Jharkhand High Court
Vinit Agarwal Alias Vineet ... vs Union Of India Through The ... on 18 January, 2022
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No.71 of 2020
----
Vinit Agarwal alias Vineet Agarwal, aged about 38 years, son
of Late Binod Kumar Agarwal, resident of Harihar Singh
Road, P.O. Bariatu, P.S. Bariatu, District Ranchi
(Jharkhand)-834009. ... ... Appellant
Versus
Union of India through the National Investigating Agency,
having its N.I.A. camp Office, Quarter No.305, Sector II, P.O.
and P.S. Dhurwa, District Ranchi (Jharkhand)-834002.
... ... Respondent
With
Criminal Appeal (DB) No.117 of 2020
----
Amit Agarwal @ Sonu Agarwal, aged about 41 years, son of
Shyam Sundar Agarwal, resident of B-77, Kabi Kankan
Mukundram Sarani, Sector-2A, Bidhan Nagar, P.O.
Bamunara, P.S. Bidhan Nagar Durgapur, District
Burddhawan (West Bengal). ... ... Appellant
Versus
Union of India through the National Investigation Agency,
having its Camp Office at Quarter No.305, Sector II, P.O. &
P.S. Dhurwa, District Ranchi. ... ... Respondent
With
Criminal Appeal (DB) No.119 of 2020
----
Mahesh Agarwal, aged about 53 years, son of Late Mahadeo
Prasad Agarwal, permanent resident of BA 209, Salt Lake,
P.O. & P.S. Salt Lake, Kolkatta - 700064, District North 24
Paraganas, West Bengal. ... ... Appellant
Versus
Union of India through the National Investigating Agency,
having its office at N.I.A. Camp office, Quarter No.305,
Sector-II, P.O. and P.S. Dhurwa, Dist: Ranchi, Jharkhand-
834002. ... ... Respondent
CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
------
Cr. Appeal (DB) No.71 of 2020
For the Appellant : Mr. R.S.Cheema, Sr. Advocate
Mr. S.D.Sanjay, Sr. Advocate
Mr. Sumeet Gadodia, Advocate
Mr. Indrajit Sinha, Advocate
For the Respondent : Mr. Vikramjit Banerjee, ASGI
Mr. Rohit Ranjan Prasad, Spl. P.P.(NIA)
Cr. Appeal (DB) No.117 of 2020
For the Appellant : Mr. R.S.Cheema, Sr. Advocate
Mr. Indrajit Sinha, Advocate
Mr. Arjun Bobde, Advocate
Ms. Tarannum Cheema, Advocate
Ms. Sneh Singh, Advocate
Mr. Vikrant Sinha, Advocate
For the Respondent : Mr. Vikramjit Banerjee, ASGI
Mr. Rohit Ranjan Prasad, Spl. P.P.(NIA)
Cr. Appeal (DB) No.119 of 2020
For the Appellant : Mr. Kamal Nayan Chaubey, Sr. Advocate
Mr. Vikas Pahwa, Sr. Advocate
Mr. Ambuj Nayan Chaubey, Advocate
Mr. Indrajit Sinha, Advocate
Mr. Nitesh Rana, Advocate
Mr. Sumer Boparai, Advocate
For the Respondent : Mr. Vikramjit Banerjee, ASGI
Mr. Rohit Ranjan Prasad, Spl. P.P.(NIA)
--------
C.A.V. on 20.07.2021 Pronounced on 18.01.2022
Per Dr. Ravi Ranjan, C.J.
With consent of the parties, hearing of the matters was
done through video conferencing and there was no complaint
whatsoever regarding audio and visual quality.
2. These appeals (three in number), have been heard
together with consent of the parties in view of the fact that
common issues are involved and are being disposed of by this
common order.
3. The instant appeals have been preferred invoking the
jurisdiction conferred upon this Court under Section 21 of
the National Investigating Agency Act, 2008 against the order
taking cognizance dated 13.01.2020 passed in Special (NIA)
Case No.03 of 2018(S) corresponding to R.C.
No.06/2018/NIA/DLI arising out of Tandwa P.S. Case No. 02
of 2016 by the court of Judicial Commissioner-cum-Special
Judge, NIA at Ranchi whereby and whereunder the
cognizance of offences punishable under Section 120-B of the
Indian Penal Code read with Section 17 of the Unlawful
Activities (Prevention) Act, 1967 (hereinafter referred as the
U.A.(P) Act, 1967), substantive offences under Sections 17
and 18 of the U.A.(P) Act, 1967 and under Section 17 of the
Criminal Law Amendment Act, 1908 has been taken.
4. The brief background of the fact stands enumerated as
under :-
The case pertains to the incident of extortion/levy
collection/money laundering by Maoist cadres in Left Wing
Extremism affected States like Jharkhand and Bihar.
A case was registered by Tandwa Police Station, District
Chatra, being Tandwa P.S. Case No.02 of 2016 dated
11.01.2016 under Sections 414/384/386/387/120-B of the
Indian Penal Code, Sections 25(1B) a/26/35 of the Arms Act
and Section 17(1)(2) of the Criminal Law Amendment Act
against Vinod Ganjhu, Munesh Ganjhu, Pradeep Ram, Birbal
Ganjhu, Gopal Singh Bhokta @ Brijesh Ganjhu, Mukesh
Ganjhu, Koharam Ji, Akramanji @ Ravinder Ganjhu,
Anischay Ganjhu, Deepu Singh @ Bhikhan, Bindu Ganjhu
and Bhikhan Ganjhu on the basis of complaint made by Sri
Ramdhari Singh, Sub-Inspector, P.S.-Simariya alleging
therein that some locals have formed an operating committee
in the coal region of Amrapali/Magadh projects under P.S.
Tandwa having relation with banned unlawful association
―Tritya Prastuti Committee (hereinafter referred to as TPC).
Some people of the operating committee were threatening the
contractors, transporters, DO holders and coal businessmen
for extorting/collecting levy in the name of the operatives of
banned TPC organization.
After investigation, Charge-sheet No.17 of 2016 dated
10.03.2016 was filed before the court of C.J.M., Chatra
against arrested accused persons namely, Binod Kumar
Ganjhu, Munesh Ganjhu, Birbal Ganjhu, Pradeep Ram and
Bindu Ganjhu @ Bindeshwar Ganjhu under Sections 414,
384, 386, 387 and 120-B of the Indian Penal Code, Sections
25(1B) a/26/35 of the Arms Act and Section 17(1)(2) of the
Criminal Law Amendment Act and the Investigation was
being continued against absconding accused persons namely,
Gopal Singh Bhokta, @ Brajesh Ganjhu, Mukesh Ganjhu,
Kohramji, Akramanji @ Ravindra Ganjhu, Anischaya Ganjhu,
Deepu Singh @ Bhikan and Bhikan Ganjhu. Further,
Sections 16, 17, 20 and 23 of the U.A.(P) Act were added
against all the F.I.R. named accused persons except Deepu
Singh @ Bhikan on 12.04.2017.
The Central Government, taking into consideration the
gravity of the offence due to seizure of arms & ammunition
and cash to the tune of Rs.1,49,33,610/- and other
incriminating materials from Maoist cadre, exercised its
power conferred under Sub-Section (5) of Section 6 read with
Section 8 of the National Investigation Agency Act, 2008 vide
MHA, New Delhi CTCR Division order no.
11011/08/2018/NIA dated 13.02.2018, directed the NIA to
take up investigation of the case and accordingly Tandwa P.S.
Case No.02 of 2016 dated 11.01.2016 was re-registered as
NIA Case No. R.C.-06/2018/NIA/DLI dated 16.02.2018
under Sections 414, 384, 386, 387 and 120-B of the Indian
Penal Code, Sections 25(1B) a/26/35 of the Arms Act,
Section 17(1)(2) of the Criminal Law Amendment Act and
Sections 16, 17, 20 and 23 of the U.A.(P) Act.
Consequent upon the re-registration of the instant case
in NIA, the record of Tandwa P.S. Case No. 02 of 2016 dated
11.01.2016 was handed over along with all exhibits to the
NIA. The accused persons A-1, A-2, A-3, A-4, A-5, A-6, A-7
and A-8 were examined by remanding them in police custody
by NIA. The NIA has found during course of investigation that
the accused persons have indulged in armed clashes with
CPI-Maoist cadres and other Maoist outfits including the
Jharkhand Liberation Tigers (JLT) in Jharkhand. TPC
activities were reported from Chatra, Gaya, Ramgarh,
Latehar, Aurangabad, Palamu, West Singhbhum, Lohardaga
and Simdega districts. It further revealed during investigation
that before starting the Amrapali colliery, TPC operatives
used to extort levy from local contractors. The part of the
extorted amount was found to be used for strengthening
arms and ammunition stock for expanding the fold of TPC in
the other districts of Jharkhand.
NIA had obtained sanction for prosecution in respect of
accused persons A-1, A-2, A-3, A-4, A-5, A-6, A-7, A-8, A-9,
A-10, A-11, A-12, A-13, A-14, A-15 and A-16 for commission
of offence under U.A.(P) Act from the competent authority
vide MHA, New Delhi Order No. 11011/08/2018/NIA dated
19.12.2018.
First supplementary charge-sheet was submitted
against the aforesaid accused persons i.e. from accused Nos.
1 to 16 on 21.12.2018 while with respect to the rest of the
accused persons/ suspects / unknown including accused
No.17 and others unknown, further investigation is being
continued as per the provision of Section 173(8) of the Code
of Criminal Procedure.
The Judicial Commissioner-cum-Special Judge, NIA
took cognizance against 16 accused persons namely Binod
Kumar Ganjhu (A-1), Munesh Ganjhu (A-2), Birbal Ganjhu
(A-3), Pradeep Ram @ Pradeep Verma (A-4), Bindeshwar
Ganjhu @ Bnindu Ganjhu (A-5), Amar Singh Bhokta @
Laxman Ganjhu @ Lallanji @ Koharam Ji @ Ibrahim (A-6),
Subhan Mian (A-7), Sudhanshu Ranjan @ Chhotu Singh
(A-8), Sanjay Jain (A-9), Ajit Kumar Thakur (A-10), Prem
Vikash @ Mantu Singh (A-11), Mukesh Ganjhu @ Muneshwar
Ganjhu (A-12), Bhikhan Ganjhu (A-13), Akramanji @ Neta Ji
@ Ravinder Ganjhu @ Ram Vinayak Bhokta (A-14), Gopal
Singh Bhokta @ Brijesh Ganjhu (A-15) and Anishchay
Ganjhu (A-16) on 21.12.2018 including 11 newly added and
05 against whom cognizance order was already there for
additional offence under U.A.(P) Act under various sections
mentioned in the charge-sheet.
Further investigation continued and on its completion,
second supplementary charge-sheet was submitted on
10.01.2020 against 05 accused persons namely Mahesh
Agarwal (A-18), Sudesh Kedia (A-19), Vinit Agarwal (A-20),
Amit Agarwal @ Sonu (A-21) and Ajay Kumar @ Ajay Singh
(A-22) with a request to take cognizance and to issue
summon for issuance of process.
In pursuance of the second supplementary charge-
sheet, cognizance has been taken by the court of Judicial
Commissioner-cum-Special Judge, NIA, Ranchi on
13.01.2020 against Mahesh Agarwal (A-18), Sudesh Kedia (A-
19), Vinit Agarwal (A-20), Amit Agarwal @ Sonu (A-21) and
Ajay Kumar @ Ajay Singh (A-22) for commission of offence
under Section 120-B of the Indian Penal Code read with
Section 17 of the U.A.(P) Act (for substantive offences under
Sections 17, 18 and 21) Section 17 of the C.L.A. Act and
Section 201 of the Indian Penal Code and posted the case for
supply of police papers on 18.02.2020. The said order is
under challenge in the instant appeal.
Grounds of challenge of the order taking cognizance
5. Learned senior counsel for the appellants has assailed
the order of cognizance on the following grounds :-
(i) The appellants have not been implicated in first charge-
sheet pertaining to Tandwa P.S. Case No. 02 of 2016 and as
such, implicating them in the second charge-sheet cannot be
said to be proper and justified because the F.I.R. pertaining
to Tandwa P.S. Case No. 02 of 2016 was filed only under
Sections 414/384/386/387/120-B of the Indian Penal Code,
Section 25(1B) a/26/35 of the Arms Act and Section 17(1)(2)
of the Criminal Law Amendment Act against Binod Kumar
Ganjhu, Munesh Ganjhu, Pradeep Ram, Birbal Ganjhu,
Gopal Singh Bhokta, Mukesh Ganjhu, Kohram Ji, Aakraman
Ji, Anischay Ganjhu, Dipu @ Bhikhan and Bhikhan Ganjhu
on the basis of complaint made by Sri Ramdhari Singh, Sub-
Inspector, P.S.-Simariya and on the basis of the investigation,
charge-sheet was submitted vide charge-sheet no. 17 of 2016
dated 10.03.2016 in the court of C.J.M., Chatra against the
arrested accused persons but in the said investigation no
complicity of the appellants was found. Hence, their
implication in the subsequent charge-sheet is not justified.
(ii) No jurisdiction to carry out further investigation without
leave of the court as mandated under the provision of Section
173(8) of the Code of Criminal Procedure.
(iii) The TPC is not mentioned in Schedule-I of the U.A.(P)
Act and as such, even accepting that any money, by way of
levy, has been paid to the members of the T.P.C., the
ingredients of criminal offence as per the provisions of U.A.(P)
Act will not be attracted.
(iv) No case is made out under Sections 15, 17 and 18 of the
U.A.(P) Act. The appellants are the victims of extortion as
would appear from the charge-sheet submitted in pursuance
of Tandwa P.S. Case No. 02 of 2016 but subsequently by way
of submission of second supplementary charge-sheet, the
appellants have been made accused.
(v) No case is made out even if the entire charge-sheet is
taken to be true on the face of it.
(vi) The issue of extortion has not been considered. Even if
any levy has been paid, the intention to use that amount of
levy was not known to the appellants.
(vii) The question of vicarious liability has not been
considered since the appellant (A-20) has been implicated as
an accused in the capacity of Vice President of M/s B K B
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Transport as he had paid levy to the tune of rupees 30 Lakhs
to the members of terrorist gang TPC, appellant (A-21) has
been implicated as an accused in the capacity of Proprietor of
Shree Balaji Transport Limited but he ceased to be Director
on or after 13.05.2019 and appellant (A-18) has been
implicated as an accused in the capacity of Managing
Director of M/s. Adhunik Power and Natural Resources,
Jharkhand but the company has not been implicated in this
case.
(viii) The order taking cognizance is also fit to be quashed
and set aside since the same is not speaking order and hence
the same will be said to be order without application of mind.
6. Learned Counsel for the appellants has relied upon the
judgment rendered by Hon'ble Apex Court in State of
Andhra Pradesh v. Mohd. Hussain alias Saleem [(2014) 1
SCC 258 as well as in Girish Kumar Suneja v. CBI [(2017)
14 SCC 809], in order to substantiate his argument about
the maintainability of the appeals.
On the issue of object of U.A.(P) Act, reliance has been
placed upon the following judgments of Hon'ble Apex Court :-
(i) Reserve Bank of India v. Peerless General
Finance and Investment Co. Ltd. and Others
[(1987) 1 SCC 424]
(ii) Zameer Ahmed Latifur Rehman Sheikh v. State
of Maharashtra [(2010) 5 SCC 246]
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(iii) Kartar Singh v. State of Punjab [(1994) 3 SCC
569]
On the issue of terrorist act/terrorist gang, reliance has
been placed upon the following judgments of Hon'ble Apex
Court :-
(i) Tolaram Relum v. State of Bombay [AIR 1954
SC 496]
(ii) Niranjan Singh Karam Singh Punjabi, Advocate
v. Jitendra Bhimraj Bijjaya and Others [(1990)
4 SCC 76]
(iii) Hitendra Vishnu Thakur v. State of
Maharashtra and Others [(1994) 4 SCC 602]
(iv) People's Union for Civil Liberties and Another
v. Union of India [(2004) 9 SCC 580]
(v) Manjit Singh alias Mange v. Central Bureau of
Investigation [(2011) 11 SCC 578]
(vi) Extra-judicial Execution Victim Families
Association v. Union of India [(2016) 14 SCC
536]
On the issue of terror funding, reliance has been placed
upon the following judgments of Hon'ble Apex Court :-
(i) Amarendra Pratap Singh v. Tej Bahadur
Prajapati and Others [(2004) 10 SCC 65]
(ii) State of Kerala v. Raneef [(2011) 1 SCC 784]
(iii) Arup Bhuyan v. State of Assam [(2011) 3 SCC
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377]
(iv) Indra Das v. State of Assam [(2011) 3 SCC 380]
(v) Vinay Tyagi v. Irshad Ali alias Deeak and
Others [(2013) 5 SCC 762]
(vi) Mehmood Ul Rehman v. Khazir Mohammad
Tunda and Others [(2015) 12 SCC 420]
On applicability of the provision of Section 18 of the
U.A.(P) Act, reliance has been placed upon the judgment
rendered in the case of CBI, Hyderabad v. K. Narayana
Rao, [(2012) 9 SCC 512.
On vicarious liability, reliance has been placed on the
following judgments of Hon'ble Apex Court :-
(i) Aneeta Hada v. Godfather Travels & Tours (P)
Ltd. [(2012) 5 SCC 661]
(ii) Sunil Bharti Mittal v. Central Bureau of
Investigation [(2015) 4 SCC 609]
(iii) K. Sitaram and Another v. CFL Capital
Financial Service Ltd. and Another [(2017) 5
SCC 725]
So far as the proprietary of further investigation is
concerned, reliance has been placed upon the following
judgments of Hon'ble Apex Court :-
(i) Kunjalata Dei v. State [1984 SCC Online Ori
223]
(ii) State v. Gopakumar [1988 SCC Online Ker 66]
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(iii) Yamuna Pathak v. State of Bihar & Anr. [1992
SCC Online Pat 246]
Argument on behalf of National Investigating Agency
7. Mr. Vikramjit Banerjee, learned Additional Solicitor
General of India, assisted by Mr. Rohit Ranjan Prasad,
represented the National Investigating Agency has not raised
the issue of maintainability, as such, we are not deliberating
upon the issue, however, the argument advanced on behalf of
the appellants has been refuted on the following grounds:-
(i) The question regarding seeking leave of the court for
further investigation as required under Section 173(8) of the
Code of Criminal Procedure, it has been submitted that either
before submitting the charge-sheet pertaining to Tandwa P.S
Case No. 02 of 2016 against the arrested accused persons,
the further investigation with respect to the other accused
persons or unknown accused persons were on. Likewise, at
the time of submission of first supplementary charge-sheet
also, while submitting charge-sheet against 16 accused
persons, further investigation was reported to be carried out
against the other accused persons/unknown accused
persons and since the investigation was going on, it has duly
been reported to the concerned court and in that view of the
matter, the further investigation as per the provision of
Section 173(8) of the Code of Criminal Procedure will not be
barred.
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Moreover, the issue pertaining to seeking leave of this
Court or legality or propriety of the first supplementary
charge-sheet has already been answered by Hon'ble Apex
Court in Pradip Ram v. State of Jharkhand [2019 SCC
Online SC 825], holding that submission of supplementary
charge-sheet cannot be held to be illegal and in view thereof,
when the Hon'ble Apex Court has already approved the first
supplementary charge-sheet taking the same principle, the
second supplementary charge-sheet cannot be said to suffer
from any infirmity.
(ii) The TPC, although, has not been mentioned in
Schedule-I of the U.A.(P) Act as a terrorist organization but
the investigation has been conducted treating the TPC as
terrorist gang for which there is no requirement of reference
of such terrorist gang in Schedule-I of the U.A.(P) Act.
(iii) So far as the issue of mens rea or vicarious liability is
concerned, the same cannot be assessed at this stage by this
Court because these two issues pertain to the factual aspect
which can only be adjudicated on appreciation of the facts,
evidence and the documents which can only be appreciated
either at the time of framing of charge or in course of trial but
certainly not at the stage of cognizance.
