Jharkhand High Court
Mahesh Agarwal vs Union Of India Through National ... on 22 April, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2025:JHHC:11853-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 997 of 2023
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Mahesh Agarwal, aged about 57 years, son of Late Mahadeo Prasad Agarwal,
permanent resident of BA 209, Salt Lake, P.O. Bidhannagar, P.S.
Bidhannagar (North), district North 24 Parganna, Kolkata-700064 (West
Bengal).
... ... Appellant
Versus
Union of India through National Investigation Agency, having its office at
N.I.A. Camp Office, Quarter No.305, Sector-II, P.O. Dhurwa, P.S. Dhurwa,
District Ranchi, Jharkhand.
... ... Respondent
With
Criminal Appeal (DB) No.1381 of 2023
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
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Aman Lekhi, Sr. Advocate
Mr. Nitesh Rana, Advocate
Mr. Indrajit Sinha, Advocate
Mr. Ritwiz Risabh, Advocate
Mr. Sumer Boparai, Advocate
Mr. Ujjwal Sinha, Advocate
Mr. Rishav Kumar, Advocate
Mr. Raksha Tripathy, Advocate
Mr. Lukesh Kumar, Advocate
Mr. Praveen Shankar, Advocate
For the Resp.-NIA : Mr. Amit Kumar Das, Advocate
Mr. Saurav Kumar, Advocate
Mr. Vineet Sinha, Advocate
------
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C.A.V. on 09.04.2025 Pronounced on 22.04.2025
Per Sujit Narayan Prasad J:
1. Both the aforementioned appeals have been heard together with consent of
the parties, since issues involved in both the appeals are interlinked to each
other, therefore, both the said appeals are being disposed of by this common
order.
2. The instant appeals have been preferred invoking the jurisdiction conferred
upon this Court under Section 21 of the National Investigating Agency Act.
3. The Cr. Appeal (DB) No.997 of 2023 has been preferred against the order
dated 31.05.2023 passed by AJC-XVI-cum-special Judge, NIA at Ranchi in
Misc. Crl. Application No.437 of 2023, whereby and whereunder, the
application for discharge which was filed by the present appellant has been
dismissed.
4. The Cr. Appeal (DB) No.1381 of 2023 has been preferred against the order
dated 31.07.2023 passed by AJC-XVI-cum-special Judge, NIA at Ranchi
whereby charges against the present appellant have been framed under
Section 120-B of the Indian Penal Code (IPC) 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 and Section 201 of the IPC.
5. Both the aforesaid impugned orders dated 31.05.2023 and 31.07.2023 have
been passed in connection with 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 AJC-XVI-cum-special Judge, NIA at
Ranchi.
Case of Prosecution and Factual Matrix
6. 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.
7. 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
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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).
8. 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 of the 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.
9. 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.
10. 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,
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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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. The Judicial Commissioner-cum-Special Judge, NIA took cognizance
against 16 accused persons namely Binod Kumar Ganjhu (A-1), Munesh
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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.
17. 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), (appellant herein),
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.
18. In the said charge-sheet, the present appellant has been arrayed as accused
(A-18) wherein it has been alleged that the present appellant (A-18) is the
Managing Director of M/s Adhunik Power and Natural Resources,
Jharkhand and 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
been alleged 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. It has
further been alleged that 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.
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19. It has been stated that the E-mail dated 03rd 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 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).
20. Further, it has been stated that the appellant deliberately deleted the emails
marked as CC to him, as such, 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.
21. In pursuance of the said second supplementary chargesheet, cognizance has
been taken by the court of Judicial Commissioner-cum-Special Judge, NIA,
Ranchi on 13.01.2020 against other co-accused namely Sudesh Kedia
(A19), Vinit Agarwal (A-20), Amit Agarwal @ Sonu (A-21) Ajay Kumar
@ Ajay Singh (A-22) and present appellant Mahesh Agarwal (A-18), 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.
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22. The said order taking cognizance dated 13.01.2020 had been challenged by
the appellant by way of an appeal being Cr. Appeal (DB) No.119 of 2020
before the co-ordinate Bench of this Court. The aforesaid appeal has been
heard at length by the co-ordinate Bench and consequently vide order dated
18.01.2022 the said appeal had been dismissed by not interfering with the
aforesaid order taking cognizance.
23. Against the order dated 18.01.2022 the present appellant had preferred a
Special Leave Petition being SLP(Crl.) No. 779 of 2022 before the Hon'ble
Apex Court. Vide order dated 25.02.2022 the Hon'ble Apex Court had
refused to interfere with the order dated 18.01.2022 and accordingly the
said special leave petition was disposed of.
24. Thereafter, the present appellant has moved an application being Misc. Crl.
Application No.437 of 2023 for discharge before special Judge, NIA at
Ranchi but vide order dated 31.05.2023 the said application for discharge
has been dismissed. Against the order dated 31.05.2023 the appellant has
preferred the instant appeal being Cr. Appeal (DB) No. 997 of 2023.
25. During pendency of the said appeal i.e. Cr. Appeal (DB) No. 997 of 2023
vide order dated 31.07.2023 passed by AJC-XVI-cum-special Judge, NIA
at Ranchi, charge has been framed against the present appellant under
Section 120-B of the Indian Penal Code (IPC) 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 and Section 201 of the IPC.
26. Accordingly, an appeal being Cr. Appeal (DB) 1381 of 2023 has been
preferred by the appellant against the order dated 31.07.2023 by which
charges have been framed against the appellant.
27. Since the matters pertaining to both the appeals are interlinked, therefore,
with the consent of the learned counsel for the parties, both the appeals are
being heard together.
Submission of the learned counsel for the appellant:
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28. Learned counsel for the appellant has assailed the order dated 31.05.2023
and order dated 31.07.2023 on the following grounds:-
(i) The appellant has not been implicated in first charge sheet pertaining to
Tandwa P.S. Case No. 02 of 2016 and as such, implicating him in the
second charge-sheet dated 10.01.2020 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 and 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 said accused persons but in the said
investigation no complicity of the appellant was found. Hence, their
implication in the subsequent charge-sheet is not justified.
(ii) No case is made out under Sections 15, 17 and 18 of the U.A.(P) Act,
since, for an offence under Section 17 of the UAPA to be made out,
mens rea is an essential requirement and it is an established tenet of
Criminal Jurisprudence that a person cannot be prosecuted for a
Criminal offence solely on the basis of actus reus in the absence of mens
rea especially when knowledge is a requirement for the offence to be
made out.
(iii) The act of paying extortion/levy under threat or duress cannot constitute
a voluntary Act. In the instant case, duress and duress of circumstances
were both present as the TPC members were directly threatening the
end users, coal traders and transporters as evident from the email dated
01.05.2017 and 02.05.2017 and further TPC had also created
circumstances to put the traders and end users in duress as they were
preventing the lifting and transportation of coal which meant disrupting
an essential supply. More-so, the act of the payment of extortion was
not the cause or even a sufficient cause that constituted the substantial
ingredients of the offence u/s 17 of the UAPA. It was the collection of
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the levy/extortion by the TPC members which was the cause of the
crime.
