondent National Investigating
Agency.
3. The present appeal has been filed under Section 21 of National
Investigation Agency Act, 2008 (hereinafter referred to as the NIA Act) against
the order dated 03.03.2020 passed by learned Judicial Commissioner - cum -
Special Judge, NIA at Ranchi whereby the petition for discharge filed the
petitioner has been rejected.
4. The impugned order has been passed in connection with R.C. Case
No.06/2018/NIA/DLI/ corresponding to Special (NIA) No.3 of 2018 under Section
384/386/387/414 and 120-B of Indian Penal Code; Section 25 (1-b) (a), 26/35 of
the Arms Act, 1959 and also under Section 16/17/20 and 23 of the Unlawful
Activities (Prevention) Act, 1967 (hereinafter referred to as UA(P) Act) and
Section 17 (1) (2) of Criminal Law Amendment Act, 1908 (hereinafter referred to
as CLA Act) arising out of Tandwa P.S. Case No.2 of 2016.
Arguments of the learned counsel for the petitioner.
5. The learned counsel for the appellant submits that the appellant was a
Central Government employee and worked as General Manager of Magadh
Amrapali Area Coal Mines, during the period from 18.10.2012 to 31.12.2017.
During the period in question, there was total collapse of the law and order in the
area due to ultra-right-wing activists in the colliery. The colliery was closed and
the appellant was assigned the challenging job to start and make the aforesaid
colliery functional. With the aforesaid object, the appellant followed the policy of
Coal India and got in touch with the local people, Organisation, labour Union,
Associations etc. so that compensation money, job in lieu of land acquired etc.
may be given to those who genuinely deserved it. Accordingly, various meetings
took place in presence of Press, Police and Officials of the State Administration.
6. The learned counsel submits that one Tandwa P.S. Case no. 2 of 2016 dated
11.01.2016 was instituted and after completion of investigation, the charge sheet
was filed on 10.03.2016 against accused persons, but the appellant was not charge
sheeted and he was not even named as a witness in the charge sheet. He submits
that the charge sheet was submitted under Section 173 (2) of the Cr.P.C and the
investigation against other accused remained pending. Thereafter, the investigation
of the case was taken up by NIA pursuant to the letter of Government of India
dated 13.02.2018 and the case was renumbered as Special (NIA) Case No.3 of
2018. The NIA filed supplementary charge sheet and cognizance was taken inter
alia under Sections 16, 17, 20 and 23 of UA(P) Act and the other related Sections.
7. The specific case of the appellant is that once the charge sheet was
submitted by State police under Section 173 (2) of the Cr.P.C, the National
Investigation Agency could not have taken up further investigation without the
permission of the court and accordingly, one of the moot questions to be answered
in the present case is as to whether the NIA could have taken up the investigation
without the permission of the court. It is submitted that if this point is answered in
favour of the appellant, then the charge sheet submitted by NIA will be of no
consequence and accordingly, the appellant should have been discharged by the
learned court below as admittedly, in the initial investigation, pursuant to which
charge sheet was submitted under Section 173 (2) Cr.P.C, the appellant was not
an accused. For the aforesaid proposition, the learned counsel for the appellant has
heavily relied upon the judgment passed by Hon'ble Supreme Court in the case of
Vinay Tyagi Vs. Irshad Ali @ Deepak and others reported in (2013) 5 SCC 762
and has submitted that the present case is squarely covered by the ratio decided by
the Hon'ble Supreme Court while deciding issue no. (ii) as framed by the Hon'ble
Supreme Court in the aforesaid judgement.
8. The Second point argued by the learned counsel for the appellant is TPC
was never declared as a terrorist organisation under the provisions of UA(P) Act
although, it was declared as a terrorist organisation by the State under the
provisions of CLA Act. He further submits that the appellant has been made
accused alleging his nexus with Tritya Prastuti Committee (TPC). He submits that
as per the Schedule to the NIA Act, although UA(P) Act has been mentioned, but
CLA Act has not been mentioned and accordingly, TPC having been declared a
terrorist organisation under CLA Act, does not come within the meaning of
terrorist organisation as defined under UA(P) Act in absence of any such
declaration under UA(P) Act and accordingly, NIA Act has no applicability.
Consequently, investigation undertaken by NIA is without jurisdiction and the
charge sheet submitted by NIA is of no consequence. He submits that the entire
material collected during investigation by NIA and filing of supplementary charge
sheet is wholly without jurisdiction and therefore, the appellant should have been
discharged by the learned court below.