(iv) So far as victim of extortion is concerned, the same also
pertains to the factual aspects and hence the same can only
be appreciated by the court either at the time of framing of
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charge or in course of trial.
(v) It has been submitted that if the charge-sheet is taken
into consideration, ample material is available showing the
prima facie case against the appellants. The principle laid
down for quashing the F.I.R. or order taking cognizance can
only be exercised if even after going through the F.I.R. or
order taking cognizance, no case is made out in its entirety
but that is not the fact in the present matters since ample
materials are available against the appellants in the charge-
sheet.
(vi) (a) Charge against accused Vinit Agarwal (A-20)
According to him, specific allegation has been surfaced
in course of investigation as would appear from paragraph
17.12 of the second supplementary charge-sheet, so far as it
relates to accused Vinit Agarwal (A-20), wherein it has come
that A-20 is the Vice President of M/s B K B Transport and
he paid levy to the tune of rupees 30 lakhs to members of
terrorist gang TPC including Akraman (A-14). It has further
come that A-20 colluded with members of terrorist gang, TPC
and others and abetted/promoted thereby strengthened TPC
in criminal conspiracy with members of the terrorist gang
with an intent to raise funds for the above said terrorist gang
through co-accused Premvikas @ Mantu Singh (A-11) and
Akraman (A-14) for smooth functioning of his business.
On the basis of such allegations, it is established that
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the appellant colluded with members of terrorist gang (TPC)
and abetted/promoted/thereby strengthened TPC in criminal
conspiracy with members of the terrorist gang with an intent
to raise funds for the above said terrorist gang through
co-accused Premvikas @ Mantu Singh (A-11) and Akraman
(A-14) for smooth functioning of his business. Thereby, it is
established that A-20 criminally conspired with co-accused
and committed offence under Section 120-B of the Indian
Penal Code read with Section 17 of the U.A.(P) Act and
substantive offences under Sections 17 and 18 of the U.A.(P)
Act, Section 17 of the C.L.A. Act, 1908 and Section 201 of the
Indian Penal Code.
It has also come in the chargesheet that one
independent witness in his statement recorded under Section
164 Cr.P.C. has stated that Vinit Agarwal (A-20) used to take
care of finances and operation of the company. He gave the
witness Rs. 30 lakhs (Rs. 10 lakhs each three times) to be
further handed over the Akraman Ji (A-14).
(b) Charge against accused Amit Agarwal (A-21)
According to learned counsel, specific allegation has
surfaced during course of investigation as would appear from
paragraph 17.13 of the second supplementary charge-sheet,
so far as it relates to accused Amit Agarwal (A-21), wherein it
has come that A-21 is the Proprietor of M/s. Shree Balaji
Transport Pvt. Ltd. which transports coal of Hindalco
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company used to arrange cash from local traders and other
businessmen for making payments of levy to Village
Committee Members and TPC for smooth functioning of his
business. It has further come that he criminally conspired
with co-accused Suhanshu Ranjan @ Chhotu Singh (A-8) for
raising fund for terrorist gang TPC on being demanded by
Akraman Ji (A-14). The accused A-21 (appellant) used to
collect funds in cash from different traders by showing a
Rs.10 note to traders and the amount to be collected was
decided by A-21(appellant). Further, from the residential
premises of A-21, cash amounting to Rs.7,91,000/- and
Singapore Dollar 10,000 were seized and from office premises
of A-21 cash amounting to Rs.3,72,750 and Hongkong Dollar
8760 were sized and the above said cash was confirmed as
proceeds of terrorism by designated authority vide order No.
11011/08/2018/NIA, Government of India dated 07.12.2018.
It further transpires from the list of documents
appended to the first-supplementary charge-sheet referred in
second supplementary charge-sheet wherein it has been
referred about the search list dated 09.10.2018 of office of
Sonu Agarwal @ Amit Agarwal and the photocopy of hand
written pamphlet wherein "Sonu Agarwal Avdar hai kin Sonu
Agarwal ke alava kisi ka bhi kaam nhi hona chahiye sara
kaam band karo nahi to Maar denge" is written. Further, copy
of search/seizure list dated 09.10.2018 along with memo,
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rough sketch map, specimen seal sheet towards seizure of
money and documents from the house of the appellant has
been referred.
On the basis of such allegations, it is established that
the appellant colluded with members of terrorist gang (TPC)
and abetted/promoted/thereby strengthened TPC in criminal
conspiracy with members of the terrorist gang with an intent
to raise funds for the above said terrorist gang through co-
accused A-4, A-5, A-7, A-8, A-10 and A-14 for smooth
running of his business. Thereby, it is established that A-21
criminally conspired with co-accused and committed offence
under Section 120-B of the Indian Penal Code read with
Section 17 of the U.A.(P) Act and substantive offences under
Sections 17, 18 and 21 of the U.A.(P) Act and Section 17 of
the C.L.A. Act, 1908.
(b) Charge against accused Mahesh Agarwal (A-18)
According to him, specific allegation has been surfaced
in course of investigation as would appear from paragraph
17.10 of the second supplementary charge-sheet, so far as it
relates to accused Mahesh Agarwal (A-18), wherein it has
come that A-18 is the Managing Director of M/s Adhunik
Power and Natural Resources, Jharkhand. It has further
come that on the instruction of the appellant payment was
made through RTGS mode to coal transporters against work
orders @ Rs.200/- per MT to transporters for the purpose of
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paying to TPC operatives and village committee for smooth
functioning of the business concerns. It has also come that
for promoting his coal trade business, he connived with the
co-accused persons namely Ajay Singh, Akraman and
Bindeswar Ganjhu and thereby abetted in raising of funds for
the terrorist gang.
The documentary and oral evidences also established
that the appellant was paying levy to members of various
groups like Village committee members, CCL, weigh bridge
operators, TPC members such as Akraman (A-14), Bindu
Ganjhu (A-5) and Premvikas @ Mantu Singh (A-11) and was
involved with co-accused persons namely Sanjay Jain (A-9)
and Ajay Kumar @ Ajay Singh in the commission of instant
crime and conspiracy. The E-mail dated 03 April, 2017 and
30th April, 2017 recovered at the instance of co-accused
Sanjay Jain (A-9) and the documents produced by witness
Rakesh Jain revealed that Mahesh Agrawal (A-18) was in the
knowledge of levy being paid to CCL and village committee.
The four e-mails dated 01/05/2017, 02/05/2017,
16/05/2017 and 21/05/2017 which were produced by
witness Rakesh Jain, which were sent by employees of
Adhunik Power & Natural Resources Ltd. to Raja Patni, M/s.
National Parivahana transporter for Adhunik Power, stating
that there is pending payments which was supposed to be
paid to the Committee, regular phone calls being made by
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Akraman @ Netaji, (Regional Commander, TPC)(A-14) to Ajay
Kumar (Branch Office, Ranchi) to pay pending freight charges
to transporters, threatening calls by Akraman @ Netaji to
stop lifting of coal, plans of Ajay Kumar (Branch Office,
Ranchi) to meet Akraman @ Neta Ji, demand draft of Rs. 40
lakh raised in favour of Amrapali loading account committee,
intimating that Sanjay Jain is meeting Akraman Ji @ Neta Ji
(A-14).
Therefore, it is prima facie established that the appellant
was in the knowledge that levy is being paid by their
company to TPC. Further, it has come that the appellant
deliberately deleted the emails marked as CC to him. It is
established that the appellant colluded with members of
terrorist gang TPC, and others and abetted /
promoted/thereby strengthened TPC by engaging in criminal
conspiracy with members of the terrorist gang with an intent
to raise funds for the above said terrorist gang through co-
accused Akraman (A-14), Sanjay Jain (A-9) and Ajay Kumar
@ Ajay Singh (A-22) for smooth running of his business.
Thereby, it is established that A-18 criminally conspired with
co-accused and committed offence under Section 120-B of
the Indian Penal Code read with Section 17 of the U.A.(P) Act
and substantive offences under Sections 17 and 18 of the
U.A.(P) Act, Section 17 of the C.L.A. Act, 1908 and section
201 of the Indian Penal Code.
- 21 -
It has been submitted, therefore, that sufficient
materials have been found in course of investigation by the
NIA against the appellant basis upon which cognizance has
been taken.
(vii) He further submits that interference by the appellate
court at this stage cannot be said to be justified since from
the second supplementary charge-sheet sufficient materials
have surfaced against the appellants showing prima facie
case against them and as such, the principle for quashing of
F.I.R. or order taking cognizance i.e., if no case is made out
even if the allegation either in the F.I.R. or order taking
cognizance is accepted and treated to be true in entirety,
would not be applicable in the case in hand. Taking into
consideration the specific allegation pertaining to levy and
activities of the appellant as referred by the investigating
agency under paragraph 17.12, 17.13 and 17.10 respectively,
it cannot be said that, on bare perusal or on the basis of the
charge-sheet, no case is made out against the appellants.
(viii) So far as non-availability of ingredients of Section 15, 17
and 18 are concerned, it has been submitted that ‗terrorist
act' as has been defined under Section 15 of the Act, 1967,
which stipulates that whoever does any act with the 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
- 22 -
section of the people in India or in any foreign country, by
means as stipulated under Sub-section (a), (a)(i), (a)(ii), (a)(iii)
and (a)(iv). According to learned counsel, the ingredients
pertaining to disruption of any supplies or services essential
to the life of the community in India is available as would be
evident from the bare perusal of the allegation as has been
stipulated under paragraph 17.12, 17.13 and 17.10 of the
second supplementary charge-sheet.
(ix) So far as non-attracting of the ingredient of Section 17
of the Act, 1967 is concerned, it has been submitted that the
punishment for raising funds for terrorist act either directly
or indirectly, whether from a legitimate or illegitimate source,
by such person or persons or by a terrorist organisation or by
a terrorist gang or by an individual terrorist to commit
terrorist act, notwithstanding whether such funds were
actually used or not for commission of such act, shall be
punishable with imprisonment for a term which shall not be
less than five years which may extend to imprisonment for
life. According to learned counsel, as per the specific
allegation the appellants have been found to be involved in
collecting money for raising funds for terrorist gang and
hence, there is ingredient of application of Section 17 of the
Act, 1967. Further, he has given emphasis upon Sub-section
(c) of Section 17 of the Act, 1967 which stipulates raising or
collecting or providing funds, in any manner for the benefit of
- 23 -
or to an individual terrorist, terrorist gang or terrorist
organisations for the purpose not specifically covered under
section 15 shall also be construed as an offence. According to
him, even if the case of the appellants will be taken not
coming under the fold of ‗terrorist act' as defined under
Section 15 of the Act, 1967, then also if it is found that the
funds are being collected to benefit the terrorist gang, Section
17 would be applicable and in that view of the matter, the
argument advanced on behalf of the appellants that no case
is made out under Section 17 of the Act, 1967 has got no
substance.
(x) So far as the ingredient of Section 18 is concerned, the
same is also available since the same provides that whoever
conspires or attempts to commit, or advocates, abets, advises
or incites, directly or knowingly facilitates the commission of,
a terrorist act or any act preparatory to the commission of a
terrorist act, shall be punishable. As would appear from the
material gathered in course of investigation, the appellants
have been found to be involved in arranging cash from local
traders and other businessmen for making payment of levy to
Village Committee Members and TPC for smooth functioning
of his business. Further it has been established that they
criminally conspired with members of the terrorist gang with
an intent to raise funds for the above said terrorist gang
through co-accused Premvikas @ Mantu Singh (A-11) and
- 24 -
Akraman (A-14), therefore, sufficient materials are available
pertaining to conspiracy for raising funds for terrorist gang
TPC.
(xi) So far as the argument of the appellants that order
taking cognizance suffers from non-application of mind since
the same is non-speaking one, learned counsel in this regard,
has submitted by referring to the order taking cognizance
that, the said order cannot be said to be without any
application of mind since the court below has perused the
charge-sheets as also the case diary and thereafter
cognizance has been taken.
(xii) He submits that at the stage of cognizance it is not
required to pass detailed reasoned order. The said argument
can be said to be acceptable if no material is found to be
available in the charge-sheet but herein, in course of
investigation sufficient materials have been surfaced against
the appellants and the court, taking cognizance, has perused
the case diary as also the charge-sheet and thereafter
cognizance has been taken. Therefore, it cannot be said that
the order taking cognizance is without application of mind.
(xiii) He submits, refuting the argument advanced on behalf
of the appellants that since the order taking cognizance is not
supported by a reason, it reflects non-application of mind and
as such, the same may be remitted before the court below for
passing a fresh order after due application of mind, that if
- 25 -
such order would be passed, the same will be said to be a
futile exercise and wastage of the court's time as sufficient
materials are already available in the second supplementary
charge-sheet. Even if the case is remitted, the court below will
only refer the materials available in the charge-sheet in the
specific word and by doing that no material change will come
since in that circumstances also, in view of the sufficient
material available in the second supplementary charge-sheet,
cognizance would be taken by the court below. The question
of remand is only fit to be considered if there is no material
available on record on the basis of which cognizance has
been taken. However, in the case in hand, sufficient material
is available and after perusal of the same the court below has
taken cognizance.
Learned counsel for the NIA has relied upon the
judgments rendered in Prasad Shrikant Purohit v. State of
Maharashtra and Another [(2015) 7 SCC 440], Lt. Col.
Prasad Shrikant Purohit v. State of Maharashtra and
Another [(2018) 11 SCC 458] and National Investigation
Agency v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1].
8. We have heard the learned counsel for the parties at
length. Before proceeding further, this Court deems it fit and
proper to deal with some legal aspects of the matter
pertaining to object and intent of the U.A.(P) Act, 1967 vis-à-
- 26 -
vis the NIA Act, 2008.
The U.A.(P) Act is now the primary anti-terrorist law in
force in India. It was enacted by Parliament in 1967. The
original Act was targeted at unlawful activities of a general
nature, and stringent provisions on terrorism were added
only later through various amendments starting in 2004,
following POTA's repeal. It was subsequently amended in
2008 in response to the Mumbai terrorist attacks. The
amended UAPA incorporated the definition of a ―terrorist act‖
under Section 15 and created new terrorist offence. The most
recent amendments were made in 2013, which dealt largely
with the economic and financial aspects of terrorism. By
virtue of Unlawful Activities (Prevention) of Amendment Act,
2012, the ―terrorist act‖ has been defined under U.A.(P) Act,
1967 under Section 2(k) which reads as under :-
―2(k) ―terrorist act‖ has the meaning assigned to it in
section 15, and the expressions ―terrorism‖ and
―terrorist‖ shall be construed accordingly.‖
The ―terrorist gang‖ has been defined under Section 2(l)
which reads as under :-
―(l) ―terrorist gang‖ means any association, other than
terrorist organisation, whether systematic or
otherwise, which is concerned with, or involved in,
terrorist act.‖
The ―terrorist organization‖ has been defined under
Section 2(m) which reads as under :-
―(m) ―terrorist organisation‖ means an organisation
listed in the Schedule or an organisation operating
- 27 -
under the same name as an organisation so listed.‖
The ―unlawful activity has been defined under Section
2(o) which reads as under :-
―(o) ―unlawful activity‖, in relation to an individual or
association, means any action taken by such
individual or association (whether by committing an
act or by words, either spoken or written, or by signs
or by visible representation or otherwise),--
(i) which is intended, or supports any claim, to bring
about, on any ground whatsoever, the cession of a part
of the territory of India or the secession of a part of the
territory of India from the Union, or which incites any
individual or group of individuals to bring about such
cession or secession; or
(ii) which disclaims, questions, disrupts or is intended
to disrupt the sovereignty and territorial integrity of
India; or
(iii) which causes or is intended to cause disaffection
against India.‖
It is evident from the definition of ―terrorist organization‖
that it means an organisation listed in the Schedule or an
organisation operating under the same name as an
organisation so listed, meaning thereby, the applicability of
penal offence as mandated under the provision of U.A.(P) Act,
1967 will only be applicable to a terrorist organization which
has been listed in Schedule-I.
The ―terrorist gang‖ means any association, other than
terrorist organisation, whether systematic or otherwise,
which is concerned with, or involved in, terrorist act.
If the definition of ―terrorist organization‖ as contained
- 28 -
under Section 2(m) and ―terrorist gang‖, as stipulated under
the provision of Section 2(l) are read conjointly, it would be
evident that if the organization has not been listed in
Schedule as contained in U.A.(P) Act, 1967, even then the
penal offence would be attracted against a gang which is
concerned with, or involved in, terrorist act.
The ―terrorist act‖ has been defined under Section 2(k)
has the meaning assigned to it in Section 15. Section 15
contains the activities which will be treated to be a ―terrorist
act‖. Section 15 reads as under :-
"15. Terrorist act.--4(1) Whoever does 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,--
(a) by using bombs, dynamite or other explosive
substances or inflammable substances or firearms or
other lethal weapons or poisonous or noxious gases or
other chemicals or by any other substances (whether
biological radioactive, nuclear or otherwise) of a
hazardous nature or by any other means of whatever
nature to cause or likely to cause--
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to
the life of the community in India or in any foreign
country; or
(iiia) damage to, the monetary stability of India by way
of production or smuggling or circulation of high
quality counterfeit Indian paper currency, coin or of
any other material; or]
(iv) damage or destruction of any property in India or
- 29 -
in a foreign country used or intended to be used for
the defence of India or in connection with any other
purposes of the Government of India, any State
Government or any of their agencies; or
(b) overawes by means of criminal force or the show of
criminal force or attempts to do so or causes death of
any public functionary or attempts to cause death of
any public functionary; or
(c) detains, kidnaps or abducts any person and
threatens to kill or injure such person or does any
other act in order to compel the Government of India,
any State Government or the Government of a foreign
country or an international or inter-governmental
organisation or any other person to do or abstain from
doing any act; or commits a terrorist act.
[Explanation.--For the purpose of this sub-section,--
(a) ―public functionary‖ means the constitutional
authorities or any other functionary notified in the
Official Gazette by the Central Government as public
functionary;
(b) ―high quality counterfeit Indian currency‖ means
the counterfeit currency as may be declared after
examination by an authorised or notified forensic
authority that such currency imitates or compromises
with the key security features as specified in the Third
Schedule.]
(2) The terrorist act includes an act which constitutes
an offence within the scope of, and as defined in any of
the treaties specified in the Second Schedule.
As per the provision of Section 15, whoever has acted
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 would be covered under the definition of ―terrorist
- 30 -
act‖. This provision, therefore, stipulates that any activity
with an intent to strike terror or likely to strike terror will
come under the fold of terrorist act if done to threaten the
unity, integrity, security, sovereignty of India or economic
security, which has been inserted by way of Act 3 of 2013
with effect from 01.02.2013.
Section 17 provides punishment for raising funds for
terrorist act which reads as under :-
―17. Punishment for raising funds for terrorist
act.--Whoever, in India or in a foreign country, directly
or indirectly, raises or provides funds or collects funds,
whether from a legitimate or illegitimate source, from
any person or persons or attempts to provide to, or
raises or collects funds for any person or persons,
knowing that such funds are likely to be used, in full
or in part by such person or persons or by a terrorist
organisation or by a terrorist gang or by an individual
terrorist to commit a terrorist act, notwithstanding
whether such funds were actually used or not for
commission of such act, shall be punishable with
imprisonment for a term which shall not be less than
five years but which may extend to imprisonment for
life, and shall also be liable to fine.
Explanation.--For the purpose of this section,--
(a) participating, organising or directing in any of the
acts stated therein shall constitute an offence;
(b) raising funds shall include raising or collecting or
providing funds through production or smuggling or
circulation of high quality counterfeit Indian currency;
and
(c) 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 15 shall also be
- 31 -
construed as an offence.