(iv) It is alleged in the 2nd supplementary charge-sheet that the appellant
paid money to the members of the TPC for smooth function of his
business but nothing has been brought on record to show that the
appellant conspired with others members of the TPC and raises funds
to promote the organization. Learned counsel in this regard has referred
the paragraph 13.1 of the judgment rendered by the Hon'ble Apex Court
in the case of Sudesh Kedia vs U.O.I., (2021) 4 SCC 704.
(v) The argument of the prosecution that the non-reporting of the extortion
by the appellant does not entitle him to raise the defence at a later stage
is completely erroneous and fallacious. The non-reporting of the
extortion committed by TPC members on the Appellant and his
Company does not constitute an omission. As there was no legal duty
upon the Appellant to report the illegal act of the TPC members.
However, the law does not recognise the non-fulfilment of a moral duty
as an omission. Reliance in this regard is placed upon P.B. Desai vs
State of Maharashtra & Anr. (2013) 15 SCC 481.
(vi) No offence of conspiracy is made out as present appellant was stationed
in Kolkata and has no relation with day-to-day affair of the Ranchi
Office or the plant. There is no thread of conspiracy tying the accused
with the other co-accused persons in the instant case reason being that
an essential of criminal conspiracy is the meeting of minds, which is
evidently not the case here. In the aforesaid context, the learned counsel
has put his reliance on the judgment rendered by the Hon'ble Apex
Court in the case of CBI vs. K. Narayan Rao (2012)9 SCC 512 and
Yogesh Vs State of Maharashtra (2008) SCC 394.
(vii) 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. The Appellant was not named in the FIR or the
subsequent Chargesheets filed by the NIA or Chatra Police. As is
evident from above till April 2019, the Appellant was a mere witness.
However, without any change of circumstance or any new evidence, the
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status of the Appellant was arbitrarily changed from Witness to an
Accused in the 2nd Supplementary Chargesheet. Reliance in this regard
is placed upon Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762.
(viii) The Appellant is neither a member of the extortion gang/ TPC member
nor a transporter who was directly collecting cash on behalf of the
extortion gang. Further, the appellant was never on ground and has
never ever met or spoken/interacted with a single extortion gang
member or TPC operative or their associates. He was stationed in
Kolkata in the Corporate Office and was only informed about the
running of the business by way of few emails.
(ix) Further, the Appellant is better placed than the other co-accused person
which would be evident from the fact that Sanjay Jain (A-9) an
employee of APNRL, an accused in the first Supplementary
Chargesheet has been charged with offence of s. 120B r/w Section 384
of IPC i.e., extortion, whereas the Appellant herein has not even been
charged with S. 384 of IPC., therefore, it is explicitly clear that the
Appellant had no role in extortion and was a mere victim. Therefore,
the instant prosecution under Section 17 & 18 of the UAPA cannot
continue against the Appellant the same being a clear abuse of the
process of law.
(x) The prosecution has been continuously changing its position and has
been drawing conclusions as per its whims and fancies. With every
stage of pleadings, the NIA's averments change. From a case of
extortion, it became a case of terror funding. From the Appellant
indulging in terror funding for alleged Coal trade business, they have
now improvised their case that the funding was being done to
monopolize the coal business and deter other businessmen.
(xi) Protected Witnesses D, E & G don't even mention the name of the
Appellant and Only Protected Witness B mentions the name of
Appellant but from the perusal of statement of the Protected Witness B
it would be evident that the statement of Protected Witness B is not
incriminatory and is laden with stark contradictions and improvement
in his 161 Cr.P.C. statement.
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(xii) The Learned Special Judge has failed to appreciate that the Appellant
is not the Managing Director or Proprietor of APNRL. The Appellant is
merely a Director in the Company. Further, the Appellant has been
arraigned as an accused in the matter in his capacity as Director/MD of
APNRL. However, the Company has not been arraigned as an accused,
whereas it was the Company that was paying the alleged extortion/levy
personally from its own account. In the absence of the Company being
an Accused u/s Section 22A of UAPA, the Appellant cannot be held
vicariously liable for the acts of the Company as such. In order to fortify
this limb of the argument the learned counsel had put his reliance on
the following Judgment:
(i) Himanshu v. B Shiwamurthy, (2019) 3 SCC 797 (Para 7, 8, 12,
13)
(ii) MD Castrol India Ltd v State of Karnataka (2018) 17 SCC
275 (Para 5, 7, 8)
(iii) Charanjit Pal Jindal vs L.N. Metalics (2015) 15 SCC 768
(Para 8, 10, 12)
29. On the aforesaid score, the learned counsel for the appellant has
submitted that the order rejecting discharge application dated
31.05.2023 is 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 judicial mind. Consequently, the impugned order dated
31.07.2023 by which charges have been framed, is also absolutely
illegal, arbitrary and non-est in law.
30. The impugned order has been passed without proper appreciation of
facts and law and there has been no application of judicial mind by the
learned Spl. Judge. Therefore, the impugned orders are bad in law and
contrary to the facts of the case and is liable to be set aside on this
ground alone.
Submission of the learned counsel for the respondent/NIA:
31. 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
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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.
The Hon'ble Apex Court in Pradip Ram v. State of Jharkhand [2019
SCC Online SC 825], has observed 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.
32. The appellant had previously moved this Hon'ble Court in Cr. Appeal
(DB) No. 119 of 2020 being aggrieved by the order taking cognizance
and issuance of summons to the appellant. At that stage, the appellant
had raised all possible pleas available to him. The charge against the
appellant was discussed in detail in paragraph 7(b) of the said judgment
dated 18.01.2022 (Annexure-A of the Counter Affidavit) at internal
page 18 and, thereafter, all argument of the appellant was considered in
detail and after considering all aspects of the matter including the
materials collected during investigation, the Hon'ble Court had
dismissed the plea of the appellant. Further, the order dated 18.01.2022
has been affirmed by the Hon'ble Apex Court by declining to interfere
with the order dated 18.01.2022.
33. Thus, from the aforesaid it is evident that all the issues which have been
contended herein by the appellant has already been addressed by co-
ordinate Bench of this Court, as such the order dated 31.05.2023 by
which application for discharge has been dismissed requires no
interference of this Court.
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34. So far as the issue of mens rea 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 in course of
trial when the evidence will be led in this regard.
35. 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 appellant.
36. Apart from the aforesaid facts, it has come during investigation that
appellant was one of the conspirators along with Sanjay Jain and Ajay
Singh who were instrumental in getting Rs.200/-PMT collected back
from the truck owners and get the same paid to the operatives of TPC.
Against this payment, the appellant used to take the help of TPC for
negotiating terms with the truck owners and also used their influence
for better bargain with the truck owners.
37. Further, the plea for discharge of Sanjay Jain, the co-accused, had
already been considered by this Hon'ble Court in Cr. Appeal (DB) No.
859 of 2019 (Annexure C of the Counter Affidavit)) wherein this
Hon'ble Court was pleased to dismiss the said appeal by a judgment
dated 31st January, 2022, observing that whether the acts attributed to
the appellant were voluntary or involuntary is a question of fact which
can be decided only when an evidence is led during trial.