9. The third point argued by the learned counsel for the appellant is that
otherwise also, no case is made out against the appellant. In fact, the appellant was
acting as a public servant with a view of safeguard the interest of Coal India Ltd.
and its policies. The appellant did not indulge in any unlawful activity and did not
ever receive any monetary benefit. The appellant as member of Central Coalfields
Limited (CCL) interacted or engaged with the members of general public with a
view to ascertain the genuineness of the persons whose land were acquired or with
the persons, who were to be compensated in lieu of acquisition of the land by way
of money or job. It has also been submitted that at no stage neither CCL had taken
any action against the appellant for any wrong doing nor the prosecution has been
able to unearth any money or property disproportionate to the known source of
income of the appellant. He has also submitted that the CCL was in fact benefited
by the acts of the appellant as a closed colliery was made operational and coal was
dispatched and all the transaction money was received by CCL.
10. He submits that ex facie no case is made out against the appellant and there
is no material available on record to frame any charge against the appellant. No
terrorist act as defined u/s 15 of UA(P) Act on the part of the appellant has been
mentioned in the charge sheet.
11. The learned counsel submits that the aforesaid three aspects of the matter
have not been properly considered by the learned court below while passing the
impugned order refusing to discharge the appellant and accordingly, the appeal
may be allowed.
Arguments of the Respondent - NIA
12. The learned counsel appearing on behalf of the respondent - NIA, on the
other hand, has vehemently opposed the prayer of the appellant and submitted that
the argument of the appellant is misconceived and devoid of any merits. He has
submitted that several cases of terrorist acts have been registered against the
members of TPC which are under investigation/trial and the argument of the
appellant that during investigation, no terrorist act as defined under Section 15 of
UA(P) Act has been remotely mentioned is incorrect and contrary to the records of
the case. He has submitted that a large number of cases are pending against
members of TPC in relation to several terrorist activities. The learned counsel has
also submitted that the communist party of India (maoist) all its formations and
front organisations have been declared as terrorist organisation under UA(P) Act
Tritya Prastuti Committee (TPC) is a breakaway fraction of CPI(M) which has
been declared unlawful association by the State of Jharkhand by issuing a
Notification under Section 16 of CLA Act, 1908. He has submitted that in the year
2012, the work of Amrapali Coal Mines had commenced and the appellant, who
was the General Manager at the relevant point of time, approached the leaders of
TPC seeking their intervention for the purposes of smooth functioning of coal
project and TPC intervened in the matter considering the financial benefits and
interest of their association. Accordingly, a meeting was held in the village under
the dictates of TPC. A committee was decided to be formed in the name of Shanti
Sah Sanchalan Samiti for each village and it was further decided in the meeting
that Rs.254/- per metric tonne would be collected from each transporter and
delivery order holders, which were to be distributed in the following manner:
A. TPC Rs.40/- per metric tonne (to be used for purchase of arms and
ammunition to expand and strengthen their terrorist activity) ;
B. CCL Official (including appellant) - Rs.39/- per metric tonne;
C. Labourer - Rs.45/-
D. Loader - Rs.30/-
E. Volunteers Rs.30/-
F. Villagers, who did not get the job Rs.28/-
G. Local Police Rs.10 + Rs.8 = Rs.18/-
H. Pollution / forest department - Rs.3/-
I. Media/Press Rs.2/-
J. Area charge to be deposited in CCL Rs.4/-
K. Accidental Case Rs.5/-
L. Owner whose land fell within road transportation Rs.8/-
M. Other expenses Rs.2/-
13. He has submitted that the appellant along with the other accused persons
joined hands with TPC forming terrorist gangs for their personal gains and also
for generation of funds for terrorist gangs . He has submitted that sufficient
material has come against the appellant on the point of his direct involvement. He
referred to the statement of the protected witness recorded under Section 164
Cr.P.C who is said to have paid huge amount to the appellant and has also deposed
that Rs.254/- per metric tonne was collected over and above transportation charges
to be distributed under aforesaid heads. Direct statements regarding involvement
of the appellant in the alleged offence have also been made against the appellant
by P.W. 49 and many other witnesses. The learned counsel has submitted that so
far as the merit of the case is concerned, there is enough material against the
appellant and accordingly, the discharge petition of the appellant has been rightly
dismissed. He submits that huge amount was illegally collected by forming
terrorist gangs and/or to aid, support and promote terrorist activities. Actions not
having cultivated into actual act of terrorism by using bombs etc. or no
disproportionate asset having been found in possession of the appellant has no
bearing in the matter when seen in the light of the Sections of the NIA Act under
which the appellant has been charge sheeted by NIA. It is also submitted that
investigation is still continuing.