It is evident from the contents of Section 17 of the Act,
1967 that whoever, in India or in a foreign country, directly
or indirectly, raises or provides funds or collects funds,
whether from a legitimate or illegitimate source, from any
person or persons or attempts to provide to, or raises or
collects funds for any person or persons, knowing that such
funds are likely to be used, in full or in part by such person
or persons or by a terrorist organisation or by a terrorist gang
or by an individual terrorist to commit a terrorist act,
notwithstanding whether such funds were actually used or
not for commission of such act, the same would be covered
under the aforesaid provision. Meaning thereby, raising of
funds directly or indirectly to commit a terrorist act by a
terrorist organization or by terrorist gang or by an individual
terrorist, irrespective of the fact whether this was actually
used for commission of such act, would be punishable under
Section 17.
Sub-section (c) of Section 17 of the Act, 1967 enlarges
the scope of the terrorist act since the same provides that any
act for the benefit of an individual terrorist, terrorist gang or
terrorist organisation even if not specifically covered under
Section 15 shall also be construed as an offence.
Section 22(A) of the Act, 1967 stipulates about the
provision for commission of offence by companies which
- 32 -
reads as under :-
―22A. Offences by companies.--(1) Where an offence
under this Act has been committed by a company,
every person (including promoters of the company)
who, at the time the offence was committed, was in
charge of, and was responsible to, the company for the
conduct of the business of the company, as well as the
company, shall be deemed to be guilty of the offence
and shall be liable to be proceeded against and
punished accordingly:
Provided that nothing contained in this sub-section
shall render any such person (including promoters)
liable to any punishment provided in this Act, if he
proves that the offence was committed without his
knowledge or that he had exercised reasonable care to
prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section
(1), where an offence under this Act has been
committed by a company and it is proved that the
offence has been committed with the consent or
connivance of, or is attributable to, any neglect on the
part of, any promoter, director, manager, secretary or
other officer of the company, such promoter, director,
manager, secretary or other officer shall also be
deemed to be guilty of that offence and shall be liable
to be proceeded against and punished accordingly.
Explanation.--For the purposes of this section,--
(a) ―company‖ means any body corporate and includes
a firm or other association of individuals; and
(b) ―director‖, in relation to a firm, means a partner in
the firm.‖
It is evident from the aforesaid provision that where an
offence under this Act has been committed by a company,
every person (including promoters of the company) who, at
the time the offence was committed, was in charge of, and
- 33 -
was responsible to, the company for the conduct of the
business of the company, as well as the company, shall be
deemed to be guilty of the offence and shall be liable to be
proceeded against and punished accordingly. Meaning
thereby, the main ingredient for attracting the aforesaid
provision will be in the case when the offence has been
committed by a company and in that circumstances whoever
is connected with the affairs of the company shall be deemed
to be guilty of the offence.
9. The reference of the National Investigation Agency Act,
2008 is also required to be made since further investigation
has been directed to be conducted by the NIA in the instant
case. The NIA Act, 2008 has come into being in order to
constitute an investigation agency at the national level to
investigate and prosecute offences affecting the sovereignty,
security and integrity of India, security of State, friendly
relations with foreign States and offences under Acts enacted
to implement international treaties, agreements, conventions
and resolutions of the United Nations, its agencies and other
international organisations and for matters connected
therewith or incidental thereto.
The constitutional validity of the NIA Act was challenged
before the Bombay High Court by an accused in the
Malegaon bomb blast case on the ground of lack of
legislative competence of Parliament to enact such law. The
- 34 -
Bombay High Court upheld the constitutional validity of the
NIA Act and while doing so, it has been held that the NIA has
been created as an investigating agency at the national level
to investigate and prosecute offences affecting the
sovereignty, security and integrity of India and other matters
such as friendly relations with the foreign States. This was
not akin to setting up of a police force.
Further, the court concluded that Parliament had the
legislative competence to enact the NIA Act and the
Parliament can enact the laws in matters not covered under
the list.
The court looked at several entries that would enable
the Parliament to enact such a law from List-I that allows the
Parliament to set-up CBI and two of the concurrent list
dealing with the criminal law and criminal procedure
respectively.
Further, the court has held that since the Parliament is
not incompetent for enacting law for the police force in the
union territories it could also set up and agency as NIA to
deal with the offences which include offences that are within
the domain of the Centre related to hijacking and weapons of
mass destruction.
Section 6 of the NIA Act, 2008 contains provision
pertaining to investigation of Scheduled offences which reads
as under :-
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―6. Investigation of Scheduled Offences.--(1) On
receipt of information and recording thereof under
section 154 of the Code relating to any Scheduled
Offence the officer-in-charge of the police station shall
forward the report to the State Government forthwith.
(2) On receipt of the report under sub-section (1), the
State Government shall forward the report to the
Central Government as expeditiously as possible.
(3) On receipt of report from the State Government, the
Central Government shall determine on the basis of
information made available by the State Government
or received from other sources, within fifteen days from
the date of receipt of the report, whether the offence is
a Scheduled Offence or not and also whether, having
regard to the gravity of the offence and other relevant
factors, it is a fit case to be investigated by the Agency.
(4) Where the Central Government is of the opinion
that the offence is a Scheduled Offence and it is a fit
case to be investigated by the Agency, it shall direct
the Agency to investigate the said offence.
(5) Notwithstanding anything contained in this section,
if the Central Government is of the opinion that a
Scheduled Offence has been committed which is
required to be investigated under this Act, it may, suo
motu, direct the Agency to investigate the said offence.
(6) Where any direction has been given under sub-
section (4) or sub-section (5), the State Government
and any police officer of the State Government
investigating the offence shall not proceed with the
investigation and shall forthwith transmit the relevant
documents and records to the Agency.
(7) For the removal of doubts, it is hereby declared that
till the Agency takes up the investigation of the case, it
shall be the duty of the officer-in-charge of the police
station to continue the investigation.
It has been provided in the provision of Section 6 that
on receipt of information and recording thereof under section
- 36 -
154 of the Code of Criminal Procedure relating to any
Scheduled Offence the officer-in-charge of the police station
shall forward the report to the State Government forthwith
and on receipt of report from the State Government, the
Central Government shall determine on the basis of
information made available by the State Government or
received from other sources, within fifteen days from the date
of receipt of the report, whether the offence is a Scheduled
Offence or not and also whether, having regard to the gravity
of the offence and other relevant factors, it is a fit case to be
investigated by the Agency. Where the Central Government is
of the opinion that the offence is a Scheduled Offence and it
is a fit case to be investigated by the Agency, it shall direct
the Agency to investigate the said offence.
The Central Government has also got power in view of
the provision of Sub-Section (5) or Sub-Section (6) that if the
Central Government is of the opinion that a Scheduled
Offence has been committed which is required to be
investigated under this Act, it may, suo motu, direct the
Agency to investigate the said offence. In such circumstances,
the State Government and any police officer of the State
Government investigating the offence shall not proceed with
the investigation and shall forthwith transmit the relevant
documents and records to the Agency.
Section 7 provides power to transfer investigation to the
- 37 -
State Government as also Section 8 provides power to
investigate connected offences.
Section 21 provides provision for appeal whereunder an
appeal shall lie from any judgment, sentence or order, not
being an interlocutory order, of a Special Court to the High
Court both on facts and on law. Therefore, in pursuance to
the provision of Section 21, the appellate court is to exercise
its appellate power both on facts and law.
10. In the background of the facts/legal provision as stated
hereinabove, following questions arise for consideration :-
(i) Whether the appeals are maintainable?
(ii) Whether the NIA has exceeded its jurisdiction in
conducting further investigation?
(iii) Whether entire investigation vitiates if TPC is not
mentioned in Schedule-I of U.A.(P) Act as a
terrorist organization ?
(iv) Whether on the face of the charge-sheet and order
taking cognizance no case is made out against the
appellants?
(v) Whether issues of mens rea, vicarious liability and
victim of extortion can be considered at the stage of
cognizance?
(vi) Whether order taking cognizance requires detailed
reasons and the order of cognizance impugned in
this appeal can be said to be without application of
- 38 -
mind.
(vii) Whether it is a fit case where the matter may be
remitted to the learned Special Judge for delving
upon the issue of taking cognizance afresh?
(viii) Whether order of sanction is valid?
11. So far as the first issue whether appeal is
maintainable, learned counsel for the appellants, although
has not addressed the Court on this point at the time of
argument but as would appear from the written notes of
argument submitted on behalf of the appellants, the issue of
maintainability has been raised.
This Court, at the time of argument, had put a query to
learned senior counsel appearing on behalf of the NIA as to
whether the issue of maintainability of the instant appeals
under the provision of Section 21 of the NIA Act is in dispute?
Mr. Vikramjit Banerjee, learned Additional Solicitor General
of India representing NIA, in all fairness, has submitted that
there is no issue of maintainability, rather he has submitted
that the appeals are maintainable.
This Court, on the basis of the submission made by the
learned counsel for the NIA, is of the view that since the issue
of maintainability is not in dispute, there is no need to
answer this issue.
12. The second issue pertains to whether NIA has
- 39 -
exceeded its jurisdiction in conducting further
investigation.
The argument has been advanced on this issue by the
learned counsel appearing for the appellants that the
complicity of the appellants in the instant case has surfaced
in the second supplementary charge-sheet. Prior to
submission of the second supplementary charge-sheet, a case
being Tandwa P.S. Case No. 02 of 2016 was instituted for
commission of offence under Sections 414/384/386/387/
120-B of the Indian Penal Code, Sections 25(1B) a/26/35 of
the Arms Act and Section 17(1)(2) of the Criminal Law
Amendment Act against Binod Kumar Ganjhu, Munesh
Ganjhu, Pradeep Ram, Birbal Ganjhu, Gopal Singh Bhokta,
Mukesh Ganjhu, Kohram Ji, Aakraman Ji, Anischay Ganjhu,
Dipu @ Bhikhan and Bhikhan Ganjhu in which charge-sheet
was filed being chargesheet No. 17/16 dated 10.03.2016 in
the court of Chief Judicial Magistrate, Chatra against the
arrested accused persons namely, Binod Kumar Ganjhu,
Munesh Ganjhu, Birbal Ganjhu, Pradeep Ram and Bindu
Ganjhu @ Bindeshwar Ganjhu under Sections 414, 384, 386,
387 and 120-B of the Indian Penal Code, Sections 25(1B)
a/26/35 of the Arms Act and Section 17(1)(2) of the Criminal
Law Amendment Act and as such, it is evident from the first
charge-sheet that the names of the appellants do not
transpire therein but without any leave of the court as
- 40 -
required under Section 173(8) of the Code of Criminal
Procedure, further investigation has been carried out and
even after submission of first supplementary charge-sheet no
leave of the court below has been obtained for further
investigation. The second supplementary charge-sheet has
been submitted in which the complicity of the appellants has
transpired, on the basis of which, cognizance has been taken
by the learned Special Judge, NIA, Ranchi.
Learned senior counsel, representing the NIA, has
submitted that after institution of the F.I.R. being Tandwa
P.S. Case No. 02 of 2016 dated 11.01.2016, certain
incriminating materials surfaced with respect to involvement
of TPC which has been declared as unlawful association by
virtue of gazette notification issued by the Department of
Home, Government of Jharkhand dated 14.07.2006 and
therefore, the Central Government, in exercise of power
conferred under Sub-Section (5) of Section 6 read with
Section 8 of the NIA Act, 2008 vide MHA, New Delhi CTCR
Division order no. 11011/08/2018/NIA dated 13.02.2018,
directed the NIA to take up investigation of the case and
accordingly Tandwa P.S. Case No.02 of 2016 dated
11.01.2016 was re-registered as NIA Case No. R.C.-
06/2018/NIA/DLI dated 16.02.2018 under Sections 414,
384, 386, 387 and 120-B of the Indian Penal Code, Sections
25(1B) a/26/35 of the Arms Act, Section 17(1)(2) of the
- 41 -
Criminal Law Amendment Act and Sections 16, 17, 20 and
23 of the U.A.(P) Act and in pursuance thereof, the record of
Tandwa P.S. Case No. 02 of 2016 dated 11.01.2016 was
handed over to the NIA.
It has further been submitted by referring to the order
taking cognizance dated 11.03.2016 in Tandwa P.S. Case No.
02 of 2016 that investigation with respect to remaining
accused persons was allowed to be continued and in such
circumstances, further investigation carried out by the NIA
cannot be said to suffer from infirmity.
Further submission has been made that even at the
time of submission of first charge-sheet, the court below has
been apprised that investigation in respect of accused
persons A-1 to A-16 has been completed but as regard to the
rest of the accused persons/suspect/unknown accused
including A-17 and other unknown, further investigation had
continued as per the provision of Section 173(8) of the Code
of Criminal Procedure and in that view of the matter, the
investigation was carried out and, thereafter, second
supplementary charge-sheet was submitted. In view of such
factual aspect, it cannot be said that the further investigation
conducted leading to submission of second supplementary
charge-sheet is in the teeth of the provision of Section 173(8)
of the Code of Criminal Procedure.
It has further been submitted that the said issue has
- 42 -
already been dealt with by Hon'ble Apex Court in Pradeep
Ram v. State of Jharkhand and Another [2019 SCC
OnLine SC 825.
13. This Court, having heard the learned counsel for the
parties on this issue, deems it fit and proper first to refer the
relevant provision of NIA Act, 2008 for the purpose of
answering the issue in question. The relevant provision is
Section 6 quoted as above.
It is evident from the provision of Section 6 of the Act,
2008 that on receipt of information and recording thereof
under section 154 of the Code of Criminal Procedure relating
to any Scheduled Offence, the officer-in-charge of the police
station shall forward the report to the State Government
forthwith.
Sub-Section (2) thereof stipulates that on receipt of the
report under sub-section (1), the State Government shall
forward the report to the Central Government as
expeditiously as possible.
Sub-Section (3) of Section 6 provides that on receipt of
report from the State Government, the Central Government
shall determine on the basis of information made available by
the State Government or received from other sources, within
fifteen days from the date of receipt of the report as to
whether the offence is a Scheduled Offence or not and also
whether, having regard to the gravity of the offence and other
- 43 -
relevant factors, is it a fit case to be investigated by the
Agency.
Sub-Section (4) provides that where the Central
Government is of the opinion that the offence is a Scheduled
Offence and it is a fit case to be investigated by the Agency, it
shall direct the Agency to investigate the said offence.
Sub-Section (5) provides that notwithstanding anything
contained in this section, if the Central Government is of the
opinion that a Scheduled Offence has been committed which
is required to be investigated under this Act, it may, suo
motu, direct the Agency to investigate the said offence.
Sub-Section (6) thereof provides that where any
direction has been given under sub-section (4) or sub-section
(5), the State Government and any police officer of the State
Government investigating the offence shall not proceed with
the investigation and shall forthwith transmit the relevant
documents and records to the Agency.
Thus, it is evident that Central Government has got
such power under the provision of Section 6.
The fact which has been brought on record by way of
first supplementary charge-sheet wherefrom it transpires that
initially before the Tandwa Police Station an F.I.R. was
registered being Tandwa P.S. Case No. 02 of 2016 dated
11.01.2016 but some incriminating materials have come in
course of investigation pertaining to raising of funds for TPC,
- 44 -
a terrorist gang, which has been declared as a proscribed
organization by the Home Department of the State of
Jharkhand vide notification dated 14.07.2006. The
Government of India, Ministry of Home Affairs, CTCR
Division, New Delhi vide its order F.No. 11011/08/2018/NIA
dated 13.02.2018, in exercise of power conferred under Sub-
Section (5) of the Section 6 read with Section 8 of the NIA Act,
2008 suo motu directed the NIA to take up the investigation of
the case registered vide Tandwa P.S. Case No. 02 of 2016. In
pursuance to the aforesaid direction, the investigation has
been taken further by the NIA pertaining to the aforesaid
case. The NIA has started investigation after records having
been received from Tandwa Police Station and submitted first
supplementary charge-sheet on 21.12.2018 against 16
accused persons while the investigation against rest of the
accused persons/suspects/unknown accused including A-17
and other unknown has been continued as per the provision
of Section 173(8) of the Code of Criminal Procedure.
Thereafter, the investigation has been carried out and on
completion, the second supplementary charge-sheet has been
submitted on 10.01.2020 against 05 accused persons
including the appellants herein.
The issue has been agitated by the learned senior
counsel appearing for the appellant that under the provision
of Section 173(8) of the Code of Criminal Procedure, for the
- 45 -
purpose of carrying out further investigation the leave of the
court is required and in absence thereof the entire
investigation will be said to be vitiated but on the basis of the
factual aspect as referred hereinabove and on the basis of
the materials available in the charge-sheet that either while
submitting the first supplementary charge-sheet or second
supplementary charge-sheet the further investigation has
continued in pursuance to the provision of Section 173(8) of
the Code of Criminal Procedure as because the provision of
Section 173(8) specifically provides that nothing in this
section shall be deemed to preclude further investigation in
respect of an offence after a report under sub-section (2) has
been forwarded to the Magistrate and, where upon such
investigation, the officer in charge of the police station
obtains further evidence, oral or documentary, he shall
forward to the Magistrate a further report or reports
regarding such evidence in the form prescribed; and the
provisions of sub-sections (2) to (6) shall, as far as may be,
apply in relation to such report or reports as they apply in
relation to a report forwarded under sub-section (2).
It is clear from the provision of Section 173(8) that there
is no embargo in carrying out further investigation ever after
submission of the charge-sheet. As has been referred
hereinabove that the further investigation has continued after
submission of the first charge-sheet submitted by the NIA
- 46 -
and thereafter second supplementary charge-sheet has been
submitted and hence, it cannot be said that the further
investigation either of the first supplementary charge-sheet or
the second supplementary charge-sheet is in the teeth of the
provision of Section 173(8) of the Code of Criminal Procedure.
Further, it required to refer herein that the issue pertaining
to first supplementary charge-sheet fell for consideration
before the Hon'ble Apex Court in the case of Pradeep Ram
who is also an accused in this case(A-5) and one of the issues
framed, as would be evident from paragraph 9.3.(iii), that
whether NIA could conduct any further investigation in the
matter when investigation in PS Case No. 2 of 2016 having
already been completed and charge-sheet has been submitted
on 10-3-2016 with regard to which cognizance has already
been taken by the Chief Judicial Magistrate, Chatra on
11-3-2016?
The Hon'ble Apex Court [Pradeep Ram v. State of
Jharkhand and Another (Supra)] answering the aforesaid
issue has given a finding at paragraph 49 that ―we, thus, do
not find any lack of jurisdiction in NIA to carry on further
investigation and submit a supplementary report. In the
counter-affidavit, it has been stated by the Union of India that
NIA has concluded investigation and already a charge-sheet
has been submitted on 21-12-2018 vide first supplementary
charge-sheet. We, thus, do not find any lack of jurisdiction in
- 47 -
the NIA to carry on further investigation in the facts of the
present case".
In that view of the matter, when the Hon'ble Apex Court
has already decided about the jurisdiction of NIA, further
investigation cannot be questioned. It requires to refer that in
the first supplementary charge-sheet specific stipulation has
been made that investigation against some of the accused
persons is continuing as would appear from paragraph 17.28
as contained in first supplementary charge-sheet which is
being referred for ready reference :-
"17.28. Continuance of further investigation u/s
173(8) CrPC against Deepu @ Bhikhan (A-17)
and others : As regard to the rest of the accused
persons/suspects/unknown accused including
A-17 and others unknown, further investigation
is being continued as per the provisions of
173(8) CrPC."
Learned counsel appearing for the appellants has relied
upon the judgment rendered by Orissa High Court in the case
of Kunjalata Dei v. State of Orissa [1984 SCC OnLine Ori
223], the judgment rendered by Kerala High Court in the
case of State v. Gopakumar [1988 SCC OnLine Ker 66],
the judgment rendered by Patna High Court in the case of
Yamuna Pathak v. The State of Bihar and Another [1992
SCC OnLine Pat 246] as also the judgment rendered by
Hon'ble Apex Court in the case of Vinay Tyagi v. Irshad Ali
- 48 -
Alias Deepak and Others [(2013) 5 SCC 762].