38. This Hon'ble Court has also considered the appeals arising out of
rejection of discharge application of the other co-accused Ajit Kumar
Thakur in Cr. Appeal (DB) No. 367 of 2020, wherein the plea as to
whether the said accused had work in the interest of his company,
namely, Central Coalfields Limited or not, was considered by this
Hon'ble Court and after considering all aspects of the matter including
the power of NIA to make further investigation, the issue as to whether
a formal declaration of TPC as a terrorist organization is required for
attracting offences under Sections 15, 17 or 18 of the Unlawful
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Activities (Prevention) Act, 1967 and the role of the said accused, has
held that the Court below while considering the discharge application
has considered all materials collected during investigation which were
supported by the statements of the witnesses indicating close
association of the said appellant with terrorist gang in the act of
extortion of money as well as conspiracy, was pleased to dismiss the
said appeal by a judgment dated 24.11.2021 (Annexure D of the
Counter Affidavit).
39. 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 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).
40. 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.
41. 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.
42. According to learned counsel, as per the specific allegation the
appellant has been found to be involved in collecting money for raising
funds for terrorist gang and hence, there is ingredient of application of
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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 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
appellant 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 appellant that no case is made out under
Section 17 of the Act, 1967 has got no substance.
43. 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 appellant has 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
Akraman (A-14), therefore, sufficient materials are available pertaining
to conspiracy for raising funds for terrorist gang TPC.
44. During the course of further investigation disclosure memorandum of
co-accused Prem Vikas @ Mantu Singh marked as (D-182 of 2nd
Supplementary Charge-sheet) was recorded on 27.09.2019 which
reveals that the amount of illegal recovery was Rs.200 per ton, which
includes the levy of Rs. 40 per ton from TPC, Rs.110 per ton from rural
committee and Rs.29 per ton from CCL. The bill surrendered by this
accused in lieu of transiting was verified by Sanjay Jain General
Manager of Adhunik Power & Natural Resources Limited and sent to
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Mahesh Agarwal (appellant herein) for approval and after his approval
it was sent to the State Bank of India corporate branch in his office.
45. Further, Appellant was under no threat or in duress, being the purchaser
of coal for his company who had engaged transporters for the receiving
the coal from C.C.L and delivering the same to its destination, i.e.
factory of M/s Aadhunik Power and Natural Resource ltd. However, in
order to maintain monopoly and simultaneously create a deterrence
amongst the other industrialist who intended to purchase coal, the
Appellant has been extending financial help to the terrorist gang, TPC,
and conspired with co accused Sanjay Jain and Ajay Kumar @ Ajay
Singh for raising funds for TPC, a proscribed unlawful organization by
the Govt. of Jharkhand. Thus, the contention of the learned counsel for
the appellant that the appellant Mahesh Agarwal has not committed
offences under section 120B of 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, is devoid of the merit.
46. The documentary and oral evidences against the appellant reveals that
he was in complete knowledge of levy being paid to illegal village
committee, knowingly that this amount will be used by operatives of
TPC for purchase of Arms/ammunition for the furtherance of terrorist
activities. The e-mails dated 03rd April and 30th April recovered at the
instance of co-accused (A-9) revealed that the appellant was in
knowledge of levy being paid to illegal village committee member and
TPC operatives.
47. Therefore, it is prima facie established that the appellant was in
complete knowledge that levy is being paid by their company to TPC.
Further, it has come that the appellant deliberately deleted the e-mails
marked as CC to him. It is established that the appellant colluded with
members of terrorist gang TPC, and others and abetted/prompted/
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 through co- accused A-14, A-9 and A-22 for smooth
running of his business.
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48. It is further submitted that the case of the Appellant is entirely on
different footing than that of Sudesh Kedia. Sudesh Kedia was a
transporter whereas the Appellant was the purchaser of coal, who, in
order to cause deterrence amongst other prospective purchasers has
been found to be funding terrorist gang and for the purpose thereof, had
made payments at the rate of Rs. 200/ MT in excess to each transporter
and thereafter, got the excess amount so paid, realized in cash, and
passed it on to the terrorist gang. Therefore, the role of the appellant is
much serious than that of the role of transporters like Sudesh Kedia.
However, the Hon'ble Apex Court in the case Sudesh Kedia vs. Union
of India, (2021) 4 SCC 704, has made it clear that the findings are
restricted only for the purpose of grant of bail.
49. It needs to refer herein that Collecting/raising fund for terrorist
activities is an offence punishable under section 17 of the UA (P) Act
and the appellant having been found to have involved himself directly
or indirectly in raising funds and thus, enabling the terrorist gang to
make preparation by purchase of arms and ammunitions for
commission of terrorist act and such, conspiracy was obviously in
furtherance of mutual economic collusive.
50. Further, the Central Government being satisfied that prima facie case is
made out, has accorded sanction under Section 45(1) of the Act, 1967.
However, the issue of sanction was already raised by the co-accused
Binod Kumar Ganjhu @Vinod Kumar Ganjhu in W.P. (Cr.) (DB)
No.308 of 2022 and the Hon'ble Court has dismissed the same on merits
vide order dated 30.11.2022.
51. So far as the argument of the appellant that order rejecting the
application for discharge 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 rejecting discharge 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 material available
on record and thereafter order rejecting discharge application has been
passed.
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52. Learned Special Court, NIA after going through the materials available
on record and taking into consideration the Law of the land has framed
charge against the appellant on 31.07.2023, after two months of
rejection of his discharge application on 31.05.2023. However, during
the pendency of this instant appeal the trial has proceeded and as many
as 4 witnesses have already been examined.
53. Learned Spl. Court, NIA after going through the materials available on
record and taking into consideration the Law of the land has passed
reasoned order which requires no interference by this Hon'ble Court.
54. From the aforementioned facts, it is apparent that sufficient materials
have been collected during investigation on the basis of which charge
has been framed against the appellant and apparently, examination of
witnesses has already commenced and in such circumstances, the
appellant has failed to make out a case of discharge and as such, the
instant appeal being devoid of merit is, thus, liable to be dismissed.
55. It is relevant to mention that the instant appeal was filed challenging the
order framing charges but during the pendency of this instant appeal the
trial has proceeded and as many as 4 witnesses have already been
examined and in this view of the fact as the trial is in progress, the
instant appeal has become infructuous.
Analysis
56. 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 the NIA Act, 2008.
57. The UA(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
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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 UA(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."
58. The terrorist organisation 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 under the same name as an
organisation so listed."
59. The unlawful activity has been defined under Section 2(o) which reads
as under:
"2.(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."
60. It is evident from the definition of "terrorist organisation" 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 UA(P) Act, 1967 will only be applicable to a terrorist organisation
which has been listed in Schedule-I.
61. 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 organisation"
as contained 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 organisation has not been listed in Schedule as contained in UA(P)
Act, 1967, even then the penal offence would be attracted against a gang
which is concerned with, or involved in, terrorist act.
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62. To achieve the said object and purpose of effective prevention of certain
unlawful activities the Parliament in its wisdom has provided that where
an association is declared unlawful by a notification issued under
Section 3, a person, who is and continues to be a member of such
association shall be punishable with imprisonment for a term which
may extend to 2 years and shall also be liable to fine.
63. Clause (m) of Section 2 of the 1967 Act defines "terrorist organisation".
It is defined as an organisation listed in the First Schedule. CPI (Maoist)
has been listed at Item 34 in the first schedule. Chapters III onwards of
the 1967 Act incorporate various offences. Chapter 4 has the title
"punishment for terrorist act". Clause (k) of Section 2 provides that
"terrorist act" has the meaning assigned to it under Section 15 and 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.