14. The learned counsel for the respondent - NIA while addressing the issue
raised by the appellant regarding jurisdiction of NIA to take up further
investigation, has submitted that the judgment passed in the case of Vinay Tyagi
(supra) does not help the appellant in any manner, rather the said judgment is in
favour of the respondent. He has further submitted that admittedly, the NIA did not
take up any fresh investigation or reinvestigation, rather the present case is of
further investigation by NIA. He has submitted that the issue before the Hon'ble
Supreme Court in the case of Vinay Tyagi (supra) was with regard to fresh
investigation/re-investigation and while deciding the issue, the Hon'ble Supreme
Court has clearly held in para 22 of the report that the power of further
investigation is vested with the executive. He has submitted that once the power of
further investigation is vested with the executive, there was no requirement to seek
the permission of the court for further investigation. It has been held by the
Hon'ble Supreme Court that further investigation has to be understood in complete
contradiction to re-investigation fresh or de novo investigation. It is not in dispute
that at the time of filing initial chargesheet u/s 173 (2) investigation was kept
pending. He has referred to Section 6 of the NIA Act and submits that the power
for further investigation undertaken by NIA has been duly exercised in terms of
Section 6 which permits further investigation to be taken up by NIA even if the
matter has been initially investigated by the State police. The learned counsel has
also submitted that there is no irregularity or illegality in investigation of the case
by NIA and filing of supplementary charge sheet wherein, the appellant has been
made accused of serious offences. He has also referred to a judgment passed by
Hon'ble Bombay High Court reported in (2017) SCC online Bom 493 (Pragya
Singh Chandrapal Singh Thakur Vs. State of Maharastra) and has referred para
88 and 89, to submit that it has been held that the power of NIA to investigate is
absolute and it is a matter of procedure and no vested right is created in the
accused to object to the course permitted by the statute and there is no need to read
down Section 6 of the NIA Act. It has also been held that NIA comes into picture
for the purposes of investigation and prosecution of the schedule offence and the
very object and purpose will be defeated if the investigating agency is prevented
from investigating the crime.
15. So far as the other plea raised by the appellant regarding non-declaration of
TPC as a terrorist organisation under UA(P) Act and consequently, alleged illegal
assumption of jurisdiction by NIA to investigate as TPC has not been declared as a
terrorist organisation under UA(P) Act is concerned, the learned counsel submits
that such arguments are devoid of any merits as the appellant had formed terrorist
gangs for which no declaration by issuance of any notification is required. He has
also submitted that NIA could investigate the matter even when the money was
collected for the purposes of use in terrorist activities or was likely to be used for
such purpose. The learned counsel submits that the arguments advanced on behalf
of the appellant are devoid of any merits and hence fit to be rejected.
Findings of this Court
16. Before we proceed to examine the facts of the present case, it would be
appropriate to consider the ambit and scope of the powers of the Court at the time
of considering the discharge application. Section 227 of Cr.P.C. provides that if,
upon consideration of the record of the case and the documents submitted
therewith, and after hearing the submissions of the accused and the prosecution in
this behalf, the Judge considers that there is no sufficient ground for proceeding
against the accused, he shall discharge the accused and record his reasons for so
doing.
17. In the judgement passed by the Hon'ble Supreme court in the case of Sajjan
Kumar v. CBI, reported in (2010) 9 SCC 368, the Hon'ble Supreme Court has
considered the scope of Sections 227 and 228 CrPC. The principles which
emerged therefrom have been taken note of in para 21 as under:
"21. On consideration of the authorities about the scope of Sections 227 and
228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges
under Section 227 CrPC has the undoubted power to sift and weigh the
evidence for the limited purpose of finding out whether or not a prima facie
case against the accused has been made out. The test to determine prima
facie case would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose grave suspicion
against the accused which has not been properly explained, the court will be
fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the
prosecution but has to consider the broad probabilities of the case, the total
effect of the evidence and the documents produced before the court, any basic
infirmities, etc. However, at this stage, there cannot be a roving enquiry into
the pros and cons of the matter and weigh the evidence as if he was
conducting a trial.
(iv) If on the basis of the material on record, the court could form an
opinion that the accused might have committed offence, it can frame the
charge, though for conviction the conclusion is required to be proved beyond
reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the
material on record cannot be gone into but before framing a charge the court
must apply its judicial mind on the material placed on record and must be
satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate
the material and documents on record with a view to find out if the facts
emerging therefrom taken at their face value disclose the existence of all the
ingredients constituting the alleged offence. For this limited purpose, sift the
evidence as it cannot be expected even at that initial stage to accept all that
the prosecution states as gospel truth even if it is opposed to common sense
or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only,
as distinguished from grave suspicion, the trial Judge will be empowered to
discharge the accused and at this stage, he is not to see whether the trial will
end in conviction or acquittal."