In all these judgments, the question fell for
consideration as to whether without obtaining further
evidence, oral or documentary, further report can be
submitted by the police? There is no dispute that further
report can be submitted by the police under Section 173(8) of
the Code of Criminal Procedure. Taking into consideration the
aforesaid provision of law, it has been decided in Kunjalata
Dei v. State of Orissa (Supra) that even after further
investigation under the provision of Section 173(8) Cr.P.C. no
incriminating material has come and in that view of the
matter order was passed by the revisional court holding that
order of the Sessions Judge directing framing of charge
against the petitioner was not justified.
Even in the case of State v. Gopakumar (Supra), the
court has taken into consideration about the further material
wherein it has been decided that before resorting to the
provision of Section 173(8) Cr.P.C. the formal permission is to
be obtained from the court.
In the case of Yamuna Pathak v. The State of Bihar
and Another (Supra) the fact involved was that even after
further investigation no fresh material had come and
subsequent charge-sheet was submitted on the basis of same
material which had already been collected before submission
of charge-sheet.
- 49 -
In the case of Vinay Tyagi v. Irshad Ali Alias Deepak
and Others (Supra) the issue which fell for consideration
before the Hon'ble Apex Court was that there is no specific
embargo upon the power of the Magistrate to direct further
investigation on presentation of report in terms of Section
173 (2) of the Cr.P.C. The supplementary report filed by the
investigating agency shall be dealt with as a part of primary
report. Both these reports have to be read conjointly and it is
the cumulative effect of the reports and the documents
annexed thereto to which the court would be expected to
apply its mind to determine whether there exist grounds to
presume that the accused has committed the offence. If the
answer is in the negative on the basis of these reports, the
court shall discharge an accused in compliance with the
provisions of Section 227 of the Code.
Thus, in the said case the Hon'ble Apex Court has dealt
with the issue of an order which is to be tested at the time of
an application filed under Section 227 or 228 Cr.P.C.,
therefore, the said ratio of the judgment will not be applicable
in the present case since the stage of charge has not yet
come, rather, only order taking cognizance is under
challenge.
It is settled position of law that each and every judgment
is to be tested on the basis of the facts and circumstances
involved in that case. The fact of the case in hand is that after
- 50 -
submission of second supplementary charge-sheet sufficient
material has been surfaced against the appellants as would
appear from paragraph 17.12, 17.13 and 17.10 of the second
supplementary charge-sheet. So far as seeking permission for
further investigation is concerned, the same has been
reported to the concerned court as has been dealt
hereinabove and the issue has also been answered by Hon'ble
Apex Court in Pradeep Ram v. State of Jharkhand and
Another (Supra) case.
As such, the facts of the cases referred hereinabove are
not applicable to the facts of this case.
In that view of the matter, we are of the considered view
that the NIA has not exceeded its jurisdiction in conducting
further investigation. The question is answered accordingly.
14. Whether entire investigation vitiates if TPC is not
mentioned in Schedule-I of U.A.(P) Act as a terrorist
organization?
So far as this issue is concerned, submission has been
made by the learned counsel appearing on behalf of the
appellantd by referring to the provision of U.A.(P) Act, 1967,
more particularly, the provision as contained under Section
2(m) wherein the definition of terrorist organization has been
provided which means an organisation listed in the Schedule
or an organisation operating under the same name as an
organisation so listed. While emphasizing upon the said
- 51 -
definition, submission has been made that TPC being not
referred in Schedule as contained in U.A.(P) Act, 1967, as
such, the TPC cannot be termed as a terrorist organization
and in that view of the matter, the entire investigation carried
out, keeping the provision of U.A.(P) Act, 1967 into
consideration, will vitiate.
Learned senior counsel appearing for the NIA has
submitted by referring to the charge-sheet that the TPC has
not been considered to be a ‗terrorist organization' by the
investigating agency, rather, considering TPC as a ‗terrorist
gang', the entire investigation has been conducted and as per
the definition of terrorist gang in Section 2(l), ―terrorist gang‖
means any association, other than ‗terrorist organisation',
whether systematic or otherwise, which is concerned with, or
involved in, terrorist act.
15. We have heard learned counsel for the parties on this
issue and deem it fit and proper to refer the definition of
―terrorist organization‖ vis-à-vis ―terrorist gang‖ which read
as under :-
―2(l) ―terrorist gang‖ means any association, other
than terrorist organisation, whether systematic or
otherwise, which is concerned with, or involved in,
terrorist act.‖
―2(m) ―terrorist organisation‖ means an organisation
listed in the Schedule or an organisation operating
under the same name as an organisation so listed.‖
There is no dispute that for coming into the fold of
- 52 -
U.A.(P) Act, 1967, if any investigation is being conducted
considering the organization to be a ‗terrorist organization',
reference of such organization is required to be there in the
Schedule and in absence thereof, the provision of U.A.(P) Act,
1967 will not be applicable.
The ‗terrorist gang' has also been defined which means
any association, other than ‗terrorist organisation', whether
systematic or otherwise, which is concerned with, or involved
in, terrorist act, meaning thereby that if any organization or
association has been found to be involved in terrorist act, the
same will be treated to be a ‗terrorist gang' irrespective of the
fact that such organization has not been listed in the
Schedule as contained in U.A.(P) Act, 1967.
This Court has gone across the charge-sheet submitted
by NIA and found therefrom that the TPC has not been
considered as a ‗terrorist organization' rather it has been
considered to be a ‗terrorist gang' and thereafter the entire
investigation has been conducted. Therefore, even if an
organization or an association is not referred in the Schedule,
the investigation or complicity of the organization or
association or the individual associated with such association
will not be carried out is not the purport of the Act, 1967,
rather if involvement of an association in terrorist act is
found by the investigating agency then also the complicity
can be attributed for commission of offence under the penal
- 53 -
offence of U.A.(P) Act, 1967.
It requires further to refer the scope of definition of
terrorist act as has been changed in the year 2004 as also by
way of amendment in the year 2008. Section 15 of the U.A.(P)
Act, 1967 reads as under :-
"15. Terrorist act.--4(1) Whoever does 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,--
(a) by using bombs, dynamite or other explosive
substances or inflammable substances or firearms or
other lethal weapons or poisonous or noxious gases or
other chemicals or by any other substances (whether
biological radioactive, nuclear or otherwise) of a
hazardous nature or by any other means of whatever
nature to cause or likely to cause--
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to
the life of the community in India or in any foreign
country; or
(iiia) damage to, the monetary stability of India by way
of production or smuggling or circulation of high
quality counterfeit Indian paper currency, coin or of
any other material; or]
(iv) damage or destruction of any property in India or
in a foreign country used or intended to be used for
the defence of India or in connection with any other
purposes of the Government of India, any State
Government or any of their agencies; or
(b) overawes by means of criminal force or the show of
criminal force or attempts to do so or causes death of
any public functionary or attempts to cause death of
- 54 -
any public functionary; or
(c) detains, kidnaps or abducts any person and
threatens to kill or injure such person or does any
other act in order to compel the Government of India,
any State Government or the Government of a foreign
country or an international or inter-governmental
organisation or any other person to do or abstain from
doing any act; or commits a terrorist act.
[Explanation.--For the purpose of this sub-section,--
(a) ―public functionary‖ means the constitutional
authorities or any other functionary notified in the
Official Gazette by the Central Government as public
functionary;
(b) ―high quality counterfeit Indian currency‖ means
the counterfeit currency as may be declared after
examination by an authorised or notified forensic
authority that such currency imitates or compromises
with the key security features as specified in the Third
Schedule.]
(2) The terrorist act includes an act which constitutes
an offence within the scope of, and as defined in any of
the treaties specified in the Second Schedule.
It is evident from the above definition that whoever, 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,
does any act by using bombs, dynamite or other explosive
substances or inflammable substances or firearms or other
lethal weapons or poisonous or noxious gases or other
chemicals or by any other substances (whether biological
radioactive, nuclear or otherwise) of a hazardous nature in
- 55 -
such a manner as to cause or likely to cause death of, or
injuries to, any person or persons or loss of, or damage to, or
destruction of, property or disruption of any supplies or
services essential to the life of the community in India or in
any foreign country or causes damage or destruction of any
property or equipment used or intended to be used for the
defence of India or in connection with any other purposes of
the Government of India, any State Government or any of
their agencies, detains any person, kidnaps or abducts any
person and threatens to kill or injure such person or does
any other act in order to compel the Government of India, any
State Government or the Government of a foreign country or
any other person to do or abstain from doing any act,
commits a terrorist act.
Thus, the emphasis of Section 15 in the Act of 2004 was
only on the unity, integrity, security or sovereignty of India in
general but also on the people or any section of people be it in
India or in foreign country. Any act, therefore, done with
intent to threaten or likely to threaten the unity, integrity,
security, or sovereignty of India or to strike terror in the
people or any section of the people in India or in any foreign
country was termed as terrorist act.
Now coming to the Act of 2008 as stood amended from
31.12.2008, the definition of the terrorist has been expanded
by further amending Section 15 and even the act of funding
- 56 -
etc. under the Act of 2008 have been made more extensive.
The act that would not have been fallen within the meaning of
terrorist act and similarly, the act of providing or collecting
funds which would not have fallen within the ambit of
Section 17, have now become punishable under Section 17
because of the expansion of the scope of Section 17 by
insertion of the provision of Sub-Section (c) thereof and so
have been done with regard to conspiracy etc. which is
punishable under Section 18.
Sub-Section (c) of Section 15 uses the expression ―any
other act‖ and ―any other persons‖ which makes it clear that
if one detains, kidnaps or abducts any person and threatens
to kill or injure such person or does any other act in order to
compel the Government of India, any State Government or
the Government of a foreign country or any other person to
do or abstain from doing any act, threatens the 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 commits a
terrorist act. Therefore, as compared to the Act of 2004, some
more activities have been added under Section 15 of the Act
of 2008 to bring those activities within the ambit of the
terrorist act.
It is evident from the amendment made in Section 15 by
virtue of Amended Act, 2013 that again the economic security
has been added under the fold of the ―terrorist act‖.
- 57 -
Therefore, starting from the Act, 2004 then in 2008 and 2013
more acts or activities have been added to be treated as
―terrorist act‖. The purpose for adding more activities to be
treated as terrorist act is to maintain the unity, integrity,
security etc. of the country. The legislature further takes care
that no one be allowed to take benefit of technicalities as even
if various organizations have not been listed in the Schedule
of U.A.(P) Act, nobody may be allowed to take advantage of
that and, therefore, the ‗terrorist gang' has been inserted. The
intent behind introducing such definition of terrorist gang is
to stop such technical pleas which may be raised.
It requires to refer herein at the risk of repetition that
the scope of U.A.(P) Act, 1967 is to provide for the more
effective prevention of certain unlawful activities of
individuals and associations and for dealing with terrorist
activities and for matters connected therewith. The scope of
the Act was widened in the year 2004 and subsequently in
the year 2013. The purpose is to protect the unity, integrity,
security, economic security, or sovereignty of India and that
is the reason the Parliament has inserted economic security
in the legislation to achieve the object and intent of the Act.
Further, even if the terrorist organization has not been
listed in the Schedule at the time of commission of offence
but subsequently the same has been listed then also the
complicity of such organization will be there for involvement
- 58 -
in the terrorist act.
This aspect of the matter has been considered by the
Hon'ble Apex Court in the case of Redaul Hussain Khan v.
National Investigation Agency [(2010) 1 SCC 521] wherein
the organization namely, DHD(J) found to be involved in
purchasing arms and ammunitions and in consequence upon
such allegation the person concerned was sent to police
custody on 31.05.2009. An issue was raised by the aggrieved
that as on 31.05.2009 the said organization was not listed
under the Schedule of U.A.(P) Act, 1967, rather the
organization was listed under the Schedule only on
09.07.2009 and, therefore, argument was advanced about
non-applicability of the provision of U.A.(P) Act, 1967.
However, the said argument was not accepted giving a finding
which is quoted as under :-
―... ... ... in view of the definition of ―terrorist act‖
in Section 15 of the 1967 Act and the provisions of
Sections 13 and 17 thereof, there was little doubt that
even on the date when the petitioner was
apprehended, DHD (J) was indulging in terrorist acts,
although it came to be declared as an ―unlawful
association‖ some time later.......‖
It is thus, evident that for branding a person as a
terrorist, his membership of a terrorist organization is not
sine qua non. It is sufficient even if it is shown that his
activities are within the scope of a terrorist act as stood
defined by Section 15 in the year 2004 or in the year 2008 or
- 59 -
in the year 2013.
In order to substantiate their argument, reliance has
been placed by the learned counsel for the appellants upon
the judgment rendered by the Hon'ble Apex Court in the case
of Tolaram Relumal and Another v. State of Bombay [AIR
1954 SC 496] in particular referring to paragraph 8 thereof
wherein it has been laid down that if two possible and
reasonable constructions can be put upon a penal provision,
the court must lean towards that construction which exempts
the subject from penalty rather than the one which imposes
penalty.
It is evident that the aforesaid judgment has been
rendered in a case pertaining to charge made against the
appellant under Section 18(1) of the Bombay Rent Restriction
Act, 1947 wherein a sum of Rs.2400 as premium or puggree
in respect of the grant of lease of Block No. 15 in a building
under construction was imposed. Finding the guilty of the
charge, the appellants were sentenced to undergo two
months' RI and a fine of Rs 1,200. The Bombay High Court
dealt with the provision of Section 18(1) which refers to the
grant, renewal or continuance of a lease but prima facie, it
was found that the executory agreement to grant a lease is
not coming under the fold of either grant, renewal or
continuance of a lease and in that view of the matter the
principle has been laid down as in paragraph 8 that if two
- 60 -
possible and reasonable constructions can be put upon a
penal provision, the court must lean towards that
construction which exempts the subject from penalty rather
than the one which imposes penalty. But so far as the fact of
the case in hand is concerned, the said stage has not yet
come since the case before us is at the stage of order taking
cognizance and unless the entire evidence would be
appreciated by going through the relevant documents as also
the oral evidence, which will come in course of trial, then only
the question of possible view would come into surface and in
that circumstances only principle can be applied as has been
laid down at paragraph 8 and therefore, at this stage the
judgment rendered in the case of Tolaram Relumal and
Another v. State of Bombay (Supra) would not be applicable
in the facts of this case.
Reliance has also been placed upon the judgment
rendered by Hon'ble Apex Court in Niranjan Singh Karam
Singh Punjabi, Advocate v. Jitendra Bhimraj Bijjaya and
Others [(1990) 4 SCC 76]. We have gone through the fact of
the aforesaid case and found therefrom that the judgment
has been rendered holding therein that the intention of the
accused persons was to be seen and it was found that the
intention of the accused persons was to eliminate the rivals
and gain supremacy in the underworld so that they may be
known as the bullies of the locality and would be dreaded as
- 61 -
such. The designated court, finding non-availability of the
incriminating material on record and the documents relied,
was of the view that prima facie no case is made out.
It further appears form the aforesaid judgment that the
Hon'ble Apex Court has taken into consideration the order
passed at the stage of charge and, therefore, it has been held
at paragraph 4 and 7 thereof that under Section 227 Cr.P.C.
a duty is cast on the judge to apply his mind to the material
on record and if on examination of the record he does not find
sufficient ground for proceeding against the accused, he must
discharge him. Therefore, admittedly in the case of Niranjan
Singh Karam Singh Punjabi, Advocate v. Jitendra
Bhimraj Bijjaya and Others (Supra) the matter has been
appreciated by the Hon'ble Apex Court on an application
dealt with by the court under Section 227 Cr.P.C. but the
case in hand is not at the stage of discharge, rather the order
taking cognizance has been challenged and therefore, the
material documents on record cannot be examined at this
stage and hence, the judgment passed in the case of
Niranjan Singh Karam Singh Punjabi, Advocate v.
Jitendra Bhimraj Bijjaya and Others (Supra) is also not
applicable in the facts of this case.
Another judgment relied by the learned counsel for the
appellant rendered by Hon'ble Apex Court in Hitendra
Vishnu Thakur and Others v. State of Maharashtra and
- 62 -
Others [(1994) 4 SCC 602] is also not applicable in the facts
of this case as in the said case the Hon'ble Apex Court has
dealt with the issue arising at the time of framing of charge.
As would be evident from paragraph 14 thereof, it has been
held therein that the Designated Court must record its
satisfaction about the existence of a prima facie case on the
basis of the material on the record before it proceeds to frame
a charge-sheet against an accused for offences covered by
TADA. It is an obligation of the Designated Court to take
extra care to examine the evidence with a view to find out
whether the provisions of the Act apply or not. The
Designated Court is, therefore, expected to carefully examine
the evidence and after analysing the same come to a firm
conclusion that the evidence led by the prosecution has
established that the case of the accused falls strictly within
the four corners of the Act before recording a conviction
against an accused under TADA.
In view of the aforesaid paragraph of the judgment,
admittedly, the matter scrutinized by the Hon'ble Apex Court
was at stage of framing of charge but that stage has not yet
come in the present case. Hence, at this stage the judgment
rendered in the case of Hitendra Vishnu Thakur and
Others v. State of Maharashtra and Others (Supra) would
also not be applicable in the facts of this case.
Another judgment relied upon by the appellant has been
- 63 -
rendered in People's Union for Civil Liberties and Another
v. Union of India [(2004) 9 SCC 580]. In the aforesaid
judgment the court upheld the legislative competence of
Parliament to enact POTA. In doing so, the court explained
that Entry 1 of the State List (public order) empowers States
to enact a legislation relating to public order or security in so
far as it affects or relates to a particular State. The court
noted that terrorism is a trans-national and not a State-
specific problem, affecting the security and sovereignty of the
nation. In view of the aforesaid aspect of the matter, at
present and at this stage no benefit can be extended in favour
of the appellants by placing reliance upon the judgment
rendered in the case of People's Union for Civil Liberties
and Another v. Union of India (Supra).
In the case of Manjit Singh alias Mange v. Central
Bureau of Investigation through its Superintendent of
Police [(2011) 11 SCC 578] at paragraph 102 to 107 it has
been held that a person can be charged only when the
prosecution establishes that the same was committed with an
intent to achieve one or the other ends mentioned in the
Section. The Hon'ble Apex Court further went on to hold that
to bring an act under the ambit of ―terrorist act‖ the
prosecution must prove that it was done with an intent to
commit a terrorist act/strike terror and if fear/terror/panic is
caused as a consequence of the criminal act whereas the
- 64 -
actual act was not committed with an intent to strike terror
then the provisions relating to terrorist act is not applicable.
We are of the view that the aforesaid judgment cannot
be made applicable at this stage as whether the conduct of
the appellants of collecting money for TPC is having any
intent or not bringing the aforesaid act under the ambit of
―terrorist act‖ can be looked into only at the stage of trial
when the documentary and oral evidence would be
considered.
In Extra-Judicial Execution Victim Families
Association and Another v. Union of India and Another
[(2016) 14 SCC 536], at paragraph 2 to 8, upon which
reliance has been placed by the learned counsel for the
appellants, the term ―terrorist‖ or ―terrorist gang‖ has been
explained which would mean an individual or combination or
body of individuals who are the perpetrator (s) of an act with
an intent to threaten or likely to threaten the unity, integrity,
security, economic security or sovereignty of India or with the
intent to strike terror or likely to strike terror in the people or
any section of the people in India by any of the acts
mentioned in Section 15 of the U.A.(P) Act.
So far as applicability of this judgment is concerned, the
same is not fit to be appreciated at this stage since the order
taking cognizance is under challenge herein and as such, the
same is to be tested only on the basis of the appreciation of
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evidence led against the appellants.