64. Further Section 10(a)(i) of the Act 1967 provides that where an
association is declared unlawful by a notification issued under Section
3 which has become effective under sub-section (3) of that Section, a
person, who is continues to be a member of such association shall be
punishable with imprisonment for a term which may extend to two
years and shall also be liable to fine therefore, so long as Section
10(a)(i) stands a person who is or continues to be a member of such
association shall be liable to be punished.
65. As per mandate of Section 13 of the Act, 1967 who takes part in or
commits, or advocates, abets, advises or incites the commission of, any
unlawful activity, shall be punishable with imprisonment for a term
which may extend to seven years and shall also be liable to fine.
66. 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.
67. 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
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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
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 byway of Act 3
of 2013 with effect from 1-2-2013. The main objective of the Act, 1967
is to make powers available for dealing with activities directed against
the integrity and sovereignty of India. As per Preamble, Act, 1967 has
been enacted to provide for the more effective prevention of certain
unlawful activities of individuals and associations and dealing with
terrorist activities and for matters connected therewith. Therefore, the
aim and object of enactment of the UAPA is also to provide for more
effective prevention of certain unlawful activities.
68. 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.
69. Meaning thereby, raising of funds directly or indirectly to commit a
terrorist act by a terrorist organisation 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.
70. 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
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specifically covered under Section 15 shall also be construed as an
offence.
71. Further it is evident from the Section 22 of the Act, 1967, 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 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 those
circumstances, whoever is connected with the affairs of the Company
shall be deemed to be guilty of the offence.
72. After discussing the aforesaid core of the UAP Act 1967 , it requires to
refer herein that 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.
73. 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 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.
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74. 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.
75. 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.
76. Since the further investigation is issue herein which has been raised by
the learned counsel for the parties as such it would be profitable to refer
herein the Section 6 of the NIA Act, 2008 which contains provision
pertaining to investigation of Scheduled offences which reads as
under:--
"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 subsection (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.
77. It has been provided in the provision of Section 6 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-
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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.
78. 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.
79. Section 7 provides power to transfer investigation to the State
Government as also Section 8 provides power to investigate connected
offences.
80. 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.
81. At this juncture in the backdrop of the aforesaid this Court thinks fit to
discuss the admitted factual aspects of the instant case.
82. The instant case pertains to the incident of extortion/levy collection/ in
Left Wing Extremism affected States like Jharkhand. A case was
registered by Tandwa Police Station, District Chatra, being Tandwa P.S.
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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).
83. It has been alleged that 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.
84. After investigation, Charge-sheet 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 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.
85. 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.
86. 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, directed
the NIA to take up investigation of the case and accordingly, Tandwa
P.S. Case No.02 of 2016 was re-registered as NIA Case No. R.C.-
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06/2018/NIA/DLI 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.
87. 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. Consequently,
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,
1967 from the competent authority and 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 further investigation is being
continued as per the provision of Section 173(8) of the Code of Criminal
Procedure.
88. The Judicial Commissioner-cum-Special Judge, NIA took cognizance
against 16 accused persons on 21.12.2018 and 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), (appellant herein), 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.
89. In pursuance of the said second supplementary chargesheet, cognizance
has been taken by the court of Judicial Commissioner-cum-Special
Judge, NIA, Ranchi on 13.01.2020 against co-accused namely Sudesh
Kedia (A19), Vinit Agarwal (A-20), Amit Agarwal @ Sonu (A-21) Ajay
Kumar @ Ajay Singh (A-22) and present appellant Mahesh Agarwal
(A-18), 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.
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90. The said order taking cognizance dated 13.01.2020 had been challenged
by the appellant by way of an appeal being Cr. Appeal (DB) No.119 of
2020 before the co-ordinate Bench of this Court and consequently vide
order dated 18.01.2022 the said appeal had been dismissed by this Court
by not interfering with the aforesaid order taking cognizance.
91. Against the order dated 18.01.2022 the present appellant had preferred
a Special Leave Petition being SLP(Crl) No. 779 of 2022 before the
Hon'ble Apex Court. Vide order dated 25.02.2022 the Hon'ble Apex
Court had refused to interfere with the order dated 18.01.2022 and
accordingly the said special leave petition was disposed of.
92. Thereafter, the present appellant has moved an application being Misc.
Crl. Application No.437 of 2023 for discharge before special Judge,
NIA at Ranchi but vide order dated 31.05.2023 the said application for
discharge has been dismissed. Against the order dated 31.05.2023 the
appellant has preferred the instant appeal being Cr. Appeal (DB) No.
997 of 2023.
93. During pendency of the said appeal i.e. Cr. Appeal (DB) No. 997 of
2023 vide order dated 31.07.2023 passed by AJC-XVI-cum-special
Judge, NIA at Ranchi, charge has been framed against the present
appellant under Section 120-B of the Indian Penal Code (IPC) 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 and Section 201 of the
IPC.
94. Accordingly, an appeal being Cr. Appeal (DB) 1381 of 2023 has been
preferred by the appellant against the order dated 31.07.2023 by which
charges have been framed against the appellant.
95. In the background of the facts/legal position stated hereinabove, the
issues which require consideration are--
(i) Whether the order dated 31.05.2023 by which the application for
discharge filed by the appellant has been dismissed, can be said
to suffer from an error?
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(ii) Whether the order dated 31.07.2023 by which charges under
sections 120-B of the Indian Penal Code (IPC) 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 and Section 201
of the IPC has been framed against appellant can be said to
suffers from an error?
(iii) Whether the evidence which has been collected in course of
investigation and has been brought on record, as would be
available in the impugned order prima facie case against the
petitioner is made out or not?
96. Since all the aforementioned issues are interlinked as such, they are
taken up together.
97. At this juncture it would be appropriate to consider the ambit and scope
of the powers of the Court at the time of considering the discharge
application.
98. It is well settled that at the time of framing of charge meticulous
examination of evidence is not required, however the evidence can be
sifted or weighed at least for the purpose of recording a satisfaction that
a prima facie case is made out for framing charge to proceed in the case.
Further the trial Court is not required to discuss the evidence for the
purpose of conducting a trial but the discussion of the materials on
record is required to reflect the application of judicial mind for finding
that a prima-facie case is made out against the petitioner.
99. It is settled connotation of law that at the stage of framing of charge, the
probable defence of the accused is not to be considered and the
materials, which are relevant for consideration, are the allegations made
in the First Information Report/complaint, the statement of the
witnesses recorded in course of investigation, the documents on which
the prosecution relies and the report of investigation submitted by the
prosecuting agency. The probative value of the defence is to be tested
at the stage of trial and not at the stage of framing of charge and at the
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stage of framing of charge minute scrutiny of the evidence is not to be
made and even on a very strong suspicion charges can be framed.
100. Further it is settled position of law that at the stage of framing the
charge, the trial Court is not required to meticulously examine and
marshal the material available on record as to whether there is sufficient
material against the accused which would ultimately result in
conviction. The Court is prima facie required to consider whether there
is sufficient material against the accused to presume the commission of
the offence. Even strong suspicion about commission of offence is
sufficient for framing the charge, the guilt or innocence of the accused
has to be determined at the time of conclusion of the trial after evidence
is adduced and not at the stage of framing the charge and, therefore, at
the stage of framing the charge, the Court is not required to undertake
an elaborate inquiry for the purpose of sifting and weighing the
material.