18. In the judgement passed by the Hon'ble Supreme Court Asim Shariff v.
NIA, (2019) 7 SCC 148, it has been held that the words 'not sufficient ground for
proceeding against the accused' clearly show that the Judge is not a mere post
office to frame the charge at the behest of the prosecution, but has to exercise his
judicial mind to the facts of the case in order to determine whether a case for trial
has been made out by the prosecution. In assessing this fact, it is not necessary for
the court to enter into the pros and cons of the matter or into a weighing and
balancing of evidence and probabilities which is really his function after the trial
starts. At the stage of Section 227, the Judge has merely to sift the evidence in
order to find out whether or not there is sufficient ground for proceeding against
the accused. The sufficiency of ground would take within its fold the nature of the
evidence recorded by the police or the documents produced before the court which
ex facie disclose that there are suspicious circumstances against the accused so as
to frame a charge against him.
19. In the judgement passed by the Hon'ble Supreme court in the case of M.E.
Shivalingamurthy v. CBI, reported in (2020) 2 SCC 768, the above principles
have been reiterated in para 17,18, 28 to 31 and the Hon'ble supreme court has
explained as to how the matters of grave suspicion are to be dealt with. The
aforesaid paragraphs of the report are quoted as under:
"17. This is an area covered by a large body of case law. We refer to a recent
judgment which has referred to the earlier decisions viz. P. Vijayan v.
State of Kerala and discern the following principles:
17.1. If two views are possible and one of them gives rise to suspicion
only as distinguished from grave suspicion, the trial Judge would be
empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the charge at the
instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to find out
whether or not there is sufficient ground for proceeding. Evidence would
consist of the statements recorded by the police or the documents produced
before the Court.
17.4. If the evidence, which the Prosecutor proposes to adduce to prove
the guilt of the accused, even if fully accepted before it is challenged in cross-
examination or rebutted by the defence evidence, if any, "cannot show that
the accused committed offence, then, there will be no sufficient ground for
proceeding with the trial".
17.5. It is open to the accused to explain away the materials giving rise to
the grave suspicion.
17.6. The court has to consider the broad probabilities, the total effect of
the evidence and the documents produced before the court, any basic
infirmities appearing in the case and so on. This, however, would not entitle
the court to make a roving inquiry into the pros and cons.
17.7. 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.
17.8. There must exist some materials for entertaining the strong
suspicion which can form the basis for drawing up a charge and refusing to
discharge the accused.
18. The defence of the accused is not to be looked into at the stage when
the accused seeks to be discharged under Section 227 CrPC (see State of
J&K v. Sudershan Chakkar). The expression, "the record of the case", used
in Section 227 CrPC, is to be understood as the documents and the articles, if
any, produced by the prosecution. The Code does not give any right to the
accused to produce any document at the stage of framing of the charge. At
the stage of framing of the charge, the submission of the accused is to be
confined to the material produced by the police (see State of Orissa v.
Debendra Nath Padhi).
28. It is here that again it becomes necessary that we remind ourselves of
the contours of the jurisdiction under Section 227 CrPC. The principle
established is to take the materials produced by the prosecution, both in the
form of oral statements and also documentary material, and act upon it
without it been subjected to questioning through cross-examination and
everything assumed in favour of the prosecution, if a scenario emerges where
no offence, as alleged, is made out against the accused, it, undoubtedly,
would ensure to the benefit of the accused warranting the trial court to
discharge the accused.
29. It is not open to the accused to rely on the material by way of defence
and persuade the court to discharge him.
30. However, what is the meaning of the expression "materials on the
basis of which grave suspicion is aroused in the mind of the court's", which
is not explained away? Can the accused explain away the material only with
reference to the materials produced by the prosecution? Can the accused rely
upon material which he chooses to produce at the stage?
31. In view of the decisions of this Court that the accused can only rely
on the materials which are produced by the prosecution, it must be
understood that the grave suspicion, if it is established on the materials,
should be explained away only in terms of the materials made available by
the prosecution. No doubt, the accused may appeal to the broad probabilities
to the case to persuade the court to discharge him."
20. The present case has to be examined keeping in view the aforesaid principles of
law in the matter of discharge.
21. While arguing the first point, the learned counsel for the appellant has relied upon
the judgment passed in the case of Vinay Tyagi (supra) and has referred to question in 2
framed by the Hon'ble Supreme Court, as under:
Question 2
Whether the Central Bureau of Investigation (for short "CBI") is empowered
to conduct "fresh"/"reinvestigation" when the cognizance has already been
taken by the court of competent jurisdiction on the basis of a police report
under Section 173 of the Code?