Further, after going through the material surfaced
against the appellants in course of investigation, as under
paragraphs 17.12, 17.13 and 17.10 respectively of the second
supplementary charge-sheet, this Court is of the view that
prima facie materials have come showing the complicity of the
appellants. The direct complicity of the appellants in
collecting fund to aid TPC, a ―terrorist gang‖ for the purpose
of running of the business smoothly is indicated. Therefore,
we are of the view that the judgment rendered in the case of
Extra-Judicial Execution Victim Families Association
and Another v. Union of India and Another (Supra) is not
fit to be considered at this stage, rather the same depends
upon the scrutiny of the materials available which is to be
looked into either at the time of framing of charge or at the
stage of trial.
In view of the discussion made hereinabove, we are of
the considered view that since the investigation has been
conducted treating the TPC as a ―terrorist gang‖ and not
treating it as ―terrorist organization‖, hence the investigation
initiated against the TPC and its associates or institution of
criminal proceeding will not be vitiated.
As such, the question is accordingly answered.
16. Whether on the face of the chargesheet and order
taking cognizance, no case is made out?
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It has been argued by the learned counsel for the
appellants that even if the entire charge-sheet or the order
taking cognizance is taken to be true on the face of it in
entirety, no case is made out and hence the complicity of the
appellants in the instant case is fit to be quashed.
It requires to refer herein the position of law for making
interference by the court of law either in the F.I.R. or in the
order taking cognizance. The Hon'ble Apex Court in State of
Haryana and Others v. Bhajan Lal and Others [1992
Supp (1) 335] has laid down the guideline under paragraph
102 and 103. The relevant passages are extracted and quoted
as under:-
―102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this
Court in a series of decisions relating to the exercise of
the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we give the
following categories of cases by way of illustration
wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise
to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or
rigid formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
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the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute
a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis
of which no prudent person can ever reach a just
conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.
103. We also give a note of caution to the effect that
the power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and
that too in the rarest of rare cases; that the court will
not be justified in embarking upon an enquiry as to
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the reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint and that
the extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to
its whim or caprice.‖
The ratio laid down by the Hon'ble Apex Court in State
of Haryana and Others v. Bhajan Lal and Others (Supra),
has again been reiterated in Fakhruddin Ahmad v. State of
Uttaranchal and Another [(2008) 17 SCC 157] at
paragraph 20 which reads as under :-
―20. So far as the scope and ambit of the powers of the
High Court under Section 482 of the Code is
concerned, the same has been enunciated and
reiterated by this Court in a catena of decisions and
illustrative circumstances under which the High Court
can exercise jurisdiction in quashing the proceedings
have been enumerated. However, for the sake of
brevity, we do not propose to make reference to the
decisions on the point. It would suffice to state that
though the powers possessed by the High Court under
the said provision are very wide but these should be
exercised in appropriate cases, ex debito justitiae to do
real and substantial justice for the administration of
which alone the courts exist. The inherent powers
possessed by the High Court are to be exercised very
carefully and with great caution so that a legitimate
prosecution is not stifled. Nevertheless, where the High
Court is convinced that the allegations made in the
first information report or the complaint, even if they
are taken at their face value and accepted in their
entirety, do not prima facie constitute any offence or
make out a case against the accused or where the
allegations made in the FIR or the complaint are so
absurd and inherently improbable on the basis of
which no prudent person can ever reach a just
- 69 -
conclusion that there is sufficient ground for
proceeding against the accused, the powers of the High
Court under the said provision should be exercised.‖
Again in the case of Parbatbhai Aahir alias
Parbatbhai Bhimsinbhai Karmur and Others v. State of
Gujarat and Another [(2017) 9 SCC 641] the scope of
interfering with the order taking cognizance or the F.I.R. at
the threshold has been dealt with at paragraph 16 which is
quoted as under:-
―16. The broad principles which emerge from the
precedents on the subject, may be summarised in the
following propositions:
16.1. Section 482 preserves the inherent powers of the
High Court to prevent an abuse of the process of any
court or to secure the ends of justice. The provision
does not confer new powers. It only recognises and
preserves powers which inhere in the High Court.
16.2. The invocation of the jurisdiction of the High
Court to quash a first information report or a criminal
proceeding on the ground that a settlement has been
arrived at between the offender and the victim is not
the same as the invocation of jurisdiction for the
purpose of compounding an offence. While
compounding an offence, the power of the court is
governed by the provisions of Section 320 of the Code
of Criminal Procedure, 1973. The power to quash
under Section 482 is attracted even if the offence is
non-compoundable.
16.3. In forming an opinion whether a criminal
proceeding or complaint should be quashed in exercise
of its jurisdiction under Section 482, the High Court
must evaluate whether the ends of justice would justify
the exercise of the inherent power.
16.4. While the inherent power of the High Court has a
- 70 -
wide ambit and plenitude it has to be exercised (i) to
secure the ends of justice, or (ii) to prevent an abuse of
the process of any court.
16.5. The decision as to whether a complaint or first
information report should be quashed on the ground
that the offender and victim have settled the dispute,
revolves ultimately on the facts and circumstances of
each case and no exhaustive elaboration of principles
can be formulated.
16.6. In the exercise of the power under Section 482
and while dealing with a plea that the dispute has
been settled, the High Court must have due regard to
the nature and gravity of the offence. Heinous and
serious offences involving mental depravity or offences
such as murder, rape and dacoity cannot appropriately
be quashed though the victim or the family of the
victim have settled the dispute. Such offences are,
truly speaking, not private in nature but have a
serious impact upon society. The decision to continue
with the trial in such cases is founded on the
overriding element of public interest in punishing
persons for serious offences.
16.7. As distinguished from serious offences, there
may be criminal cases which have an overwhelming or
predominant element of a civil dispute. They stand on
a distinct footing insofar as the exercise of the inherent
power to quash is concerned.
16.8. Criminal cases involving offences which arise
from commercial, financial, mercantile, partnership or
similar transactions with an essentially civil flavour
may in appropriate situations fall for quashing where
parties have settled the dispute.
16.9. In such a case, the High Court may quash the
criminal proceeding if in view of the compromise
between the disputants, the possibility of a conviction
is remote and the continuation of a criminal
proceeding would cause oppression and prejudice; and
16.10. There is yet an exception to the principle set
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out in propositions 16.8. and 16.9. above. Economic
offences involving the financial and economic well-
being of the State have implications which lie beyond
the domain of a mere dispute between private
disputants. The High Court would be justified in
declining to quash where the offender is involved in an
activity akin to a financial or economic fraud or
misdemeanour. The consequences of the act
complained of upon the financial or economic system
will weigh in the balance.‖
17. We have been persuaded by the learned counsel for the
parties to examine the complicity of the appellants as has
surfaced in course of investigation on the basis of which the
charge-sheet has been submitted and cognizance has been
taken in order to reach to the conclusion as to whether prima
facie case is made out against the appellants even if the
entire allegation as found in the charge-sheet is taken to be
true on the face of it.
Admittedly, the name of the appellant-Vinit Agarwal (A-
20) does not transpire in the first supplementary charge-
sheet but in the second supplementary charge the material
has come against his as would appear from paragraph 17.12
of the second supplementary charge-sheet so far as it relates
to Vinit Agarwal (A-20), appellant of Criminal Appeal (DB) No.
71 of 2020, which is being referred hereunder :-
―17.12 Role and activities of / offences established
against Vinit Agarwal (A-20) : Vinit Agarwal (A-20) is
the Vice President of M/s B K B Transport and he paid
levy to the tune of rupees 30 lakhs to members of
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terrorist gang TPC including Akraman (A-14). Oral
evidence establishes that A-20, colluded with members
of terrorist gang, TPC and others and
abetted/promoted thereby strengthened TPC in
criminal conspiracy with members of the terrorist gang
with an intent to raise funds for the above said
terrorist gang through co-accused Premvikas @ Mantu
Singh (A-11) and Akraman (A-14) for smooth
functioning of his business. Thereby, it is established
that A-20 criminally conspired with A-11 and A-14 and
committed offence under sections 120B of the IPC r/w
section 17 of the UA(P) Act 1967 and substantive
offences under Sections 17 and 18 of the UA(P) Act
1967, section 17 of the CLA Act and Section 201 of
IPC.‖
It is evident from the fact came in course of investigation
against the appellant (A-20) that he being the Vice President
of M/s. B K B Transport, paid levy to the tune of rupees 30
lakhs to members of terrorist gang TPC including Akraman
(A-14). He colluded with members of terrorist gang, TPC and
others and abetted/promoted thereby strengthened TPC in
criminal conspiracy with members of the terrorist gang with
an intent to raise funds for the above said terrorist gang
through co-accused Premvikas @ Mantu Singh (A-11) and
Akraman (A-14) for smooth functioning of his business.
Further, it has also come in the chargesheet that one
independent witness in his statement recorded under Section
164 Cr.P.C. has stated that Vinit Agarwal (A-20) used to take
care of finances and operation of the company. He gave the
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witness Rs. 30 lakhs (Rs. 10 lakhs each three times) to be
further handed over the Akraman Ji (A-14).
On the basis of such allegations, prima facie it appears
that the appellant colluded with members of terrorist gang
(TPC) and abetted/promoted/thereby strengthened TPC in
criminal conspiracy with members of the terrorist gang with
an intent to raise funds for the above said terrorist gang
through co-accused Premvikas @ Mantu Singh (A-11) and
Akraman (A-14) for smooth functioning of his business.
Therefore, it is difficult to hold that it does not prima facie
appear that A-20 criminally conspired with co-accused and
committed offence under Section 120-B of the Indian Penal
Code read with Section 17 of the U.A.(P) Act and substantive
offences under Sections 17 and 18 of the U.A.(P) Act, Section
17 of the C.L.A. Act, 1908 and Section 201 of the Indian
Penal Code.
So far as material against Amit Agarwal @ Sonu
Agarwal (A-21), appellant of Criminal Appeal (DB) No. 117 of
2020 is concerned, as would appear from paragraph 17.13 of
the second supplementary charge-sheet, which is being
referred hereunder :-
―17.13 Role and activities of / offences established
against Sonu Agarwal (A-21) : Sonu Agarwal (A-21 is
the proprietor of M/s. Shree Balaji Transport Pvt. Ltd.
The said M/s. Balaji Transport Pvt. Ltd. transports
coal for Hindalco Co. He used to arrange cash from
local traders and other businessmen for making
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payments of levy to Village committee members and
TPC for smooth functioning of his business. It is
established that he criminally conspired with co-
accused Sudhanshu Ranjan @ Chhotu Singh (A-8) for
raising funds for terrorist gang TPC on being
demanded by Akraman (A-14). The accused (A-21)
used to collect funds in cash from different traders by
showing a Rs.10 note to traders and the amount to be
collected was decided by A-21. Further from the
residential premise of A-21, cash amounting to
Rs.7,91,000/- and Singapore Dollar 10,000/- were
seized and from office premise of A-21, cash
amounting to Rs.3,72,750/- and Hongkong Dollar
8760/- were seized and the above said cash was
confirmed as Proceeds of Terrorism by Designated
Authority vide okrder No. 11011/08/2018/NIA, Govt.
of India dated 07 Dec 2018. Therefore, it is established
that Sonu Agarwal @ Amit Agarwal (A-21), colluded
with members of terrorist gang, TPC and abetted /
promoted / thereby strengthened TPC in criminal
conspiracy with member of the terrorist gang with an
intent to raise funds for the above said terrorist gang
through co-accused A-4, A-5, A-7, A-8, A-10 and A-14
for smooth running of his business. Thereby, it is
established that A-21 criminally conspired with co-
accused and committed offences under sections 120B
of IPC r/w sections 17 of the UA(P) Act and substantive
offences under Sections 17, 18 and 21 of the UA(P) Act
& Section 17 of the CLA Act, 1908.‖
It is evident from the materials collected during the
course of investigation that he (A-21), being the proprietor of
M/s. Shree Balaji Transport Pvt. Ltd. used to transport coal
for Hindalco Co. He used to arrange cash from local traders
and other businessmen for making payments of levy to
Village committee members and TPC for smooth functioning
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of his business. Prima facie it appears that he criminally
conspired with co-accused Sudhanshu Ranjan @ Chhotu
Singh (A-8) for raising funds for terrorist gang TPC on being
demanded by Akraman (A-14). The accused (A-21) used to
collect funds in cash from different traders by showing a
Rs.10 note to traders and the amount to be collected was
decided by A-21. Further from the residential premise of A-
21, cash amounting to Rs.7,91,000/- and Singapore Dollar
10,000/- were seized and from office premise of A-21, cash
amounting to Rs.3,72,750/- and Hongkong Dollar 8760/-
were seized and the above said cash was confirmed as
Proceeds of Terrorism by Designated Authority vide order No.
11011/08/2018/NIA, Govt. of India dated 07 Dec 2018.
On the basis of such allegations, prima facie it appears
that the appellant colluded with members of terrorist gang
(TPC) and abetted/promoted/thereby strengthened TPC in
criminal conspiracy with members of the terrorist gang with
an intent to raise funds for the above said terrorist gang
through co-accused A-4, A-5, A-7, A-8, A-10 and A-14 for
smooth running of his business. Therefore, it would be
difficult to hold that it does not prima facie appear that A-21
criminally conspired with co-accused and committed offence
under Section 120-B of the Indian Penal Code read with
Section 17 of the U.A.(P) Act and substantive offences under
Sections 17, 18 and 21 of the U.A.(P) Act and Section 17 of
- 76 -
the C.L.A. Act, 1908.
So far as material against Mahesh Agarwal (A-18)
appellant of Criminal Appeal (DB) No. 119 of 2020 is
concerned, relevant paragraph would be 17.10 of the second
supplementary charge-sheet, which is being extracted and
quoted hereunder :-
―17.10 Role and activities of / offences established
against Mahesh Agarwal (A-18) : Mahesh Agarwal (A-
18 is the Managing Director of M/s Adhunik Power
and Natural Resources, Jharkhand. Evidence establish
that on his direction, payment was made through
RTGS mode to coal transporters against work orders.
Amount @ Rs.200/- per MT was given to transporters
for the purpose of paying to TPC operatives and village
committee for smooth functioning of the business
concerns. For promoting his coal trade business, he
connived with the co-accused persons namely Ajay
Singh, Akraman and Bindeswar Ganjhu and thereby
abetted in raising of funds for the terrorist gang. The
documentary and oral evidences establish that the
said accused was paying levy to members of various
groups like Village committee members, CCL, weigh
bridge operators, TPC members such as Akraman (A-
14), Bindu Ganjhu (A-5) and Premvikas @ Mantu
Singh (A-11) and was involved with co-accused
persons namely Sanjay Jain (A-9) and Ajay Kumar @
Ajay Singh in the commission of instant crime and
conspiracy. The E-mail dated 03 April, 2017 and 30th
April, 2017 recovered at the instance of co-accused
Sanjay Jain (A-9) and the documents produced by
witness Rakesh Jain revealed that Mahesh Agrawal (A-
18) was in the knowledge of levy being paid to CCL and
village committee. The four e-mails dated 01/05/2017,
02/05/2017, 16/05/2017 and 21/05/2017 which
were produced by witness Rakesh Jain, which were
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sent by employees of Adhunik Power & Natural
Resources Ltd. to Raja Patni, M/s. National
Parivahana transporter for Adhunik Power, stating
that there is pending payments which was supposed to
be paid to the Committee, regular phone calls being
made by Akraman @ Netaji, (Regional Commander,
TPC)(A-14) to Ajay Kumar (Branch Office, Ranchi) to
pay pending freight charges to transporters,
threatening calls by Akraman @ Netaji to stop lifting of
coal, plans of Ajay Kumar (Branch Office, Ranchi) to
meet Akraman @ Neta Ji, demand draft of Rs. 40 lakh
raised in favour of Amrapali loading account
committee, intimating that Sanjay Jain is meeting
Akraman Ji @ Neta Ji (A-14). Therefore, Mahesh
Agarwal was in the knowledge that levy is being paid
by their company to TPC leaders and operatives, thus
colluded in terror financing of TPC. Further, Mahesh
Agarwal deliberately deleted the emails marked as CC
to him. It is established that Mahesh Agarwal (A-18)
colluded with members of terrorist gang TPC, and
others and abetted / promoted/thereby strengthened
TPC by engaging in criminal conspiracy with members
of the terrorist gang with an intent to raise funds for
the above said terrorist gang through co-accused
Akraman (A-14), Sanjay Jain (A-9) and Ajay Kumar @
Ajay Singh (A-22) for smooth running of his business.
Thereby, accused Mahesh Agarwal (A-18) committed
offence under Section 120-B of IPC r/w Section 17 of
the UA(P) Act 1967 and substantive offences u/s
Sections 17 and 18 of the UA(P) Act 1967, Section 17
of the CLA. Act, 1908 and section 201 of IPC.‖
It is evident from the perusal of the aforesaid paragraph
that the appellant being the Managing Director of M/s
Adhunik Power and Natural Resources, Jharkhand, used to
make payments of levy to Village committee members and
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TPC for smooth functioning of his business. It appears that
he conspired with co-accused Akraman (A-14), Sanjay Jain
(A-9) and Ajay Kumar @ Ajay Singh (A-22) for raising funds
for terrorist gang TPC on being demanded by Akraman (A-14).
It has also come that on the instruction of the appellant
payment was made through RTGS mode to coal transporters
against work orders @ Rs.200/- per MT to transporters for
the purpose of paying to TPC operatives and village
committee for smooth functioning of the business concerns.
It has also come that for promoting his coal trade business,
he connived with the co-accused persons namely Ajay Singh,
Akraman and Bindeswar Ganjhu and thereby abetted in
raising of funds for the terrorist gang.
Therefore, prima facie it appears that the appellant was
in the knowledge that levy is being paid by their company to
TPC. Further, it has come that the appellant deliberately
deleted the emails marked as CC to him. Prima facie it
appears that the appellant colluded with members of terrorist
gang TPC, and others and abetted / promoted/thereby
strengthened TPC by engaging in criminal conspiracy with
members of the terrorist gang with an intent to raise funds
for the above said terrorist gang through co-accused
Akraman (A-14), Sanjay Jain (A-9) and Ajay Kumar @ Ajay
Singh (A-22) for smooth running of his business. Therefore, it
would be difficult to hold that it does not prima facie appear
- 79 -
that A-18 criminally conspired with co-accused and
committed offence under Section 120-B of the Indian Penal
Code read with Section 17 of the U.A.(P) Act and substantive
offences under Sections 17 and 18 of the U.A.(P) Act, Section
17 of the C.L.A. Act, 1908 and section 201 of the Indian Penal
Code.
18. Whether on the basis of the aforesaid activities having
been surfaced against the appellants, will it come under the
fold of the ―terrorist act‖ as under Section 14 making the
appellants liable for punishment as under Section 17 of the
U.A.(P) Act or not, for which definition of ―terrorist act‖ vis-à-
vis the provision of Section 15 and 17 is to be read out
simultaneously. The ―terrorist act‖ has been defined under
Section 2(k) which has the meaning assigned to Section 15
and the expression ―terrorism‖ and ―terrorist‖ shall be
construed accordingly. Section 15 and 17 of the Act, 1967
and the aforesaid issue has already been dealt with in detail
in the preceding paragraphs.
19. We have gone through the allegation as has been found
against the appellants and find that prima facie sufficient
material is there of raising funds for the TPC, a terrorist gang.
It has also come in the charge-sheet that for smooth running
of the business the money has been paid by the appellants to
the TPC on the threat of disruption of any supply or services
essential to the life of the community. One of the terrorist act
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also includes disruption of any supplies or services essential
to the life which has been alleged to be disrupted by the TPC,
a terrorist gang to which the appellants have added by
funding.
Further, the action of the appellants prima facie will also
come under the fold of Section 17 since Section17 of the Act,
1967 provides that whoever, directly or indirectly provides
funds to commit a terrorist act notwithstanding whether such
funds were actually used or not, will also be punishable for
commission of terrorist act.
In this regard, reliance has been placed to the case of
State of Kerala v. Raneef [(2011) 1 SCC 784].