101. The issue of discharge was the subject matter before the Hon'ble
Supreme Court in the case of State of Tamilnadu, by Inspector of
Police in Vigilance and Anti-Corruption v. N. Suresh Rajan, (2014)
11 SCC 709, wherein at paragraphs no. 29, 32.4, 33 and 34 the Hon'ble
Apex Court has been observed as under:--
"29. We have bestowed our consideration to the rival submissions and
the submissions made by Mr. Ranjit Kumar commend us. True it is that
at the time of consideration of the applications for discharge, the court
cannot act as a mouthpiece of the prosecution or act as a post office
and may sift evidence in order to find out whether or not the allegations
made are groundless so as to pass an order of discharge. It is trite that
at the stage of consideration of an application for discharge, the court
has to proceed with an assumption that the materials brought on record
by the prosecution are true and evaluate the said materials and
documents with a view to find out whether the facts emerging therefrom
taken at their face value disclose the existence of all the ingredients
constituting the alleged offence. At this stage, probative value of the
materials has to be gone into and the court is not expected to go deep
into the matter and hold that the materials would not warrant a
conviction. In our opinion, what needs to be considered is whether there
is a ground for presuming that the offence has been committed and not
whether a ground for convicting the accused has been made out. To put
it differently, if the court thinks that the accused might have committed
the offence on the basis of the materials on record on its probative value,
it can frame the charge; though for conviction, the court has to come to
the conclusion that the accused has committed the offence. The law does
not permit a mini trial at this stage.
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32.4. While passing the impugned orders [N. Suresh Rajan v. Inspector
of Police, Criminal Revision Case (MD) No. 528 22 of 2009, order
dated 10-12-2010 (Mad)], [State v. K. Ponmudi, (2007) 1 Mad LJ (Cri)
100], the court has not sifted the materials for the purpose of finding
out whether or not there is sufficient ground for proceeding against the
accused but whether that would warrant a conviction. We are of the
opinion that this was not the stage where the court should have
appraised the evidence and discharged the accused as if it was passing
an order of acquittal. Further, defect in investigation itself cannot be a
ground for discharge. In our opinion, the order impugned [N. Suresh
Rajan v. Inspector of Police, Criminal Revision Case (MD) No. 528 of
2009, order dated 10-12-2010 (Mad)] suffers from grave error and calls
for rectification.
33. Any observation made by us in this judgment is for the purpose of
disposal of these appeals and shall have no bearing on the trial. The
surviving respondents are directed to appear before the respective
courts on 3-2-2014. The Court shall proceed with the trial from the
stage of charge in accordance with law and make endeavour to dispose
of the same expeditiously.
34. In the result, we allow these appeals and set aside the order
of discharge with the aforesaid observations.
102. It has been further held in the case of Asim Shariff v. National
Investigation Agency, (2019) 7 SCC 148, that mini trial is not expected
by the trial court for the purpose of marshalling the evidence on record
at the time of framing of charge. It has been held at paragraph no. 18 of
the said judgment as under:--
"18. Taking note of the exposition of law on the subject laid down by
this Court, it is settled that the Judge while considering the question of
framing charge under Section 227 CrPC in sessions cases (which is
akin to Section 239 CrPC pertaining to warrant cases) has the
undoubted power to sift and weigh the evidence for the limited purpose
of finding out whether or not a prima facie case against the accused has
been made out; where the material placed before the court discloses
grave suspicion against the accused which has not been properly
explained, the court will be fully justified in framing the charge; by and
large if two views are possible and one of them giving rise to suspicion
only, as distinguished from grave suspicion against the accused, the
trial Judge will be justified in discharging him. It is thus clear that while
examining the discharge application filed under Section 227 CrPC, it
is expected from the trial Judge to exercise its judicial mind to
determine as to whether a case for trial has been made out or not. It is
true that in such proceedings, the court is not supposed to hold a mini
trial by marshalling the evidence on record."
103. It is further settled position of law that defence on merit is not to be
considered at the time of stage of framing of charge and that cannot be
a ground of discharge. A reference may be made to the judgment as
rendered by the Hon'ble Apex Court in State of Rajasthan v. Ashok
Kumar Kashyap, (2021) 11 SCC 191. For ready reference Paragraph
no. 11 of the said judgment are quoted below:--
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"11. While considering the legality of the impugned judgment [Ashok
Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj 3468] and
order passed by the High Court, the law on the subject and few
decisions of this Court are required to be referred to.
11.1. In P. Vijayan [P. Vijayan v. State of Kerala, (2010) 2 SCC
398 : (2010) 1 SCC (Cri) 1488], this Court had an occasion to consider
Section 227 CrPC What is required to be considered at the time of
framing of the charge and/or considering the discharge application has
been considered elaborately in the said decision. It is observed and held
that at the stage of Section 227, the Judge has merely to sift the evidence
in order to find out whether or not there is sufficient ground for
proceeding against the accused. It is observed that in other words, the
sufficiency of grounds would take within its fold the nature of the
evidence recorded by the police or the documents produced before the
court which ex facie disclose that there are suspicious circumstances
against the accused so as to frame a charge against him. It is further
observed that if the Judge comes to a conclusion that there is sufficient
ground to proceed, he will frame a charge under Section 228 CrPC, if
not, he will discharge the accused. It is further observed that while
exercising its judicial mind to the facts of the case in order to determine
whether a case for trial has been made out by the prosecution, it is not
necessary for the court to enter into the pros and cons of the matter or
into a weighing and balancing of evidence and probabilities which is
really the function of the court, after the trial starts.
11.2. In the recent decision of this Court in M.R. Hiremath [State of
Karnataka v. M.R. Hiremath, (2019) 7 SCC 515 : (2019) 3 SCC (Cri)
109 : (2019) 2 SCC (L&S) 380], one of us (D.Y. Chandrachud, J.)
speaking for the Bench has observed and held in para 25 as under :
(SCC p. 526)
"25. The High Court [M.R. Hiremath v. State, 2017 SCC OnLine Kar
4970] ought to have been cognizant of the fact that the trial court was
dealing with an application for discharge under the provisions of
Section 239 CrPC. The parameters which govern the exercise of this
jurisdiction have found expression in several decisions of this Court. It
is a settled principle of law that at the stage of considering an
application for discharge the court must proceed on the assumption
that the material which has been brought on the record by the
prosecution is true and evaluate the material in order to determine
whether the facts emerging from the material, taken on its face value,
disclose the existence of the ingredients necessary to constitute the
offence. In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh
Rajan, (2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC
(L&S) 721], adverting to the earlier decisions on the subject, this Court
held : (SCC pp. 721-22, para 29)
'29. ... At this stage, probative value of the materials has to be gone
into and the court is not expected to go deep into the matter and hold
that the materials would not warrant a conviction. In our opinion, what
needs to be considered is whether there is a ground for presuming that
the offence has been committed and not whether a ground for convicting
the accused has been made out. To put it differently, if the court thinks
that the accused might have committed the offence on the basis of the
materials on record on its probative value, it can frame the charge;
though for conviction, the court has to come to the conclusion that the
accused has committed the offence. The law does not permit a mini trial
at this stage.'"