22. In connection with the aforesaid question no. 2, the Hon'ble Supreme Court has
explained the meaning and scope of initial investigation, further investigation and de-
novo/fresh/re- investigation and held in Para 20 to 22, 41 and 49 of the report as under:
"20. Having noticed the provisions and relevant part of the scheme of the
Code, now we must examine the powers of the court to direct investigation.
Investigation can be ordered in varied forms and at different stages. Right at
the initial stage of receiving the FIR or a complaint, the court can direct
investigation in accordance with the provisions of Section 156(1) in exercise
of its powers under Section 156(3) of the Code. Investigation can be of the
following kinds:
(i) Initial investigation,
(ii) Further investigation,
(iii) Fresh or de novo or reinvestigation.
21. The "initial investigation" is the one which the empowered police officer
shall conduct in furtherance of registration of an FIR. Such investigation
itself can lead to filing of a final report under Section 173(2) of the Code and
shall take within its ambit the investigation which the empowered officer
shall conduct in furtherance of an order for investigation passed by the court
of competent jurisdiction in terms of Section 156(3) of the Code.
22. "Further investigation" is where the investigating officer obtains further
oral or documentary evidence after the final report has been filed before the
court in terms of Section 173(8). This power is vested with the executive. It is
the continuation of previous investigation and, therefore, is understood and
described as "further investigation". The scope of such investigation is
restricted to the discovery of further oral and documentary evidence. Its
purpose is to bring the true facts before the court even if they are discovered
at a subsequent stage to the primary investigation. It is commonly described
as "supplementary report". "Supplementary report" would be the correct
expression as the subsequent investigation is meant and intended to
supplement the primary investigation conducted by the empowered police
officer. Another significant feature of further investigation is that it does not
have the effect of wiping out directly or impliedly the initial investigation
conducted by the investigating agency. This is a kind of continuation of the
previous investigation. The basis is discovery of fresh evidence and in
continuation of the same offence and chain of events relating to the same
occurrence incidental thereto. In other words, it has to be understood in
complete contradistinction to a "reinvestigation", "fresh" or "de novo"
investigation.
41. Having discussed the scope of power of the Magistrate under Section 173
of the Code, now we have to examine the kinds of reports that are
contemplated under the provisions of the Code and/or as per the judgments
of this Court. The first and the foremost document that reaches the
jurisdiction of the Magistrate is the first information report. Then, upon
completion of the investigation, the police is required to file a report in terms
of Section 173(2) of the Code. It will be appropriate to term this report as a
primary report, as it is the very foundation of the case of the prosecution
before the court. It is the record of the case and the documents annexed
thereto, which are considered by the court and then the court of the
Magistrate is expected to exercise any of the three options afore noticed. Out
of the stated options with the court, the jurisdiction it would exercise has to
be in strict consonance with the settled principles of law. The power of the
Magistrate to direct "further investigation" is a significant power which has
to be exercised sparingly, in exceptional cases and to achieve the ends of
justice. To provide fair, proper and unquestionable investigation is the
obligation of the investigating agency and the court in its supervisory
capacity is required to ensure the same. Further investigation conducted
under the orders of the court, including that of the Magistrate or by the
police of its own accord and, for valid reasons, would lead to the filing of a
supplementary report. Such supplementary report shall be dealt with as part
of the primary report. This is clear from the fact that the provisions of
Sections 173(3) to 173(6) would be applicable to such reports in terms of
Section 173(8) of the Code.
49. Now, we may examine another significant aspect which is how the
provisions of Section 173(8) have been understood and applied by the courts
and investigating agencies. It is true that though there is no specific
requirement in the provisions of Section 173(8) of the Code to conduct
"further investigation" or file supplementary report with the leave of the
court, the investigating agencies have not only understood but also adopted it
as a legal practice to seek permission of the courts to conduct "further
investigation" and file "supplementary report" with the leave of the court.
The courts, in some of the decisions, have also taken a similar view. The
requirement of seeking prior leave of the court to conduct "further
investigation" and/or to file a "supplementary report" will have to be read
into, and is a necessary implication of the provisions of Section 173(8) of the
Code. The doctrine of contemporanea expositio will fully come to the aid of
such interpretation as the matters which are understood and implemented for
a long time, and such practice that is supported by law should be accepted as
part of the interpretative process."