After going through the aforesaid judgment, we have
found that the same pertains to denial of bail. The Hon'ble
Apex Court found from the fact involved therein that there
was no prima facie proof that the respondent was involved in
the crime, rather prima facie only offence that can be leveled
against the respondent is that under Section 202 IPC, that is,
of omitting to give information of the crime to the police, and
this offence has also to be proved beyond reasonable doubt.
Section 202 being a bailable offence and further no evidence
as yet to prove that PFI is a terrorist organisation, and hence
the respondent cannot be penalised merely for belonging to
PFI.
But the factual aspect involved in that case is quite
- 81 -
different to present one since TPC has been notified to be a
terrorist association by virtue of gazette notification issued by
the Department of Home, Government of Jharkhand dated
14.07.2006.
So far as the prima facie allegation against the
appellants in the present case is concerned, we have already
dealt with hereinabove by dealing with the allegations as
contained under Clause 17.12, 17.13 and 17.10 respectively
of the second supplementary charge-sheet. The materials
have surfaced about raising of fund for the terrorist gang
namely, TPC, and as such, it cannot be said at this stage that
no prima facie material is available against the appellants
and, therefore, the judgment rendered in the case of State of
Kerala v. Raneef (Supra), in view of this Court, would not be
applicable in the facts of this case.
In the case of Arup Bhuyan v. State of Assam [(2011)
3 SCC 377] it has been held that mere membership of a
banned organization will not incriminate a person and so it is
necessary to prove that he has indulged in some acts of
violence.
In the said case the appellant before the Hon'ble
Supreme Court was found to be a member of banned
organization ULFA and it cannot be disputed that merely
membership of a banned organization does not incriminate a
person but here, in course of further investigation i.e. at
- 82 -
paragraph 17.12, 17.13 and 17.10 respectively of the second
supplementary charge-sheet, material has been surfaced
against the appellants to the effect that they have been found
to be involved in raising funds for the terrorist gang TPC,
and, therefore, it cannot be said that there is no prima facie
case is available against the appellants.
Further, whether there is any intent or passive support
to the terrorist gang or not that cannot be appreciated at this
stage, rather the same is to be looked into at the time of trial
or at least at the time of framing of charge.
In that view of the matter, we are of the view that it is
not a case where the guideline laid down by Hon'ble Apex
Court in the case of State of Haryana and Others v.
Bhajan Lal and Others (Supra), Fakhruddin Ahmad v.
State of Uttaranchal and Another (Supra) and
Parbatbhai Aahir alias Parbatbhai Bhimsinbhai Karmur
and Others v. State of Gujarat and Another (Supra) would
be applicable as on the basis of the second supplementary
charge-sheet, materials have come showing the prima facie
complicity of the appellants. Hence, the argument advanced
on behalf of the appellants on this issue is having no
substance. Accordingly the issue has been answered.
20. Whether the issue of mens rea, vicarious liability or
victim of extortion can be looked into at the stage of
cognizance for quashing the order taking cognizance?
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The mens rea is a state of mind. Under criminal law,
mens rea is considered as the guilty intention and unless it is
found that the accused had the guilty intention to commit the
crime, he cannot be held guilty for committing the crime.
The argument has been advanced on behalf of the
appellants that there was no mens rea and even if the money
was financed to the TPC, if the intention of the appellants
would be proved to be guilty, then only a criminal case can be
instituted but according to the learned counsel, the question
of mens rea has not been taken into consideration by the
investigating agency as also by the court which has taken
cognizance, based upon the said charge-sheet.
Learned counsel appearing for the NIA has submitted
that guilty intention cannot be appreciated at this stage by
the court i.e., at the stage of order taking cognizance, since
the intention whether it was guilty or not is the subject
matter of trial and to reach to a conclusion, the evidence has
to be laid.
21. We have appreciated the argument advanced by the
learned counsel for the parties in this regard and we find
substance in the argument advanced on behalf of the learned
counsel for the NIA as the intention whether it was guilty or
not depends upon the appreciation of the factual aspect
which will only come either at the stage of framing of charge
by appreciating the documents or at the time of trial by
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leading evidence in that regard.
So far as the vicarious liability is concerned, it is the
case of the appellant Vinit Agarwal (A-20) that he has been
implicated as an accused in the capacity of the Vice President
of M/s. B K B Transport, appellant Amit Agarwal (A-21) has
been implicated in the capacity of Proprietor of Shree Balaji
Transport Limited whereas appellant Mahesh Agarwal (A-18)
has been implicated in the capacity of Managing Director of
M/s Adhunik Power and Natural Resources, Jharkhand but
the companies having not been implicated, no criminal
proceeding can be allowed to be continued.
So far as the argument of the appellants that the
companies have not been implicated in the case so the entire
criminal proceeding will vitiate, learned senior counsel for the
NIA has submitted that the issue of vicarious liability can
also not be looked into at the stage of cognizance since the
same depends upon the factual aspect and the said aspect of
the matter can only be appreciated either at the time of
framing of charge or in course of trial.
22. This Court has appreciated the aforesaid argument and
found substance in the argument advanced on behalf of the
NIA because the vicarious liability is a form of a strict,
secondary liability that arises under the common law doctrine
of agency and further as would appear from the allegation
leveled against the appellants the same is not upon the
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companies, rather, it is the personal allegation upon the
appellants and reference has been made about the Vice
President of M/s. B K B Transport, Proprietor of Shree Balaji
Transport Limited and Managing Director of M/s Adhunik
Power and Natural Resources, Jharkhand.
Further, in the charge-sheet, the material has come
against the appellants that they, in the individual capacity,
paid or were instrumental in paying levy to the members of
terrorist gang TPC including Akraman (A-14) which suggests
that specific allegations have been leveled against the
appellants and even if the issue of vicarious liability is being
raised, the same will not be proper to be considered at this
stage since the same depends upon the appreciation of
factual aspect which cannot be done at the stage of
cognizance.
The issue of extortion has also been raised by the
appellants by raising the point that they were the victims of
extortion and as such, they cannot be held criminally liable
even if any money has been paid. According to the appellants,
the funding has been done to the TPC in order to run the
business smoothly.
On the other hand, learned senior counsel appearing for
the NIA has submitted that even the issue of extortion cannot
be adjudged at this stage as the same depends upon the
factual aspect and can be decided upon appreciation of the
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evidence led by the parties.
This Court has found substance in the argument
advanced on behalf of the NIA as the issue of extortion or
mens rea or vicarious liability are the factual aspects and the
same can only be assessed by appreciating the evidence
either documentary or oral and therefore, we are of the view
that at this stage the issue of mens rea, vicarious liability or
victim of extortion will not be proper to be looked into in
absence of relevant documents.
At this juncture, learned senior counsel for the
appellants, Mr. Cheema, referring to Section 21 of the
National Investigation Agency Act, 2008, has submitted that
the appellate court has the power to deal with the issue both
on law and facts and according to him, the fact denotes the
appreciation of fact for consideration of issue of mens rea,
vicarious liability or issue of extortion. However, we are not
impressed by such submission because appreciation of fact
at this stage will not be proper to be considered and cannot
be considered save and except which is available on record
i.e., either in the charge-sheet or in the order taking
cognizance and we, on the basis of the fact as has been
brought on record by way of second supplementary charge-
sheet, are of the view that the investigating agency has found
prima facie allegation against the appellants treating it to be
sufficient for framing of charges.
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In this context the judgment rendered by the Hon'ble
Apex Court in the case of Central Bureau of Investigation,
Hyderabad v. K. Narayana Rao [(20121) 9 SCC 512] has
been relied upon, more particularly, paragraph 24 thereof.
We have gone through paragraph 24 of the said
judgment and found therefrom that the essence of criminal
conspiracy is an agreement to do an illegal act and such an
agreement can be proved either by direct evidence or by
circumstantial evidence or by both. In a matter of common
experience direct evidence to prove conspiracy is rarely
available.
In view thereof, the circumstances before and after the
occurrence have to be considered to decide about the
complicity of the accused. The factual aspect involved in the
aforesaid case is regarding the duties of an Advocate
rendering legal opinion and on that ground whether the Panel
Advocate or bank can be implicated in the conspiracy on the
basis of legal service given by him. But the factual aspect
involved in this case is totally different as there is no fact
about entering into an agreement, hence, the aforesaid
judgment is not applicable.
Reliance has also been placed upon the judgment of the
Hon'ble Apex Court in the case of Aneeta Hada v.
Godfather Travels and Tours Private Limited [(2012) 5
SCC 661].
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The said judgment was delivered on the facts pertaining
to Negotiable Instrument Act holding about the criminal
liability for dishonor of the cheque drawn by a company and
whether the officers of the company may be implicated. In
that circumstances, it has been laid down that it is
mandatory requirement of impleading company as one of the
accused.
It cannot be disputed that the issue pertaining to
Negotiable Instrument Act is far far different to that of the Act
pertaining to terrorist. The appellants by referring to the case
of Aneeta Hada v. Godfather Travels and Tours Private
Limited (Supra) is placing reliance upon the principle of
vicarious liability but as would appear from the allegation
surfaced against the appellants as under paragraph 17.12,
17.13 and 17.10 respectively of the second supplementary
charge-sheet, the prima facie material is available against the
appellants, however, the appellants have been shown to be
the President, Proprietor and Managing Director of company
and as such, whether the principle of vicarious liability will
be applicable or not that is subject matter of trial.
In the case of Aneeta Hada v. Godfather Travels and
Tours Private Limited (Supra) the cheques since were
drawn by the company, in that circumstances it has been
held making it mandatory to implead the company as an
accused.
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This issue is accordingly answered.
23. Whether order taking cognizance requires detailed
reason and the order of cognizance impugned can be said
to be without application of mind?
Argument has been advanced on behalf of the
appellants that the order taking cognizance is without any
application of mind since there is no reason expressed by the
learned court below in taking cognizance against the
appellants. It has been submitted that in absence of reason,
the order taking cognizance will be considered to be bad in
law.
In support of his argument, reliance has been placed
upon the judgment rendered by Hon'ble Apex Court in Sunil
Bharti Mittal v. Central Bureau of Investigation [(2015) 4
SCC 609].
Mr. Banerjee, learned ASG appearing for the NIA has
submitted that order taking cognizance is well reasoned and
after due application of mind. According to him, learned court
below has appreciated the content of the second
supplementary charge-sheet and on its perusal and as also
on perusal of the case diary took cognizance, therefore, it
cannot be said that the order taking cognizance is bad in the
eye of law due to non-application of mind.
We have heard learned counsel for the parties on this
issue. In order to answer the issue, it would be relevant to
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discuss about the expression ―cognizance‖. The expression
―cognizance‖ as has been provided in Sections 190 and 204 of
the Code of Criminal Procedure is entirely a different thing
from initiation of proceedings. It is the condition precedent to
the initiation of proceedings by the Magistrate or the
Judge. Cognizance is taken of cases and not of persons.
Under Section 190 of the Code of Criminal Procedure, it is the
application of judicial mind to the averments in the complaint
that constitute cognizance. At this stage, the Magistrate has
to be satisfied whether there is sufficient ground for
proceeding or not; whether there is sufficient ground for
conviction; whether the evidence is adequate for supporting
the conviction can be determined only at the stage of trial. If
there is sufficient ground for proceeding then the Magistrate
is empowered for issuance of process under Section 204 of
the Code of Criminal Procedure.
The Hon'ble Apex Court in Bhushan Kumar and
Another v. State (NCT of Delhi) and Another [(2012) 5 SCC
424], relying upon the judgment rendered in Smt Nagawwa
v. Veeranna Shivalingappa Konjalgi and Others [(1976) 3
SCC 736] has been pleased to hold that it is not the province
of the Magistrate to enter into a detailed discussion of the
merits or demerits of the case. It was further held that the
Magistrate can take into consideration inherent
improbabilities appearing on the face of the complaint or in
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the evidence led by the complainant in support of the
allegations. The Magistrate has been given an undoubted
discretion in the matter and the discretion has to be judicially
exercised by him.
In the case of State of Gujarat v. Afroz Mohammed
Hasanfatta [2019 SCC OnLine SC 132], the Hon'ble Apex
Court on the issue of assigning the detailed reason has been
pleased to observe at paragraphs 15 and 25 which read
hereunder as :-
―15. It is well-settled that at the stage of issuing
process, the Magistrate is mainly concerned with the
allegations made in the complaint or the evidence led
in support of the same and the Magistrate is only to be
satisfied that there are sufficient grounds for
proceeding against the accused. It is fairly well-settled
that when issuing summons, the Magistrate need not
explicitly state the reasons for his satisfaction that
there are sufficient grounds for proceeding against the
accused. Reliance was placed upon Bhushan
Kumar v. State (NCT of Delhi), (2012) 5 SCC
424 wherein it was held as under:--
―11. In Chief Enforcement Officer v. Videocon
International Ltd., (2008) 2 SCC 492 (SCC p.
499, para 19) the expression ―cognizance‖ was
explained by this Court as ―it merely means
‗become aware of' and when used with reference
to a court or a Judge, it connotes ‗to take notice
of judicially'. It indicates the point when a court
or a Magistrate takes judicial notice of an offence
with a view to initiating proceedings in respect of
such offence said to have been committed by
someone.‖ It is entirely a different thing from
initiation of proceedings; rather it is the
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condition precedent to the initiation of
proceedings by the Magistrate or the Judge.
Cognizance is taken of cases and not of persons.
Under Section 190 of the Code, it is the
application of judicial mind to the averments in
the complaint that constitutes cognizance. At
this stage, the Magistrate has to be satisfied
whether there is sufficient ground for proceeding
and not whether there is sufficient ground for
conviction. Whether the evidence is adequate for
supporting the conviction can be determined
only at the trial and not at the stage of enquiry.
If there is sufficient ground for proceeding then
the Magistrate is empowered for issuance of
process under Section 204 of the Code.
12. A ―summons‖ is a process issued by a court
calling upon a person to appear before a
Magistrate. It is used for the purpose of notifying
an individual of his legal obligation to appear
before the Magistrate as a response to violation
of law. In other words, the summons will
announce to the person to whom it is directed
that a legal proceeding has been started against
that person and the date and time on which the
person must appear in court. A person who is
summoned is legally bound to appear before the
court on the given date and time. Wilful
disobedience is liable to be punished under
Section 174 IPC. It is a ground for contempt of
court.
13. Section 204 of the Code does not mandate
the Magistrate to explicitly state the reasons for
issuance of summons. It clearly states that if in
the opinion of a Magistrate taking cognizance of
an offence, there is sufficient ground for
proceeding, then the summons may be issued.
This section mandates the Magistrate to form an
opinion as to whether there exists a sufficient
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ground for summons to be issued but it is
nowhere mentioned in the section that the
explicit narration of the same is mandatory,
meaning thereby that it is not a prerequisite for
deciding the validity of the summons issued.‖
25. In so far as taking cognizance based on the police
report, the Magistrate has the advantage of the charge
sheet, statement of witnesses and other evidence
collected by the police during the investigation.
Investigating Officer/SHO collects the necessary
evidence during the investigation conducted in
compliance with the provisions of the Criminal
Procedure Code and in accordance with the rules of
investigation. Evidence and materials so collected are
sifted at the level of the Investigating Officer and
thereafter, charge sheet was filed. In appropriate cases,
opinion of the Public Prosecutor is also obtained before
filing the charge sheet. The court thus has the
advantage of the police report along with the materials
placed before it by the police. Under Section 190(1)(b)
Cr.P.C., where the Magistrate has taken cognizance of
an offence upon a police report and the Magistrate is
satisfied that there is sufficient ground for proceeding,
the Magistrate directs issuance of process. In case of
taking cognizance of an offence based upon the police
report, the Magistrate is not required to record reasons
for issuing the process. In cases instituted on a police
report, the Magistrate is only required to pass an order
issuing summons to the accused. Such an order of
issuing summons to the accused is based upon
subject to satisfaction of the Magistrate considering
the police report and other documents and satisfying
himself that there is sufficient ground for proceeding
against the accused. In a case based upon the police
report, at the stage of issuing the summons to the
accused, the Magistrate is not required to record any
reason. In case, if the charge sheet is barred by law or
where there is lack of jurisdiction or when the charge
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sheet is rejected or not taken on file, then the
Magistrate is required to record his reasons for
rejection of the charge sheet and for not taking on file.
In the present case, cognizance of the offence has been
taken by taking into consideration the charge sheet
filed by the police for the offence under Sections 420,
465, 467, 468, 471, 477A and 120B IPC, the order for
issuance of process without explicitly recording
reasons for its satisfaction for issue of process does not
suffer from any illegality.‖
Much emphasis has been given by learned senior
counsel appearing for the appellants to the case of Sunil
Bharti Mittal v. Central Bureau of Investigation (Supra)
that before taking cognizance the application of mind is
necessary and the application of mind would only come if the
reason would be assigned in the impugned order.
We have gone across the impugned order dated
13.01.2020, the order taking cognizance, and thought it
proper to reflect herein for ready reference :-
―13.01.20 Accused persons Ajit Kumar Thakur, Prem Vikas @
Mantu Singh, Sudesh Kedia and Ajay Kumar @ Ajay Singh
have been produced from jail custody through video
conferencing in e-courts from Jail.
Learned Spl. P.P. is present.
2nd Supplementary Cahrge sheet no. 32-A/2018
dated 10.01.20 submitted on behalf of C.I.O.-cum-DY. SP,
NIA, Camp office, Ranchi against accused persons namely
1) Mahesh Agarwal (A-18) for U/s 120B of I.P.C. r/w
section 17 of the UA(P) Act, 1967, substantive offences
under sections 17 and 18 of the UA(P) Act, 1967, section 17
of the CLA Act, 1908 and section 201 of I.P.C. 2) Sudesh
Kedia (A-19) for U/s 120B of IPC r/w section 17 of the
UA(P) Act, 1967, substantive offences under sections 17, 18
and 21 of the UA(P) Act, 1967, and section 17 of the CLA
Act, 1908. 3) Vinit Agarwal (A-20) for U/s 120B of I.P.C.
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r/w section 17 of the UA(P) Act, 1967, substantive offences
under sections 17 and 18 of the UA(P) Act, 1967, section 17
of the CLA Act, 1908 and section 201 of I.P.C. 4) Sonu
Agarwal (A-21) for U/s 120B of IPC r/w section 17 of the
UA(P) Act, 1967, substantive offences under sections 17, 18
and 21 of the UA(P) Act, 1967, and section 17 of the CLA
Act, 1908. 5) Ajay Kumar @ Ajay Singh (A-22) for U/s
120B of IPC r/w sections 384 of I.P.C., section 17 of the
UA(P) Act, 1967, substantive offences under sections 17, 18
of the UA(P) Act, 1967, and section 17 of the CLA Act, 1908.
Heard, learned Spl. P.P. NIA for the prosecution.
Perused the case diary. It appears that Prima facie case is
made out against the each accused persons mentioned
above. Accordingly Cognizance is being taken against the
accused persons as follows :-
1) Mahesh Agarwal (A-18) for U/s 120B of I.P.C. r/w
section 17 of the UA(P) Act, 1967, substantive offences
under sections 17 and 18 of the UA(P) Act, 1967, section 17
of the CLA Act, 1908 and section 201 of I.P.C. 2) Sudesh
Kedia (A-19) for U/s 120B of IPC r/w sections 17 of the
UA(P) Act, 1967, substantive offences under sections 17, 18
and 21 of the UA(P) Act, 1967, and section 17 of the CLA
Act, 1908. 3) Vinit Agarwal (A-20) for U/s 120B of I.P.C.
r/w section 17 of the UA(P) Act, 1967, substantive offences
under sections 17 and 18 of the UA(P) Act, 1967, section 17
of the CLA Act, 1908 and section 201 of I.P.C. 4) Sonu
Agarwal (A-21) for U/s 120B of IPC r/w section 17 of the
UA(P) Act, 1967, substantive offences under sections 17, 18
and 21 of the UA(P) Act, 1967, and section 17 of the CLA
Act, 1908. 5) Ajay Kumar @ Ajay Singh (A-22) for U/s
120B of IPC r/w sections 384 of I.P.C., section 17 of the
UA(P) Act, 1967, substantive offences under sections 17, 18
of the UA(P) Act, 1967, and section 17 of the CLA Act, 1908.