104. The Hon'ble Apex Court has further dealt with the proper basis for
framing of charge in the case of Onkar Nath Mishra v. State (NCT of
Delhi) wherein at paragraphs 11, 12 and 14 it has been held as under:--
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"11. It is trite that at the stage of framing of charge the court is required
to evaluate the material and documents on record with a view to finding
out if the facts emerging therefrom, taken at their face value, disclosed
the existence of all the ingredients constituting the alleged offence. At
that stage, the court is not expected to go deep into the probative value
of the material on record. What needs to be considered is whether there
is a ground for presuming that the offence has been committed and not
a ground for convicting the accused has been made out. At that stage,
even strong suspicion founded on material which leads the court to form
a presumptive opinion as to the existence of the factual ingredients
constituting the offence alleged would justify the framing of charge
against the accused in respect of the commission of that offence.
12. In State of Karnataka v. L. Muniswamy [(1977) 2 SCC 699 : 1977
SCC (Cri) 404], a three-Judge Bench of this Court had observed that at
the stage of framing the charge, the Court has to apply its mind to the
question whether or not there is any ground for presuming the
commission of the offence by the accused. As framing of charge affects
a person's liberty substantially, need for proper consideration of
material warranting such order was emphasised.
14. In a later decision in State of M.P. v. Mohanlal Soni [(2000) 6 SCC
338 : 2000 SCC (Cri) 1110] this Court, referring to several previous
decisions held that : (SCC p. 342, para 7)
"7. The crystallised judicial view is that at the stage of framing charge,
the court has to prima facie consider whether there is sufficient ground
for proceeding against the accused. The court is not required to
appreciate evidence to conclude whether the materials produced are
sufficient or not for convicting the accused."
105. The Hon'ble Apex Court in the case of Palwinder Singh v. Balvinder
Singh, (2009) 2 SCC (Cri) 850 has been pleased to hold that charges
can also be framed on the basis of strong suspicion. Marshaling and
appreciation of the evidence is not in the domain of the court at that
point of time.
106. Further it is pertinent to mention here that power to discharge an
accused was designed to prevent harassment to an innocent person by
the arduous trial or the ordeal of prosecution. How that intention is to
be achieved is reasonably clear in the section itself. The power has been
entrusted to the Sessions Judge who brings to bear his knowledge and
experience in criminal trials. Besides, he has the assistance of counsel
for the accused and Public Prosecutor. He is required to hear both sides
before framing any charge against the accused or for discharging him.
If the Sessions Judge after hearing the parties frames a charge and also
makes an order in support thereof, the law must be allowed to take its
own course. Self-restraint on the part of the High Court should be the
rule unless there is a glaring injustice which stares the court in the face.
The opinion on any matter may differ depending upon the person who
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views it. There may be as many opinions on a particular matter as there
are courts but it is no ground for the High Court to interdict the trial. It
would be better for the High Court to allow the trial to proceed.
Reference in this regard may be taken from the judgment as rendered
by the Hon'ble Apex Court in Stree Atyachar Virodhi Parishad v. Dilip
Nathumal Chordia, (1989) 1 SCC 715.
107. Further, the difference between the approach with which the Court
should examine the matter in the discharge has been explained by the
Hon'ble Supreme Court in Amit Kapoor v. Ramesh Chander, (2012) 9
SCC 460, in the following words:--
"17. Framing of a charge is an exercise of jurisdiction by the trial court
in terms of Section 228 of the Code, unless the accused is discharged
under Section 227 of the Code. Under both these provisions, the court
is required to consider the "record of the case" and documents
submitted therewith and, after hearing the parties, may
either discharge the accused or where it appears to the court and in its
opinion there is ground for presuming that the accused has committed
an offence, it shall frame the charge. Once the facts and ingredients of
the Section exists, then the court would be right in presuming that there
is ground to proceed against the accused and frame the charge
accordingly. This presumption is not a presumption of law as such. The
satisfaction of the court in relation to the existence of constituents of an
offence and the facts leading to that offence is a sine qua non for
exercise of such jurisdiction. It may even be weaker than a prima facie
case. There is a fine distinction between the language of
Sections 227 and 228 of the Code. Section 227 is the expression of a
definite opinion and judgment of the Court while Section 228 is
tentative. Thus, to say that at the stage of framing of charge, the Court
should form an opinion that the accused is certainly guilty of
committing an offence, is an approach which is impermissible in terms
of Section 228 of the Code.
30. We have already noticed that the legislature in its wisdom has used
the expression "there is ground for presuming that the accused has
committed an offence". This has an inbuilt element of presumption once
the ingredients of an offence with reference to the allegations made are
satisfied, the Court would not doubt the case of the prosecution unduly
and extend its jurisdiction to quash the charge in haste. A Bench of this
Court in State of Maharashtra v. Som Nath Thapa (1996) 4 SCC
659 referred to the meaning of the word "presume" while relying
upon Black's Law Dictionary. It was defined to mean "to believe or
accept upon probable evidence"; "to take as proved until evidence to
the contrary is forthcoming". In other words, the truth of the matter has
to come out when the prosecution evidence is led, the witnesses are
cross-examined by the defence, the incriminating material and evidence
is put to the accused in terms of Section 313 of the Code and then the
accused is provided an opportunity to lead defence, if any. It is only
upon completion of such steps that the trial concludes with the court
forming its final opinion and delivering its judgment. Merely because
there was a civil transaction between the parties would not by itself
alter the status of the allegations constituting the criminal offence.
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108. Thus, it is evident that the law regarding the approach to be adopted by
the court while considering an application for discharge of the accused
persons under Section 227 and approach while framing charges under
Section 228 of the Code, is that while considering an application
for discharge of the accused under Section 227 of the Code, the Court
has to form a definite opinion, upon consideration of the record of the
case and the documents submitted therewith, that there is not sufficient
ground for proceeding against the accused. However, while framing
charges, the Court is not required to form a definite opinion that the
accused is guilty of committing an offence. The truth of the matter will
come out when evidence is led during the trial. Once the facts and
ingredients of the Section exist, the court would presume that there is
ground to proceed against the accused and frame the charge accordingly
and the Court would not doubt the case of the prosecution.
109. In the judgment passed by the Hon'ble Supreme court in the case
of Sajjan Kumar v. CBI, reported in (2010) 9 SCC 368, the Hon'ble
Supreme Court has considered the scope of Sections 227 and 228 CrPC.
The principles which emerged therefrom have been taken note of in para
21 as under:
"21. On consideration of the authorities about the scope of Sections
227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges
under Section 227 CrPC has the undoubted power to sift and weigh the
evidence for the limited purpose of finding out whether or not a prima
facie case against the accused has been made out. The test to determine
prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose grave
suspicion against the accused which has not been properly explained,
the court will be fully justified in framing a charge and proceeding with
the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the
prosecution but has to consider the broad probabilities of the case, the
total effect of the evidence and the documents produced before the
court, any basic infirmities, etc. However, at this stage, there cannot be
a roving enquiry into the pros and cons of the matter and weigh the
evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an
opinion that the accused might have committed offence, it can frame the
charge, though for conviction the conclusion is required to be proved
beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the
material on record cannot be gone into but before framing a charge the
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court must apply its judicial mind on the material placed on record and
must be satisfied that the commission of offence by the accused was
possible.