23. In the judgment passed by the Hon'ble Bombay High Court reported in 2017 SCC
Online Bom 493 (Pragya Singh Chandrapalsingh Thakur versus State of
Maharashtra) relied upon by the learned counsel for the N.I.A., a reference has been
made to earlier judgment passed by the Hon'ble Bombay High Court passed in Writ
Petition No. 4049 of 2012 decided on 11.10.2013 wherein there was a challenge to
handing over the investigation to N.I.A. In that judgement, after analysing the
provisions of N.I.A Act, it was held that the power of N.I.A. to investigate is absolute
and it is a matter of procedure and there is no vested right created in the accused to
object the course permitted by the statute and there was no need to read down Section 6
of the N.I.A. Act.
24. Under the facts and circumstances of the present case, the argument of the
appellant that no further investigation could have been undertaken by N.I.A. without the
permission of the court, is devoid of any merit for the following reasons.
25. There is a marked difference between the situation where investigation is over and
chargesheet is submitted and where chargesheet is submitted with a clear indication that
further investigation is continued. In the present case, initial chargesheet was submitted
keeping the investigation pending. Once the charge sheet is submitted under Section
173 (2) of the Cr. P.C. keeping the investigation pending, there is no requirement for the
investigating agency to seek permission of the court, either for the purposes of
undertaking further investigation or for the purposes of transferring the investigation to
N.I.A. in terms of Section 6 of N.I.A. Act. Section 6 of the N.I.A. Act does not require
any prior order of the court for the purposes of handing over the investigation to N.I.A.
Further, the ratio of the judgement in the case of Vinay Tyagi (supra) does not apply to
the facts and circumstances of this case as investigation was continued while submitting
the initial chargesheet.
26. It is not in dispute that investigation was taken over by NIA under the order issued
by the Central Government in term of Section 6(5) of NIA Act and consequently the
pending investigation was transferred from the State to N.I.A. and accordingly N.I.A.
re-registered the offence and started further investigation. Once the condition precedent
for transfer of Investigation to N.I.A. is satisfied in terms of the statute, there is no
requirement in law to seek orders of the Higher Courts or orders of the concerned court
for further investigation of the case by N.I.A. This Court is of the considered view that
power to investigate and taking over the investigation from the State has been conferred
upon N.I.A. in terms of the provisions of Section 6 of the N.I.A. Act. Upon assumption
of jurisdiction to investigate in terms of the N.I.A. Act, the N.I.A. undertakes further
investigation and not de-novo or fresh or re-investigation of the case. Accordingly, the
charge sheet upon further investigation by N.I.A. is a supplementary charge sheet under
Section 173(8) of the Cr. P.C. and the same has to be read with original charge sheet
filed in terms of Section 173 (2) of the Cr. P.C.
27. In the instant case, it is not in dispute that the State submitted charge sheet under
Section 173(2) of the Cr. P.C. against a few accused persons and investigation remained
pending against other accused persons and admittedly the appellant was not charge
sheeted under Section 173 (2), but supplementary charge sheet has been submitted by
N.I.A. against the appellant under Section 173 (8) which is to be read along with the
original charge sheet.
28. Section 6 of the N.I.A. Act clearly empowered the Central Government to transfer
the investigation of a case to N.I.A. and till such transfer is made, the State Authorities
are empowered and competent to continue the investigation of a pending matter. In the
present case, there is no parallel investigation by State and N.I.A., rather the State
continued the investigation till the same was handed over to N.I.A. and N.I.A. took up
the investigation only as a successor and conducted the investigation and filed
supplementary charge sheet. It has also been mentioned by the learned counsel for the
N.I.A. that the investigation of the case is not yet over and much more material is likely
to come.
29. Thus, neither the N.I.A. Act nor the judgement relied upon by the learned counsel
for the appellant in the case of Vinay Tyagi (supra) provides that in the matter of
continued investigation while submitting initial chargesheet, the permission of the court
is required to be taken for the purposes of handing over the investigation to N.I.A. in
terms of the N.I.A. Act. Accordingly, no permission from the concerned court was
required to be taken by N.I.A. before taking up further investigation and consequently,
the supplementary chargesheet submitted by N.I.A. is valid in the eyes of law and the
learned court below was right in considering the same while considering the prayer for
discharge of the appellant. Thus, the point no. 1 is decided against the appellant.
30. The second point argued by the appellant is that the condition precedent for
investigation by N.I.A. has not been satisfied in the instant case in as much as Tritya
Prastuti Committee (TPC) has not been declared as a terrorist organisation under
UA(P) Act and has been declared as such under CLA Act by the State and accordingly,
TPC cannot be termed as a terrorist gang, as defined under Section 2 of UA (P) Act to
enable the N.I.A. to investigate the case. It has been argued that from plain reading of
the entire charge sheet without adding or subtracting anything, it can be arrived at the
conclusion that -
(a) No terrorist act as defined under Section 15 of the UA(P) Act finds
mention even remotely in this entire charge sheet filed by the
prosecution.