Put up on date fixed i.e. 18.02.20 for supply of police
paper.‖
It transpires from the order dated 13.01.2020 that the
second supplementary charge-sheet No. 32-A/2018 dated
10.01.2020 was submitted before the learned Special Judge.
It further transpires that the petition filed for taking
cognizance by the investigating agency has been heard
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through learned Special P.P., NIA. The case diary has been
perused and thereafter it found to the learned Special Judge
that prima facie case is made out against the accused
persons including the appellants.
As would appear from the judgment rendered by the
Hon'ble Apex Court in the case of State of Gujarat v. Afroz
Mohammed Hasanfatta (Supra) wherein at paragraph 25 it
has been held that the Magistrate has the advantage of the
charge sheet, statement of witnesses and other evidence
collected by the police during the investigation. Investigating
Officer/SHO collects the necessary evidence during the
investigation conducted in compliance with the provisions of
the Criminal Procedure Code and in accordance with the
rules of investigation. Evidence and materials so collected are
sifted at the level of the Investigating Officer and thereafter,
charge sheet is filed. In appropriate cases, opinion of the
Public Prosecutor is also obtained before filing the charge
sheet. The court thus has the advantage of the police report
along with the materials placed before it by the police. Under
Section 190(1)(b) Cr.P.C., where the Magistrate has taken
cognizance of an offence upon a police report and the
Magistrate is satisfied that there is sufficient ground for
proceeding, the Magistrate directs issuance of process. In
case of taking cognizance of an offence based upon the police
report, the Magistrate is not required to record reasons for
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issuing the process. In cases instituted on a police report, the
Magistrate is only required to pass an order issuing
summons to the accused. Such an order of issuing summons
to the accused is based upon subject to satisfaction of the
Magistrate considering the police report and other documents
and satisfying himself that there is sufficient ground for
proceeding against the accused.
In Bhushan Kumar and Another v. State (NCT of
Delhi) and Another (Supra) the provision of Section 204 of
the Code of Criminal Procedure has been considered which
mandates for issuance of summons for calling upon any
person before a Magistrate. Section 204 of the Code does not
mandate the Magistrate to explicitly state the reasons for
issuance of summons. It clearly states that if in the opinion of
a Magistrate taking cognizance of an offence, there is
sufficient ground for proceeding, then the summons may be
issued. This section mandates the Magistrate to form an
opinion as to whether there exists a sufficient ground for
summons to be issued but it is nowhere mentioned in the
section that the explicit narration of the same is mandatory,
meaning thereby that it is not a prerequisite for deciding the
validity of the summons issued.
The Hon'ble Apex Court in the case of Sunil Bharti
Mittal v. Central Bureau of Investigation (Supra),
however, has laid down the ratio that for taking cognizance
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under Section 190 of the Code of Criminal Procedure, the
application of mind by the Magistrate is sine qua non and by
putting reliance upon the said judgment the order taking
cognizance has been sought to be quashed.
It is settled position of law that each and every judgment
is to be considered on the basis of the fact involved in the
said case as has been laid down in the case of Dr.
Subramanian Swamy v. State of Tamil Nadu and Others
[(2014) 5 SCC 75] at paragraph 47 which is quoted
hereunder :-
―47. It is a settled legal proposition that the ratio of
any decision must be understood in the background of
the facts of that case and the case is only an authority
for what it actually decides, and not what logically
follows from it. ―The court should not place reliance on
decisions without discussing as to how the factual
situation fits in with the fact situation of the decision
on which reliance is placed.‖‖
We have gone across the factual aspect of the judgment
rendered by Hon'ble Apex Court in the case of Sunil Bharti
Mittal v. Central Bureau of Investigation (Supra). It
transpires from the fact of the said case that a case was
instituted for the offences punishable under Section 120-B
IPC r/w Sections 13(2) and 13(1)(d) of the Prevention of
Corruption Act, 1988 (for short ―the PC Act‖). It was against
Mr. Shyamal Ghosh, Mr. J.R. Gupta and the three cellular
companies. Investigation started and charge-sheet filed. Mr.
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J.R. Gupta was not made accused as no material of any
conspiracy or being a part of the decision is attributed to him.
In the charge-sheet, CBI named Mr. Shyamal Ghosh and the
aforesaid three companies, namely, M/s Bharti Cellular Ltd.,
M/s Hutchison Max Telecom (P) Ltd. and M/s Sterling
Cellular Ltd. as the accused persons in respect of offences
under Section 13(2) read with Section 13(1)(d) of the PC Act
and allied offences. The learned Special Judge on 19.03.2013
passed orders recording his satisfaction to the effect that
there was enough incriminating material on record to proceed
against the accused persons. At the same time, the learned
Special Judge also found that Mr. Sunil Bharti Mittal was
Chairman-cum-Managing Director of Bharti Cellular Ltd., Mr.
Asim Ghosh was Managing Director of Hutchison Max
Telecom (P) Ltd. and Mr. Ravi Ruia was a Director in Sterling
Cellular Ltd., who used to chair the meetings of its Board.
According to him, in that capacity, these persons, prima facie,
could be treated as controlling the affairs of the respective
companies and represent the directing mind and will of each
company. They were, thus, ―alter ego‖ of their respective
companies and the acts of the companies could be attributed
and imputed to them. On this premise, the Special Judge felt
that there was enough material on record to proceed against
these three persons as well. Thus, while taking cognizance of
the case, he decided to issue summons not only to the four
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accused named in the charge-sheet but the aforesaid three
persons as well. In that backdrop the matter came before the
Hon'ble Apex Court and the Hon'ble Apex Court has quashed
and set aside the order taking cognizance and issuance of
summons holding therein that the proper application of mind
is required by the Magistrate. Therefore, the fact involved in
the said case was that no final form was submitted against
Mr. Sunil Bharti Mittal, Mr. Asim Ghosh and Mr. Ravi Ruia
but even then cognizance was taken and summons were
issued against them and in that pretext the plea has been
raised that when the police has not found any involvement of
these three persons on what basis Special Judge took
cognizance against them. The Hon'ble Apex Court, in such
circumstances, has laid down that reason is to be assigned
by the concerned Magistrate/Judge in taking cognizance as
to what led him to take cognizance against the accused
persons who have not been found to be sent up for trial,
meaning thereby, there is no embargo upon the Magistrate or
the Judge not to take cognizance against the person who has
not been sent up for trial in the police report but the
prerequisite condition for cognizance is that sufficient
reasons has to be assigned by the court.
But the fact herein is that the police has found
complicity of the appellants on the basis of sufficient material
surfaced in course of investigation and, therefore, charge-
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sheet has been submitted.
It is evident from order taking cognizance that the
learned Special Judge has heard the matter. Hearing of the
matter means that the learned Special P.P. has perused the
second supplementary charge-sheet as also the case diary
and that is the reason the learned Special Judge has
recorded in the impugned order that heard and perused the
case diary. ‗Perusal' means an activity of court below of
carefully reading, poring over or studying something with the
intent of remembering it. Thus, the meaning of ‗perusal'
denotes that careful and critical scrutiny of the material
placed before the court and on consideration when it has
been found to the learned Special Judge that prima facie
material is available for taking cognizance and for issuance of
process as also for commencing trial against the accused
persons, cognizance has been taken against the appellants.
In that view of the matter, on placing reliance upon the
judgment rendered in the case of State of Gujarat v. Afroz
Mohammed Hasanfatta (Supra) we are of the view that no
detailed reason is required, rather, from perusal of the
impugned order it appears that the judicial mind of the
learned Special Judge is there and on appreciation of the
second supplementary charge-sheet as also the case diary,
cognizance has been taken.
Accordingly, we are of the view that the order taking
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cognizance cannot be said to be without any reason or
without application of mind.
This issue is answered accordingly.
24. Whether it is a fit case where the matter may be
remitted before the learned Special Judge for taking
cognizance afresh?
Learned senior counsel appearing for the appellants has
submitted that the order is non-speaking and without any
application of mind as such, the same may be remitted before
the learned Special Judge for passing order afresh.
While on the other hand, learned senior counsel
appearing for the NIA, by referring the allegation leveled
against the appellants as under paragraph 17.12, 17.13 and
17.10 respectively of the second supplementary charge-sheet
as also the appended documents under the list of cited
documents, has submitted that the learned Special Judge,
after going through the case diary, second supplementary
charge-sheet and on hearing learned Spl. P.P. has taken
cognizance, hence it is not a fit case to remit the matter
before the learned Special Judge for passing a fresh order.
We have heard the learned counsel for the parties on
this issue.
In the facts of this case, more particularly, the allegation
as has been surfaced against the appellants as under para
17.12, 17.13 and 17.10 respectively of the second
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supplementary charge-sheet along with the appended
documents showing prima facie complicity of the appellants
and learned Special Judge, after going through the case diary
and after hearing the learned Spl. P.P. and on perusal of
second supplementary charge-sheet, has taken cognizance.
The matter could be remanded if on the face of the
second supplementary charge-sheet no complicity of the
appellant would have been found but the complicity of the
appellant has been found in the second supplementary
charge-sheet and hence, if the matter would be remitted
before the learned Special Judge for passing a fresh order,
the same will be futile exercise since again the same order
would be passed by recording the allegation leveled against
the appellants as referred at paragraphs 17.12, 17.13 and
17.10 respectively of the second supplementary charge-sheet.
In that view of the matter, it is not a fit case to remand
the issue before the learned Special Judge for passing a fresh
order.
Accordingly, this issue is answered.
25. Whether the order of sanction dated 27.12.2019 is
valid?
It has been argued by the learned counsel for the
appellants that the order of sanction is without any
application of mind. It has been submitted that the Central
Government has not made an independent reviews of the
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evidence extracted in course of investigation and without
doing so, has accorded the sanction.
While on the other hand, Mr. Vikramjit Banerjee,
learned senior counsel appearing for the NIA has submitted
that the order of sanction does not suffer from any infirmity,
rather the Central Government has applied its mind carefully
and thereafter the sanction has been accorded for initiation of
prosecution against the appellants.
We have appreciated the aforesaid argument and before
answering the issue deem it fit and proper to refer Section 45
of the Act, 1967 which reads as under :-
45. Cognizance of offences.--(1) No court shall take
cognizance of any offence--
(i) under Chapter III without the previous sanction of
the Central Government or any officer authorised by
the Central Government in this behalf;
(ii) under Chapter IV and VI without the previous
sanction of the Central Government or, as the case
may be, the State Government, and where such offence
is committed against the Government of a foreign
country without the previous sanction of the Central
Government.
(2) Sanction for prosecution under sub-section (1) shall
be given within such time as may be prescribed only
after considering the report of such authority
appointed by the Central Government or, as the case
may be, the State Government which shall make an
independent review of the evidence gathered in the
course of investigation and make a recommendation,
within such time as may be prescribed, to the Central
Government or, as the case may be, the State
Government.
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It is evident from the provision of Section 45 of the Act,
1967 that no court shall take cognizance of any offence
without the previous sanction of the Central Government or
any officer authorised by the Central Government in this
behalf. Sub-Section (2) thereof provides that sanction for
prosecution under sub-section (1) shall be given within such
time as may be prescribed only after considering the report of
such authority appointed by the Central Government or, as
the case may be, the State Government which shall make an
independent review of the evidence gathered in the course of
investigation and make a recommendation, within such time
as may be prescribed, to the Central Government or, as the
case may be, the State Government.
The order of sanction dated 27.12.2019 is also required
to be referred herein which reads as under :-
―No. 11011/08/2018/NIA
Government of India
Ministry of Home Affairs
CTCR Division
****
North Block, New Delhi
Dated, the 27 December, 2019
//ORDER//
Whereas, the Central Government had received information
regarding registration of a case FIR No.02/2016 dated 11.01.2016 at
Tandwa PS, District Chatra, Jharkhand u/s 414, 384, 386, 387, 120B
of the Indian Penal Code, sections 25(1-b)(a), 26, 35 of Arms Act and
section 17(1)(2) of Criminal Law Amendment Act relating to incidents of
extortion/levy collection/money laundering by the Maoist cadres in the
LWE affected States like Jharkhand and Bihar;
- 106 -
2. And whereas, sections 16, 17, 20, 23 of the Unlawful Activities
(Prevention) Act, 1967 were added later during the course of
investigation;
3. And whereas, keeping in view that a Scheduled Offence under the
NIA Act, 2008 has been committed and the gravity of the offence, the
case was entrusted to NIA for investigation vide order dated 13th
February, 2018 and the NIA registered the same as RC-
06/2018/NIA/DLI dated 16.02.2018 under sections 414, 384, 386,
387, 120B of the Indian Penal Code, sections 25(1-b)(a), 26, 35 of Arms
Act and section 17(1)(2) of Criminal Law Amendment Act and sections
16, 17, 20, 23 of the Unlawful Activities (Prevention) Act, 1967;
4. And whereas, chargesheet was filed against 16 accused persons
on 21.12.2018;
5. And whereas, the NIA, vide its letter dated 17th December, 2019
has recommended for prosecution of the below mentioned accused
persons for sections of law mentioned against their names and has
sought sanction of the Central Government under section 45(1) of the
Unlawful Activities (Prevention) Act, 1967:-
Accused Name of Accused Sections of Law
A-18 Mahesh Agarwal son of Late Section 201 of Indian Penal
Mahadeo Prasad Agarwal, Code.
present resident of Adhunik Section 17 & 18 of Unlawful
Power and Natural Resources Activities (Prevention) Act, 1967.
Ltd. Jail Church Complex, main Section 17 of Criminal Law
road, Ranchi (Jharkhand), Amendment Act, 1908.
permanent resident of BA 209,
Salt Lake City, Kolkata-64
A-19 Sudesh Kedia son of Late Section 17, 18 & 21 of
Gauri Shankar Kedia, resident Unlawful Activities (Prevention)
of Kedia House near Hanuman Act, 1967.
Temple, Ratu Road, Ranchi, Section 17 of Criminal Law
Jharkhand. Amendment Act, 1908.
A-20 Vinit Agarwal son of Binod Section 201 of Indian Penal
Agarwal, resident of adjacent of Code
Maa SBI Tower, Harihar Road, Section 17 & 18 of Unlawful
Bariyatu, Ranchi, Jharkhand. Activities (Prevention) Act, 1967.
Section 17 of Criminal Law
Amendment Act, 1908.
A-21 Amit Agarwal @ Sonu Agarwal, Section 17, 18 & 21 of
son of Shyam Sunder Agarwal, Unlawful Activities (Prevention)
resident of Flat No.B-77, Kabi Act, 1967.
Kandan Munundram Sarani, Section 17 of Criminal Law
Sector 2A, Bidhan Nagar, Amendment Act, 1908.
Durgapur, West Bangal-12.
A-22 Ajay Kumar @ Ajay Singh son Section 17 & 18 of Unlawful
of Shri Ram Janeshwar Singh, Activities (Prevention) Act, 1967.
resident of Qtr No.SCS B-3/10, Section 17 of Criminal Law
Central School, Surda, PO- Amendment Act, 1908.
Surda Mines, PS Mushabani,
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District-Singhbhum (East)
Jharkhand, permanent resident
of village-Tankupi, PO Dumara,
PS Haspura, District
Aurangabad, Bihar
6. and whereas, the Central Government in terms of the provisions
of section 45(2) of the Unlawful Activities (Prevention) Act, 1967 (as
amended) and the Unlawful Activities (Prevention) (Recommendation
and Sanction of Prosecution) Rules, 2008 referred the above mentioned
Investigation Report vide this Ministry's letter of even number dated
18th December, 2019 to the Authority comprising of two members
namely Justice Dr. Satish Chandra (Retired) and Dr.
T.K.Vishwanathan, Law Secretary (Retired), constituted vide this
Ministry's order No. 11034/1/2009/IS-IV dated 03.07.2015 for making
an independent review of the evidence gathered in the course of
investigation (term of the Authority extended till 31.07.2020 vide this
Ministry's order dated 17.06.2019);
7. And whereas, the Authority vide letter dated 20th December, 2019
forwarded its report to this Ministry within the time limit as prescribed
in rule 3 of the Unlawful Activities (Prevention) (Recommendation &
Sanction of Prosecution) Rules, 2008, and, after being satisfied with the
material available on record and facts and circumstances therein,
recommended for sanction for prosecution against the above mentioned
accused persons under the relevant sections of law including the
Unlawful Actitivies (Prevention) Act, 1967;
8. And now therefore, the Central Government, after carefully
examining the material placed on record and the recommendations of
the Authority, is satisfied that a prima facie case is made out against
the accused persons under the relevant sections of law and hereby
accords sanction for prosecution under section 45(1) of the Unlawful
Activities (Prevention) Act, 1967 for prosecuting following accused
persons in the Crime No. RC-06/2018/NIA/DLI of NIA for taking
cognizance of the said offence by a court of competent jurisdiction as
under :-
Accused Name of Accused Sections of Law for which
sanction for prosecution is
accorded
A-18 Mahesh Agarwal son of Late Section 17 & 18 of Unlawful
Mahadeo Prasad Agarwal Activities (Prevention) Act, 1967.
A-19 Sudesh Kedia son of Late Section 17, 18 & 21 of
Gauri Shankar Kedia Unlawful Activities (Prevention)
Act, 1967.
A-20 Vinit Agarwal son of Binod Section 17 & 18 of Unlawful
Agarwal Activities (Prevention) Act, 1967.
A-21 Amit Agarwal @ Sonu Agarwal, Section 17, 18 & 21 of
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son of Shyam Sunder Agarwal Unlawful Activities (Prevention)
Act, 1967.
A-22 Ajay Kumar @ Ajay Singh son Section 17 & 18 of Unlawful
of Shri Ram Janeshwar Singh Activities (Prevention) Act, 1967.
BY ORDER AND IN THE NAME OF
THE PRESIDENT OF INDIA
Sd/-
(Vijay Kumar Upadhyay)
Under Secretary to the Government of India‖
It is evident from the order dated 27.12.2019 that the
NIA vide its letter dated 17.12.2019 has recommended for
prosecution of the accused persons for Sections of law
mentioned against their names and has sought sanction of
the Central Government under Section 45(1) of the Act, 1967.
The Central Government, in terms of the provision of Section
45(2) of the Act, 1967 and the Unlawful Activities (Prevention)
(Recommendation and Sanction of Prosecution) Rules, 2008
referred the above mentioned investigation report to the
authority comprising of two members namely Justice Dr.
Satish Chandra (Retired) and Dr. T.K.Vishwanathan, Law
Secretary (Retired) constituted for making an independent
review of the evidence gathered in course of investigation. The
authority vide letter dated 20.12.2019 forwarded its report to
the Ministry and after being satisfied that the material
available on record and facts and circumstances therein,
recommended for sanction for prosecution and thereafter the
same has carefully been examined by the Central
Government and after being satisfied that prima facie case is
made out, the Central Government has accorded sanction
- 109 -
under Section 45(1) of the Act, 1967.
The requirement of law under Section 45 of the Act,
1967 that an independent review of the evidence gathered in
course of investigation is to be made and after taking into
consideration the report of the review and the
recommendation, the sanction is to be accorded by the
Central Government. Herein, on being reported by the
investigating agency along with the evidences collected in
course of investigation against the appellants, the same was
forwarded before a committee constituted by the Central
Government consisting of two members, namely, Justice Dr.
Satish Chandra (Retired) and Dr. T.K.Vishwanathan, Law
Secretary (Retired) for an independent review of the evidences
gathered in course of investigation. The said committee has
forwarded its report along with its recommendation for
sanction. The Central Government, thereafter, has carefully
examined the material placed on record and the
recommendation of the authority and on being satisfied prima
facie has accorded the sanction under Section 45(1) of the
Act, 1967.