(vi) At the stage of Sections 227 and 228, the court is required to
evaluate the material and documents on record with a view to find out
if the facts emerging therefrom taken at their face value disclose the
existence of all the ingredients constituting the alleged offence. For this
limited purpose, sift the evidence as it cannot be expected even at that
initial stage to accept all that the prosecution states as gospel truth even
if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion
only, as distinguished from grave suspicion, the trial Judge will be
empowered to discharge the accused and at this stage, he is not to see
whether the trial will end in conviction or acquittal."
In the judgment passed by the Hon'ble Supreme court in the case
of M.E. Shivalingamurthy v. CBI, reported in (2020) 2 SCC 768, the
above principles have been reiterated in para 17, 18, 28 to 31 and the
Hon'ble supreme court has explained as to how the matters of grave
suspicion are to be dealt with. The aforesaid paragraphs of the report are
quoted as under:
"17. This is an area covered by a large body of case law. We refer to a
recent judgment which has referred to the earlier decisions viz. P.
Vijayan v. State of Kerala and discern the following principles:
17.1. If two views are possible and one of them gives rise to suspicion
only as distinguished from grave suspicion, the trial Judge would be
empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the charge at the
instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to find out
whether or not there is sufficient ground for proceeding. Evidence
would consist of the statements recorded by the police or the documents
produced before the Court.
17.4. If the evidence, which the Prosecutor proposes to adduce to prove
the guilt of the accused, even if fully accepted before it is challenged in
cross-examination or rebutted by the defence evidence, if any, "cannot
show that the accused committed offence, then, there will be no
sufficient ground for proceeding with the trial".
17.5. It is open to the accused to explain away the materials giving rise
to the grave suspicion.
17.6. The court has to consider the broad probabilities, the total effect
of the evidence and the documents produced before the court, any basic
infirmities appearing in the case and so on. This, however, would not
entitle the court to make a roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative value of the
material on record cannot be gone into, and the material brought on
record by the prosecution, has to be accepted as true.
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17.8. There must exist some materials for entertaining the strong
suspicion which can form the basis for drawing up a charge and
refusing to discharge the accused.
18. The defence of the accused is not to be looked into at the stage when
the accused seeks to be discharged under Section 227 CrPC (see State
of J&K v. Sudershan Chakkar). The expression, "the record of the
case", used in Section 227 CrPC, is to be understood as the documents
and the articles, if any, produced by the prosecution. The Code does not
give any right to the accused to produce any document at the stage of
framing of the charge. At the stage of framing of the charge, the
submission of the accused is to be confined to the material produced by
the police (see State of Orissa v. Debendra Nath Padhi).
28. It is here that again it becomes necessary that we remind ourselves
of the contours of the jurisdiction under Section 227 CrPC. The
principle established is to take the materials produced by the
prosecution, both in the form of oral statements and also documentary
material, and act upon it without it been subjected to questioning
through cross-examination and everything assumed in favour of the
prosecution, if a scenario emerges where no offence, as alleged, is made
out against the accused, it, undoubtedly, would ensure to the benefit of
the accused warranting the trial court to discharge the accused.
29. It is not open to the accused to rely on the material by way of defence
and persuade the court to discharge him.
30. However, what is the meaning of the expression "materials on the
basis of which grave suspicion is aroused in the mind of the court's",
which is not explained away? Can the accused explain away the
material only with reference to the materials produced by the
prosecution? Can the accused rely upon material which he chooses to
produce at the stage?
31. In view of the decisions of this Court that the accused can only rely
on the materials which are produced by the prosecution, it must be
understood that the grave suspicion, if it is established on the materials,
should be explained away only in terms of the materials made available
by the prosecution. No doubt, the accused may appeal to the broad
probabilities to the case to persuade the court to discharge him."
110. In the case of Asim Shariff v. NIA, (2019) 7 SCC 148, it has been held
by the Hon'ble Apex Court that the words 'not sufficient ground for
proceeding against the accused' clearly show that the Judge is not a
mere post office to frame the charge at the behest of the prosecution, but
has to exercise his judicial mind to the facts of the case in order to
determine whether a case for trial has been made out by the prosecution.
In assessing this fact, it is not necessary for the court to enter into the
pros and cons of the matter or into a weighing and balancing of evidence
and probabilities which is really his function after the trial starts. At the
stage of Section 227, the Judge has merely to sift the evidence in order
to find out whether or not there is sufficient ground for proceeding
against the accused. The sufficiency of ground would take within its fold
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the nature of the evidence recorded by the police or the documents
produced before the court which ex facie disclose that there are
suspicious circumstances against the accused so as to frame a charge
against him.
111. Recently, the Full Bench of the Hon'ble Apex Court in the case
of Ghulam Hassan Beigh v. Mohd. Maqbool Magrey, (2022) 12 SCC
657 has elaborately discussed the issue of framing of charge and has held
in paragraph 27 which reads as under:
"27. Thus from the aforesaid, it is evident that the trial court is enjoined
with the duty to apply its mind at the time of framing of charge 14 and
should not act as a mere post office. The endorsement on the charge-
sheet presented by the police as it is without applying its mind and
without recording brief reasons in support of its opinion is not
countenanced by law. However, the material which is required to be
evaluated by the court at the time of framing charge should be the
material which is produced and relied upon by the prosecution. The
sifting of such material is not to be so meticulous as would render the
exercise a mini trial to find out the guilt or otherwise of the accused. All
that is required at this stage is that the court must be satisfied that the
evidence collected by the prosecution is sufficient to presume that the
accused has committed an offence. Even a strong suspicion would
suffice. Undoubtedly, apart from the material that is placed before the
court by the prosecution in the shape of final report in terms of
Section 173 CrPC, the court may also rely upon any other evidence or
material which is of sterling quality and has direct bearing on the
charge laid before it by the prosecution."
112. Thus, from aforesaid legal propositions it can be safely inferred that if,
upon consideration of the record of the case and the documents submitted
therewith, and after hearing the submissions of the accused and the
prosecution in this behalf, the Judge considers that there is no sufficient
ground for proceeding against the accused, he shall discharge the
accused and record his reasons for doing so and if, after such
consideration and hearing as aforesaid, the Judge is of the opinion that
there is ground for presuming that the accused has committed an offence,
the trial Court shall frame the charge. Therefore, the stage of discharge is
a stage prior to framing of the charge and once the Court rejects
the discharge application, it would proceed for framing of charge. At the
stage of discharge, the Judge has merely to sift and weigh the evidence
in order to find out whether or not there is sufficient ground for
proceeding against the accused and in other words, the sufficiency of
grounds would take within its fold the nature of the evidence recorded
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by the police or the documents produced before the court which ex facie
disclose that there are suspicious circumstances against the accused so as
to frame the charge against him and after that if the Judge comes to a
conclusion that there is sufficient ground to proceed, he will frame a
charge and, if not, he will discharge the accused.
113. While exercising its judicial mind to the facts of the case in order to
determine whether a case for trial has been made out by the prosecution,
it is not necessary for the Court to enter into the pros and cons of the
matter or into a weighing and balancing of evidence and probabilities
which is really the function of the court, after the trial starts. It is
considered view that at this stage of the instant case, the Court was only
required to consider whether a prima facie case has been made out or not
and whether the accused is required to be further tried or not because at
the stage of framing of the charge and / or considering
the discharge application, the mini trial is not permissible.