(b) In the absence of any act or omission as stated to that effect in the
charge sheet the TPC cannot be termed as terrorist gang within the
meaning of section 2 of the UA (P) Act.
(c) In view of the aforesaid, the present case cannot be a case under UA
(P) Act as such the case could not have been investigated by the NIA
and the charge sheet filed by the prosecution is not sustainable.
31. Terrorist act, Terrorist gang, Terrorist organisation and Unlawful association have
been defined u/s 2 of the UA (P) Act, 1967 which reads as under:
"2. Definitions (1) In this Act, unless the context otherwise requires
(l) "Terrorist gang" means any association other than terrorist
organization, whether systematic or otherwise, which is concerned
with, or involved in, terrorist act."
(k) "terrorist act" has the meaning assigned to it in section 15, and
expressions "terrorism" and "terrorist" shall be construed accordingly.
(m) "Terrorist organisation" means an organisation listed in the schedule
of an organisation operating under the same name as an organisation so
listed.
(p) Unlawful association" means any association
(i) which has for its object any unlawful activity, or which
encourages or aids persons to undertake any unlawful activity,
or of which the members undertake such activity; or
(ii) which has for its object any activity which is punishable under
Section 153-A or section 153-B of the Indian Penal Code (45
of 1860), or which encourages or aids persons to undertake
any such activity, or of which the members undertake any such
activity;
Provided that nothing contained in sub-clause (ii) shall apply
to the State of Jammu and Kashmir."
32. It is not in dispute that the power of N.I.A. to investigate is in relation to any
schedule offence prescribed under the N.I.A. Act. It is further not in dispute that the
schedule to N.I.A. Act contains UA(P) Act, but does not contain CLA Act. It is further
not in dispute that Tritya Prastuti Committee (TPC) is an Unlawful Association
declared by State of Jharkhand under CLA Act, but no such declaration has been made
with regards to Tritya Prastuti Committee (TPC) under UA(P) Act, 1967.
33. It is the specific case of NIA as per the supplementary chargesheet that Tritya
Prastuti Committee (TPC) is a break-away faction of CPI (M) is an unlawful
association and also indulged in terrorist activity by forming a terrorist gang. As per
the allegation, it had transpired that TPC was instrumental in hurling several attacks by
bombs upon Reserve Battalion in India at Amrapali and was involved in other activities
of extortion, murder and bomb blasts. It has been alleged that the said association used
to raise huge funds and invest the same in procurement of arms and ammunition for
nurturing their terrorist activities. Over the period, this terrorist gang which is being run
in the name of TPC has become a menace and has given effect to various terrorist
activities and NIA is presently investigating following cases instituted against TPC and
its member/aids: RC 22/2018/NIA/DLI, RC 23/2018/NIA/DLI, RC 23/2018/NIA/DLI
and the instant case. It has been alleged that the present appellant was instrumental and
was directly involved in raising and collection of funds and for providing funds to TPC
and though TPC has not been declared as a terrorist organization under UA(P) Act, but
it is a break-away faction of a terrorist organization CPI (M) organization and formed a
terrorist gang. Tritya Prastuti Committee (TPC) has already been declared as an
unlawful association by the State Government. As per the chargesheet, there has been
revelation of facts related to modus operandi of extortion/ collection of levies from
coal traders/transporters/contractors by TPC and structural organization of TPC. It
was revealed during investigation that before starting the Amrapali Colliery, TPC
operatives used to extort levy from local contractors executing public works in an
organised manner and in the year 2012, the work of Amrapali coal mine was to start
and all the villagers of affected villages were approached by the accused including
the appellant. A meeting was held between officials of CCL and committee members
including villagers wherein demands for providing job to one person from every
family and compensation for land acquisition of land were placed before CCL. At
that time BGR Company took the tender for removal of OB (over burden) and
digging out the coal, but villagers opposed the starting of colliery work because their
demands were not fulfilled by the CCL. The present appellant, Ajit Kumar Thakur,
the then General Manager, CCL and the representative of BGR Company, Shri
Raghuram Reddy, approached the leaders of Tritiya Prastuti Committee (TPC), to
sort out the problem. TPC decided to intervene in the matter of coal project for its
own financial interests and therefore, a meeting was organized to resolve the matter
and to start the mining work in the area. The meeting was called and some prominent
persons, from 5 adjoining villages, joined the meeting. In the meeting, TPC leader
Akraman ji suggested that a committee of the villagers from all 5 villages should be
formed to address the issues arising due to mining in Amrapali area. Accordingly, a
committee was formed in the name of "SHANTI SAH SANCHALAN SAMITI" for
each village and it was decided that each village will have 7 members (total 35
members having 7 members from each village) and it was further decided in the
meeting that Rs.254/- per metric tonne would be collected from each transporter and
delivery order holders, which were to be distributed in the manner indicated in the
submissions of the learned counsel for NIA. Thus, prima-facie, on the basis of the
materials collected during investigation, it appears that the accused persons joined
hands with TPC for their personal gains and also for generation of funds for terrorist
activities and thus formed terrorist gangs. The materials further reveal that, persons
other than the members of Tritya Prastuti Committee (TPC) were also involved and
included in the furtherance of terrorist activities of Tritya Prastuti Committee (TPC). In
aforesaid view of the matter, non-declaration of Tritya Prastuti Committee (TPC) as a
terrorist organisation under UA(P) Act has no bearing in the matter of competence of
NIA to investigate the case as the schedule to NIA Act, interalia, mentions UA(P) Act,
1967, which includes terrorist gangs for which no separate declaration under UA(P)
Act, 1967 is required. Accordingly, the point no. 2 is also decided against the appellant.