26. In view thereof, we are of the view that the order of
sanction is in consonance with the provision of Section 45(2)
of the Act, 1967 and hence, the argument advanced on behalf
of the appellants raising the infirmity in the order of sanction
is having no substance. Accordingly the same is being
- 110 -
rejected.
Hence, this issue is also answered against the
appellants.
27. Before closing the matter, it requires to refer herein
about the applicability of the judgment rendered by Hon'ble
Apex Court in Criminal Appeal Nos. 314 - 315 of 2021
[Sudesh Kedia v. Union of India] upon which heavy reliance
has been placed by the learned counsel appearing for the
appellants.
28. It has been submitted on behalf of the appellants by
referring to paragraph 11 of the aforesaid judgment wherein a
finding has been recorded to the effect that payment of
extortion money does not amount to terror funding as also
further observation that the Hon'ble Apex Court is not
satisfied in the given fact that a case of conspiracy has been
made out at this stage only on the ground that the appellant
met the members of the organization and further, accepting
an amount of Rs.9,95,000/- was seized from the house of the
appellant which was accounted for by the appellant who
stated that the amount was withdrawn from the bank to pay
salaries to the employees and other expenses. Considering
that aspect of the matter, the Hon'ble Apex Court has not
agreed with the prosecution and as such, it has been
observed that at this stage, it cannot be said that the amount
seized from the appellant is proceed from terrorist activity
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since there was no allegation that appellant was receiving any
money, while on the other hand, the appellants are accused
of providing money to the members of TPC.
In view of such observation, learned counsel appearing
for the appellants has submitted that such observation
exactly pertains to the same FIR and charge-sheet which is
the subject matter of the instant appeals and since there is
an observation made by the Hon'ble Supreme Court that
merely payment of extortion money does not amount to terror
funding and the other evidence of conspiracy has also been
said to have no allegation and even the money recovered has
not been connected with the amount of terror funding and,
therefore, the appellants herein also deserves to be declared
having committed no offence of terror funding since herein
also allegation against the appellants is that they are
subjected to extortion.
29. While on the other hand, learned counsel appearing for
the NIA, has relied upon paragraph 12 of the aforesaid
judgment wherein it has been observed by Hon'ble Apex
Court to the effect ―we make it clear that these findings are
restricted only for the purpose of grant of bail to the appellant
and the trial court shall not be influenced by these
observations during trial‖ and, therefore, since herein it is not
a case of grant of bail by taking into consideration the
provision of Section 43D(5) of the Act, 1967, rather it is a
- 112 -
case of quashing of order taking cognizance and, therefore, in
the given fact and the stage, the aforesaid judgment is not
applicable.
30. We have considered the aforesaid submissions and
before answering the issue about applicability of the aforesaid
judgment in the case at hand, we deem it fit and proper to go
across the aforesaid judgment which has been passed looking
into the legality and propriety of the order passed by the
Co-ordinate Division Bench of this Court whereby and
whereunder a Bench of this Court vide order dated
24.06.2020 dismissed the criminal appeal upholding the
order dated 14.02.2020 by which the application filed for
grant of bail was dismissed by the Judicial Commissioner-
cum-Special Judge, NIA, Ranchi. The case at hand also
pertains to same FIR and charge-sheet.
For better appreciation, relevant passages from the
aforesaid judgment of Hon'ble Apex Court are quoted
hereunder:-
―9. Section 43-D (5) mandates that a person shall not be
released on bail if the court is of the opinion that there are
reasonable grounds for believing that the accusations made
are prima facie true. Apart from the other offences, the
Appellant is accused of committing offences under Section
17, 18 and 21 of the UA (P) Act. The Appellant is accused of
providing funds to a terrorist organization. According to the
prosecution, he has entered into a conspiracy with the other
members of the organization to strengthen and promote the
activities of the organization. Further, an amount of Rs.
- 113 -
9,95,000/- (Rupees Nine Lakh and Ninety-Five Thousand
only) was seized from the Appellant's house, making him
liable for punishable under Section 21 of the Act.
10. In National Investigation Agency v. Zahoor Ahmad Shah
Watali (supra), this Court considered the parameters for
exercise of the power under Section 43 (5) D, held as follows:
―23. By virtue of the proviso to sub-section (5), it is the
duty of the Court to be satisfied that there are
reasonable grounds for believing that the accusation
against the accused is prima facie true or otherwise.
Our attention was invited to the decisions of this
Court, which has had an occasion to deal with similar
special provisions in TADA and MCOCA. The principle
underlying those decisions may have some bearing
while considering the prayer for bail in relation to the
offences under the 1967 Act as well. Notably, under
the special enactments such as TADA, MCOCA and the
Narcotic Drugs and Psychotropic Substances Act,
1985, the Court is required to record its opinion that
there are reasonable grounds for believing that the
accused is ―not guilty‖ of the alleged offence. There is a
degree of difference between the satisfaction to be
recorded by the Court that there are reasonable
grounds for believing that the accused is ―not guilty‖ of
such offence and the satisfaction to be recorded for the
purposes of the 1967 Act that there are reasonable
grounds for believing that the accusation against such
person is ―prima facie‖ true. By its very nature, the
expression ―prima facie true‖ would mean that the
materials/evidence collated by the investigating agency
in reference to the accusation against the accused
concerned in the first information report, must prevail
until contradicted and overcome or disproved by other
evidence, and on the face of it, shows the complicity of
such accused in the commission of the stated offence.
It must be good and sufficient on its face to establish a
given fact or the chain of facts constituting the stated
- 114 -
offence, unless rebutted or contradicted. In one sense,
the degree of satisfaction is lighter when the Court has
to opine that the accusation is ―prima facie true‖, as
compared to the opinion of the accused ―not guilty‖ of
such offence as required under the other special
enactments. In any case, the degree of satisfaction to
be recorded by the Court for opining that there are
reasonable grounds for believing that the accusation
against the accused is prima facie true, is lighter than
the degree of satisfaction to be recorded for considering
a discharge application or framing of charges in
relation to offences under the 1967 Act....‖
11. While considering the grant of bail under Section 43 (5)
D, it is the bounden duty of the Court to apply its mind to
examine the entire material on record for the purpose of
satisfying itself, whether a prima facie case is made out
against the accused or not. We have gone through the
material on record and are satisfied that the Appellant is
entitled for bail and that the Special Court and High Court
erred in not granting bail to the Appellant for the following
reasons:
(A) A close scrutiny of the material placed before the
Court would clearly shows that the main
accusation against the Appellant is that he paid
levy / extortion amount to the terrorist
organization. Payment of extortion money does
not amount to terror funding. It is clear from the
supplementary charge-sheet and the other
material on record that other accused who are
members of the terrorist organization have been
systematically collecting extortion amounts from
businessmen in Amrapali and Magadh areas.
The Appellant is carrying on transport business
in the area of operation of the organization. It is
alleged in the second supplementary chargesheet
that the Appellant paid money to the members of
- 115 -
the TPC for smooth running of his business.
Prima facie, it cannot be said that the Appellant
conspired with the other members of the TPC
and raised funds to promote the organization.
(B) Another factor taken into account by the Special
Court and the High Court relates to the
allegation of the Appellant meeting the members
of the terror organization. It has been held by the
High Court that the Appellant has been in
constant touch with the other accused. The
Appellant has revealed in his statement recorded
under Section 164 Cr.PC that he was summoned
to meet A-14 and the other members of the
organization in connection with the payments
made by him. Prima facie, we are not satisfied
that a case of conspiracy has been made out at
this stage only on the ground that the Appellant
met the members of the organization.
(C) An amount of Rs. 9,95,000/- (Rupees Nine Lakh
and Ninety-Five Thousand only) was seized from
the house of the Appellant which was accounted
for by the Appellant who stated that the amount
was withdrawn from the bank to pay salaries to
his employees and other expenses. We do not
agree with the prosecution that the amount is
terror fund. At this stage, it cannot be said that
the amount seized from the Appellant is proceeds
from terrorist activity. There is no allegation that
Appellant was receiving any money. On the other
hand, the Appellant is accused of providing
money to the members of TPC.
12. After a detailed examination of the contentions of the
parties and scrutiny of the material on record, we are not
satisfied that a prima facie case has been made out against
the Appellant relating to the offences alleged against him. We
make it clear that these findings are restricted only for the
purpose of grant of bail to the Appellant and the trial court
- 116 -
shall not be influenced by these observations during trial.‖
(emphasis supplied)
The appellant before Hon'ble Apex Court, namely,
Sudesh Kedia, had given statement under Section 164 of the
Cr.P.C. that Subhan Mian contacted him and demanded
money for the smooth functioning of his business of transport
company i.e., M/s. ESSKAY Concast and Minerals Private
Limited. He further stated that he had a meeting with A-5, A-
10, A-11 and A-14. There was constant demand of payment
of levy. He admitted payment of huge amount of money.
The National Investigation Agency submitted a
supplementary charge-sheet against A-1 to A-15 on
21.12.2018 in which the modus operandi of collection of levy
from contractors, traders, transporters etc. was surfaced. On
further investigation, a second supplementary charge-sheet
was filed on 10.01.2020 in which the appellant was shown as
A-19. According to the supplementary charge-sheet, the
appellant is engaged in transportation of coal on behalf of
GVK Power and Godavari Commodities. He had attended
meeting with TPC Leaders and had paid levy to the TPC
leader Akraman (A-14), CCL employees and Village
Committee Members from his current account.
The aforesaid accused, appellant, had filed bail
application before the Judicial Commissioner-cum-Special
Judge, NIA, Ranchi but the same was dismissed, which order
- 117 -
has been affirmed by the Co-ordinate Division Bench of this
Court, against which appeal was filed before the Hon'ble Apex
Court. The Hon'ble Apex Court has considered the provision
as contained under Section 43D(5) of the Act, 1967 which
mandates that the person shall not be released on bail if the
court is of the opinion that there are reasonable grounds for
believing that the accusations made are prima facie true.
That Hon'ble Apex Court has further considered the
judgment rendered by Hon'ble Apex Court in National
Investigation Agency v. Zahoor Ahmad Shah Watali
[(2019) 5 SCC 1] wherein the power under Section 43D(5)
has been considered and it has been held :-
―23. By virtue of the proviso to sub-section (5), it is the
duty of the Court to be satisfied that there are
reasonable grounds for believing that the accusation
against the accused is prima facie true or otherwise.
Our attention was invited to the decisions of this
Court, which has had an occasion to deal with similar
special provisions in TADA and MCOCA. The principle
underlying those decisions may have some bearing
while considering the prayer for bail in relation to the
offences under the 1967 Act as well. Notably, under
the special enactments such as TADA, MCOCA and the
Narcotic Drugs and Psychotropic Substances Act,
1985, the Court is required to record its opinion that
there are reasonable grounds for believing that the
accused is ―not guilty‖ of the alleged offence. There is a
degree of difference between the satisfaction to be
recorded by the Court that there are reasonable
grounds for believing that the accused is ―not guilty‖ of
such offence and the satisfaction to be recorded for the
purposes of the 1967 Act that there are reasonable
grounds for believing that the accusation against such
person is ―prima facie‖ true. By its very nature, the
expression ―prima facie true‖ would mean that the
- 118 -
materials/evidence collated by the investigating agency
in reference to the accusation against the accused
concerned in the first information report, must prevail
until contradicted and overcome or disproved by other
evidence, and on the face of it, shows the complicity of
such accused in the commission of the stated offence.
It must be good and sufficient on its face to establish a
given fact or the chain of facts constituting the stated
offence, unless rebutted or contradicted. In one sense,
the degree of satisfaction is lighter when the Court has
to opine that the accusation is ―prima facie true‖, as
compared to the opinion of the accused ―not guilty‖ of
such offence as required under the other special
enactments. In any case, the degree of satisfaction to
be recorded by the Court for opining that there are
reasonable grounds for believing that the accusation
against the accused is prima facie true, is lighter than
the degree of satisfaction to be recorded for considering
a discharge application or framing of charges in
relation to offences under the 1967 Act....‖
It is, thus, evident that the Hon'ble Apex Court has
considered primarily in the appeal filed by accused, namely,
Sudesh Kedia, the provision of Section 43D(5) and while
considering the grant of bail under Section 43D(5), it has
been observed that it is the bounden duty of the Court to
apply its mind to examine the entire materials on record for
the purpose of satisfying itself, whether a prima facie case is
made out against the accused or not.
Thus, it is evident that the case upon which reliance has
been placed by the learned counsel for the appellants strictly
pertains to the provision of Section 43D(5) of the Act, 1967
which casts duty upon the Court to be satisfied that there are
reasonable ground(s) for believing that the accusation against
- 119 -
the accused is prima facie true or otherwise.
31. It further requires to refer herein the judgment rendered
by Hon'ble Supreme Court in Ranjitsing Brahmajeetsing
Sharma v. State of Maharashtra and Another [(2005) 5
SCC 294] wherein three Judges Bench of Hon'ble Supreme
Court has called upon to consider the scope of power of the
Court to grant bail and while considering, the Hon'ble
Supreme Court at paragraphs 36 to 38 has observed thus -
"36. Does this statute require that before a person is
released on bail, the court, albeit prima facie, must
come to the conclusion that he is not guilty of such
offence? Is it necessary for the court to record such a
finding? Would there be any machinery available to the
court to ascertain that once the accused is enlarged on
bail, he would not commit any offence whatsoever?
37. Such findings are required to be recorded only for
the purpose of arriving at an objective finding on the
basis of materials on record only for grant of bail and
for no other purpose.
38. We are furthermore of the opinion that the
restrictions on the power of the court to grant bail
should not be pushed too far. If the court, having
regard to the materials brought on record, is satisfied
that in all probability he may not be ultimately
convicted, an order granting bail may be passed. The
satisfaction of the court as regards his likelihood of not
committing an offence while on bail must be construed
to mean an offence under the Act and not any offence
whatsoever be it a minor or major offence. If such an
expansive meaning is given, even likelihood of
commission of an offence under Section 279 of the
Penal Code, 1860 may debar the court from releasing
the accused on bail. A statute, it is trite, should not be
interpreted in such a manner as would lead to
absurdity. What would further be necessary on the
part of the court is to see the culpability of the accused
and his involvement in the commission of an organised
crime either directly or indirectly. The court at the time
- 120 -
of considering the application for grant of bail shall
consider the question from the angle as to whether he
was possessed of the requisite mens rea. Every little
omission or commission, negligence or dereliction may
not lead to a possibility of his having culpability in the
matter which is not the sine qua non for attracting the
provisions of MCOCA. A person in a given situation
may not do that which he ought to have done. The
court may in a situation of this nature keep in mind
the broad principles of law that some acts of omission
and commission on the part of a public servant may
attract disciplinary proceedings but may not attract a
penal provision.‖
Further, at paragraph 24 of the judgment in National
Investigation Agency v. Zahoor Ahmad Shah Watali
(Supra), it has been held by Hon'ble Supreme Court which
reads as hereunder :-
"24. A priori, the exercise to be undertaken by the
Court at this stage--of giving reasons for grant or non-
grant of bail--is markedly different from discussing
merits or demerits of the evidence. The elaborate
examination or dissection of the evidence is not
required to be done at this stage. The Court is merely
expected to record a finding on the basis of broad
probabilities regarding the involvement of the accused
in the commission of the stated offence or otherwise.‖
Thus, it is evident that the findings regarding the offence
found to be prima facie true are required to be recorded only
for the purpose of arriving at an objective finding for grant of
bail and for no other purpose and after taking into
consideration the aforesaid proposition of law, the Hon'ble
Supreme Court in the Zahoor Ahmad Shah Watali's Case
at paragraph 24 has been pleased to observe that a priori, the
exercise to be undertaken by the Court at this stage--of
- 121 -
giving reasons for grant or non-grant of bail--is markedly
different from discussing merits or demerits of the evidence.
The elaborate examination or dissection of the evidence is not
required to be done at this stage. The Court is merely
expected to record a finding on the basis of broad
probabilities regarding the involvement of the accused in the
commission of the stated offence or otherwise.
The argument has been advanced on behalf of learned
counsel for the appellants that the observation made by
Hon'ble Apex Court in Sudesh Kedia v. Union of India
(Supra) although under the provision of Section 43D(5) of the
Act, 1967 can be considered even at the time of scrutinizing
the legality and propriety of the order taking cognizance but
we are not impressed with such argument taking into
consideration the clarification made by Hon'ble Apex Court at
paragraph 12 that whatever observation has been made are
restricted only for the purpose of grant of bail as would be
evident from paragraph 36 of the judgment rendered in
Ranjitsing Brahmajeetsing Sharma v. State of
Maharashtra and Another (Supra) and paragraph 24 of the
judgment rendered in National Investigation Agency v.
Zahoor Ahmad Shah Watali (Supra). Since therein
observation has been made that the duty as has been cast
upon the court in view of the provisions of Section 43D(5) of
the Act, 1967 is only at the stage as would be evident from
- 122 -
paragraph 24 of the Watali's case, meaning thereby, the
same has to be taken into consideration only for the purpose
of grant of bail.
The further contention that when the Hon'ble Supreme
Court has come to a conclusive finding about the allegation of
terror funding which has been casted upon Sudesh Kedia,
the appellant before the Hon'ble Supreme Court, basis upon
which he has been granted bail, therefore, there is no reason
not to consider the aforesaid finding at the time of
consideration of legality and propriety of the order taking
cognizance, this argument is not acceptable to us for the
reason that if that would have been the intention of the
Hon'ble Supreme Court, the observation would not have been
made at paragraph 12 of the judgment in Sudesh Kedia v.
Union of India (Supra).
We are not considering the bail application by taking
into consideration the provision of Section 43D(5) of the Act,
1967, rather the case is for quashing the order taking
cognizance and, therefore, according to our considered view,
in the given facts of this case and the prayer made in the
instant appeal which is for quashing of the order taking
cognizance, the order passed by the Hon'ble Apex Court in
the case of Sudesh Kedia v. Union of India (Supra) will not
be applicable in view of the observation made in paragraph
no.12 thereof. The Hon'ble Apex Court in paragraph 12 of the
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aforesaid judgment has made it clear that these findings are
restricted only for the purpose of grant of bail to the
Appellant and the trial court shall not be influenced by these
observations during trial.
32. Thus, it is further evident that what we have observed
hereinabove, the same is also fortified by the observation
made by Hon'ble Apex Court in paragraph 12 of the aforesaid
judgment to the extent that the applicability of the said
judgment would stand restricted only for the purpose of grant
of bail and, therefore, the judgment, in the given facts of the
case, would not be applicable in the case in hand.
33. This Court, after having answered the issues as above,
is of the view that no good ground could be raised by the
appellants for interference by this Court at this stage in the
order taking cognizance.
34. Accordingly, the appeals fail and are dismissed.
35. Before parting with the matter, we make it clear that
ordinarily we would not have delved upon in such detail the
materials collected during course of investigation which
emanate out of different paragraphs of the Charge Sheet and
have done close scrutiny and recorded findings but we were
compelled to do so as almost all learned counsel appearing
for the appellants have vehemently argued the fact of the
case. The same also stands reflected from their respective
written notes on submissions. In fact they, by doing so,
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invited our findings on fact. However, we make it clear that
the findings are restricted only for the purpose of dealing with
the matter of cognizance and the trial court shall not be
influenced by these observations or findings recorded in the
present judgment either at time of framing of charges or
during trial.
36. The interim orders dated 03.02.2020 and 10.02.2020
stand vacated.
37. In consequence of dismissal of these appeals, pending
interlocutory application(s), if any, also stands disposed of.
(Dr. Ravi Ranjan, C.J.)
I agree
(Sujit Narayan Prasad, J.)
(Sujit Narayan Prasad, J.)
Birendra/ A.F.R.
