Jharkhand High Court
Binod Kumar Ganjhu @ Vinod Kumar ... vs The Union Of India And Another on 29 November, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (Cr.) No. 308 of 2022
1. Binod Kumar Ganjhu @ Vinod Kumar Ganjhu @ Binod Ganjhu
2. Bindeshwar Ganju @ Bindu Ganjhu ..... Petitioners
Versus
The Union of India and Another .... ... Respondents
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Petitioners : Mr. Balaji Srinivasan, Advocate
Mr. Niranjan Kumar, Advocate
Ms. Aakriti Priya, Advocate
For NIA : Mr. Amit Kumar Das, Spl.PP
For Union of India : Mr. Vinod Kumar Sahu, Sr. Panel Counsel
---------
Order No. 10 /Dated: 29th November 2022
On 23rd August 2022, this Court has passed the following order:
"The learned counsel for the petitioners challenges the sanction
order dated 19th December 2018 by the Central Government vide
Annexure-18, primarily on the ground that it is not revealed
whether any record was transmitted to the Central Government on
the basis of which the order dated 19th December 2018 has been
passed. It is submitted that, prima facie, it appears that there was
no independent application of mind by the Ministry of Home
Affairs, Government of India while granting sanction for
prosecution vide order dated 19th December 2018.
2. The order dated 13th February 2018 has been challenged
on the ground that the said order has been issued on an
assumption that the offences under sections 16, 17, 20 and 23 of
the UAP Act, 1967 were added by the State police during the
course of investigation.
3. Mr. Balaji Srinivasan, the learned counsel for the
petitioners submits that from the records of the case it would
appear that offences under the UAP Act, 1967 are not added in the
original files, though three different and contradictory statements
as regards addition of the offences under the UAP Act, 1967 are
available in the records.
4. In the aforesaid state of affairs, Mr. Balaji Srinivasan, the
learned counsel for the petitioners invites this Court to call for the
records and examine by itself to satisfy its judicial conscience
whether the sanction for prosecution vide order dated 19 th
December, 2018 has been issued after an independent assessment
of the materials collected during the investigation by the State
police.
5. The learned counsel for the petitioners has relied on the
judgment in "Pradeep Ram v. State of Jharkhand & Anr."
(2019)17 SCC 326, the order dated 17.03.2022 passed by High
Court of Kerala in Crl. Rev. Pet. No.732 of 2019 title "Roopesh v.
State of Kerala", order dated 12.08.2022 passed by the Hon'ble
Supreme Court in SLP(Crl.) No.6981-6983 of 2022 title "The State
of Kerala & Ors. v. Roopesh" and the order dated 17.11.2021 of
the Hon'ble Supreme Court passed in W.P(C) No.1167 of 2021 title
"Amitabha Pande & Ors. v. Union of India & Ors.".
6. However, there are objections with respect to non-
disclosure of complete facts. On behalf of the petitioners
supplementary affidavit dated 13th July 2022 has been filed stating
that W.P(Cr.) No.399 of 2018 which was filed by the petitioner no.2
stood dismissed as withdrawn on 17th February 2021.
7. The petitioners shall produce necessary factual details as
regards other litigations, a look at which may be necessary in the
present proceeding. By way of supplementary affidavit, such facts
shall be disclosed by the petitioners, within two weeks.
8. There is also an issue arising on maintainability of this writ
petition (Criminal) particularly because the orders passed by the
Government of India have been challenged by the petitioners. In
view of section 21 of the National Investigation Agency Act, 2008
an appeal shall lie from any judgment, sentence or order before a
Division Bench and while so a criminal appeal can be maintained
against the order of cognizance dated 3rd January 2019 passed by
the Special Judge (NIA), Ranchi. However, as regards other
challenges the learned counsel for the petitioners needs to address
the Court whether those challenges can be maintained by the
petitioners before a Division Bench.
9. Post the matter on 13th September 2022."
2. Mr. Balaji Srinivasan, the learned counsel for the petitioners
has taken us through the application filed by the prosecution before the
Court of the learned Chief Judicial Magistrate, Chatra, in Tandwa PS Case
No.2 of 2016, the order dated 12th April 2017 passed by the learned Chief
Judicial Magistrate, Ranchi in NIA Case No.06 of 2018 corresponding to
Tandwa PS Case No.2 of 2016 and the order granting sanction dated 12 th
April 2017 in respect of co-accused Aakraman Jee @ Ravindra Ganjhu @
RamVinayak Singh Bhokta.
3. The learned counsel for the petitioners has also drawn our
attention to the order passed by the Hon'ble Supreme Court in "Pradeep
Ram v. State of Jharkhand and Another" (2019) 17 SCC 326 wherein the
Hon'ble Supreme Court has noticed the stand of NIA that provisions under
UAPA were added on 9th April 2017. The learned counsel for the petitioners
has also drawn our attention to the order dated 19 th December 2018 passed
by the Under Secretary to the Government of India, Ministry of Home
Affairs, (CTCR Division), New Delhi.
4. On the basis of these documents/orders, Mr. Balaji Srinivasan,
the learned counsel for the petitioners has raised two fold contentions (i) the
aforesaid orders presume invocation of the provisions under the Unlawful
Activities (Prevention) Act, 1967 (in short, UAPA) whereas the records
reveal that the provisions under UAPA were never invoked and added in the
original records, and (ii) the orders granting sanction are, therefore, result of
non-application of mind and suffer from lack of independent review by the
Authority under the Act.
5. To lay support to the aforesaid submissions, Mr. Balaji
Srinivasan, the learned counsel for the petitioners has extensively referred to
the order dated 17th March 2022 passed by High Court of Kerala in Crl. Rev.
Pet. No.732 of 2019 title "Roopesh v. State of Kerala".
6. The orders dated 12th August 2022 and dated 23rd September
2022 passed by the Hon'ble Supreme Court in Special Leave to Appeal
(Crl.) Nos.6981-6983 of 2022 which were preferred by the State of Kerala
against the aforesaid judgment in "Roopesh" have also been brought on
record.
7. Lastly, Mr. Balaji Srinivasan, the learned counsel for the
petitioners has tried to distinguish the order dated 18th January 2022 passed
by a Division Bench of this Court in Criminal Appeal (DB) No. 71 of 2020
title "Vinit Agarwal alias Vineet Agarwal v. Union of India and analogous
cases" on two grounds viz. (i) the plea urged in the present proceeding to
challenge the orders of sanction was never raised before the Division Bench
in the proceeding of "Vinit Agarwal and analogous cases", and (ii) the
order of sanction by the Central Government issued vide letter dated 19 th
December 2018 against the present petitioners is a separate order whereas a
different sanction order dated 27th December 2019 was under challenge in
the proceeding of "Vinit Agarwal and analogous cases".
8. For reply by NIA and Union of India, post this matter on 30 th
November 2022.
9. Part heard.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
sudhir