34. So far as the third point raised by the learned counsel for the appellant is
concerned, this Court finds that there is enough material as indicated by the learned
counsel for the NIA on the point of active involvement of the appellant in working in
association with Tritya Prastuti Committee (TPC) and "shanti sah sanchalan
samiti" along with their members in the matter of illegal collection of money for
the purposes of terrorist activities. Merely because the appellant was a government
servant and there has been no proceedings against him by CCL and there has been no
recovery of money from the possession of the appellant has no bearing in the matter
at the stage of refusal to discharge the appellant when seen in the light of the
aforesaid judgements regarding the scope of enquiry at the stage of discharge.
35. The definition of terrorist act as defined under Section 15 of UA(P) Act, 1967
includes doing any act with intent to threaten or likely to threaten the unity, integrity,
security, economic security or sovereignty of India or with intent to strike terror or
likely to strike terror in the people or any section of the people in India or in any
foreign country by using various means mentioned in the said section or any other
means or whatever nature to cause or likely to cause death, injuries to any person or
persons, loss, damage or destruction of any property, disruption of any supplies or
services essential to the life of the community. Inter alia Section 17 of the UA(P) act
provides for punishment for raising funds for terrorist act which includes direct as
well as indirect raising or providing funds or collecting funds, whether from a
legitimate or illegitimate source, from any person or persons, knowing that such
funds are likely to be used, in full or in part by terrorist organisation or by terrorist
gangs or by an individual terrorist to commit a terrorist act, notwithstanding whether
such funds were actually used or not for commission of such acts. Explanation to the
said Section 17 provides that participating, organising or directing in any of the acts
stated in the section shall constitute an offence and also includes raising or collecting
or providing funds in any manner for the benefit of, or, to an individual terrorist,
terrorist gang or terrorist organisation for the purpose not specifically covered under
Section 17 is also to be construed as offence. Section 18 deals with punishment for
conspiracy including attempting to commit or advocating, abetting, advising or
inciting, directing or knowingly facilitating the commission of terrorist act or any act
preparatory to the commission of terrorist act. Further Section 20 is the punishment
prescribed for being member of terrorist gang or organisation. The nature of
materials collected by the investigating officer against the appellant are prima facie
enough to cover his alleged activities and associations under the aforesaid Section of
UA(P) Act, 1967.
36. In view of the aforesaid circumstances, this Court is of the considered view that
there is enough material against the appellant resulting in refusal of his discharge
petition. This Court has also gone through the impugned order passed by the learned
court below and finds that the impugned order is well reasoned order and no ground
as such has been pointed out by the learned counsel appearing on behalf oof the
appellant calling for any interference in the impugned order. The impugned order
refers to the materials collected against the appellant during investigation supported
by the statements of the witnesses indicating close association of the appellant with
terrorist gang in the act of extortion of money as well as conspiracy involved in the
commission of alleged offence. The learned court below has rightly found sufficient
material to proceed against the appellant by framing charge against him. It is not in
dispute that the trial has commenced and also that the investigation of the offence is
not yet completed.
37. As a cumulative effect of the aforesaid findings, the present appeal in hereby
dismissed.
38. Any observation made in this judgement will not prejudice either party in the
trial.
39. Pending interlocutory application is closed.
(Aparesh Kumar Singh, J.)
(Anubha Rawat Choudhary, J.)
Saurav/Binit