114. In the backdrop of aforesaid case laws and judicial deduction, this Court
is now proceeding to examine the fact so as to come to the conclusion as
to whether the evidence which has been collected in course of
investigation and has been brought on record, as would be available in
the impugned order prima facie case against the appellant is made out or
not?
115. It needs to refer herein that the learned counsel for respondent NIA has
submitted that the appellant had previously moved before this Court in
Cr. Appeal (DB) No. 119 of 2020 being aggrieved by the order taking
cognizance and issuance of summons to the appellant and at that stage,
the appellant had raised all possible pleas available to him and, thereafter,
all arguments of the appellant were considered in detail and after
considering all aspects of the matter including the materials collected
during investigation, the Court had dismissed the plea of the appellant
and the said order dated 18.01.2022 has attain finality as the SLP
preferred against the said order has already been dismissed by the
Hon'ble Apex Court.
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116. In the aforesaid context we have perused the order dated 18.01.2022 and
admittedly some of the contention which has been raised herein by the
learned counsel for the appellant has already been taken into
consideration. But this is considered view that since the appellate
jurisdiction has been invoked by the present appellant therefore, it is
bounden duty of this Court to consider all the material aspect which has
been raised herein.
117. At this juncture, this Court deems it fit and proper to scrutinize the
evidence collected in course of investigation by the investigating agency
as has been recorded in the charge-sheet which is appended to the instant
appeals.
118. The complicity of the present appellant has been depicted in paragraph
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 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
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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.
119. 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 TPC for smooth functioning of his business. It
has come 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).
120. 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.
121. 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, prima facie
it appears that the present appellant criminally conspired with co-accused
and committed offence under Section 120-B of the Indian Penal Code
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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.
122. Further learned counsel for the appellant has contended that no offence
of conspiracy is made out as Accused/appellant was stationed in Kolkata
and has no relation with day-to-day affair of the Ranchi Office or the
plant. In the aforesaid context, the learned counsel for the appellant has
put his reliance on the judgment rendered by the Hon'ble Apex Court in
the case of CBI vs. K. Narayan Rao (2012)9 SCC 512 more particularly,
paragraph 24 thereof.
123. In this context, it is pertinent to reiterate the settled legal proposition that
in cases of conspiracy to commit a crime, usually it is very difficult for
the prosecution to adduce direct evidence since conspiracy is not an open
affair, therefore, the prosecution has to rely upon evidence pertaining to
the acts of various parties to prove such an agreement of conspiracy on
the basis of circumstantial evidence which can be inferred by necessary
implication. The Supreme Court in plethora of decisions has observed
that for an offence punishable under section 120B of the IPC, the
prosecution need not necessarily prove that the propagators expressly
agree to do or carried to be done an illegal act and such agreement may
be proved by necessary implication to be determined from the
circumstantial evidence brought on record.
124. Further, Offence of criminal conspiracy is complete even though there is
no agreement as to the means by which the purpose is to be
accomplished. It is the unlawful agreement, which is the gravamen of the
crime of conspiracy. The unlawful agreement which amounts to a
conspiracy need not be formal or express, but may be inherent in and
inferred from the circumstances, especially declarations, acts and
conduct of the conspirators. Reference in this regard may be taken from
the judgment rendered by the Hon'ble Apex Court in the case of State of
T.N. through Superintendent of Police CBI/SIT Petitioner v. Nalini
and others; (1999) 5 SCC 253.
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125. In the instant case, it has come in the investigation that the appellant was
in complete knowledge that levy is being paid by their company to TPC.
Further, it has come that the appellant deliberately deleted the e-mails
marked as CC to him, therefore prima facie appears that the appellant
colluded with members of terrorist gang TPC, and others and
abetted/prompted/ 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 through co- accused A-14, A-9 and A-
22 for smooth running of his business as such the contention of the
learned counsel for the appellant is not fit to be accepted.
126. Further, we have gone through paragraph 24 of the said judgment i.e.
CBI vs. K. Narayan Rao (supra) 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.
127. 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.
128. The another question arises herein that whether on the basis of the
aforesaid activities as depicted in paragraph 17.10 of the 2nd
supplementary charge-sheet , will it come under the fold of the terrorist
act as under Section 14 making the appellant 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.
129. As referred herein above that the terrorist act has been defined under
Section 2(k) which has the meaning assigned to Section 15 and the
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expression terrorism and terrorist shall be construed accordingly. We
have gone through the allegation as has been found against the appellant
and find that for smooth running of the business the money has been paid
by the appellant 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
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 appellant 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.
130. The issue of vicarious liability which has been taken also as a ground by
making submission that in absence of making any accusation against the
Adhunik Power there cannot be any accusation in the official capacity
against the appellant.
131. The learned counsel for the NIA, in response thereto, has submitted that
the issue of vicarious liability has already been dealt with by this Court
vide order dated 18.01.2022 passed in Cr. Appeal (DB) No. 119 of 2020
at the time of consideration of the propriety of the order taking
cognizance by framing the specific issue being issue no (v) referred in
paragraph 10 of the ORDER dated 18.01.2022.Since against the order
dated 18.01.2022 a SLP has been preferred before the Hon'ble Apex
Court and the said SLP has been dismissed, as such, there cannot be any
fresh consideration on the said issue at this stage.
132. We have heard the learned counsel for the parties on the aforesaid issue
and in order to consider the same has gone through the order passed by
this Court as to whether the specific issue of vicarious liability has been
taken into consideration by this Court or not and has found therefrom
that specific issue has been formulated being issue no (v).For ready
reference, the said part of the order is being reproduced as under:
"--------
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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 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.
--------
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."
133. It is evident from the aforesaid that the learned counsel for the appellant
has not taken any fresh ground rather reiteration of the ground which had
already been considered by this Court while deciding the aforesaid issue
with the observation that the said issue regarding proving the innocence
by the appellant is to be taken into consideration in course of the trial if
the evidence on this count will be led showing the innocence of the
present appellant regarding his involvement in the commission of crime
pertaining to the offences under UAP Act.
134. 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
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the appellant, however, the appellant 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, therefore the contention of the learned counsel
for the appellant is not fit to be accepted.
135. It has been submitted on behalf of the appellant by referring to
paragraphs of the judgment rendered by the Hon'ble Apex Court in the
case of Sudesh Kedia (supra) 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
since there was no allegation that appellant was receiving any money,
while on the other hand, the appellant is accused of providing money to
the members of TPC.
136. 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 case of rejection of discharge application and,
therefore, in the given fact and the stage, the aforesaid judgment is not
applicable.
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137. 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.
138. In order to verify the contention of the learned counsel for the appellant
about the applicability of the said judgment i.e. Sudesh Kedia (supra) We
have gone through the relevant paragraph of the said judgment , for ready
reference same is being quoted as under:
"13. While considering the grant of bail under Section 43-D(5), 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 the High Court erred in not
granting bail to the appellant for the following reasons:
13.1. A close scrutiny of the material placed before the court would
clearly show that the main accusation against the appellant is that he
paid levy/extortion amount to the terrorist organisation. 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 organisation 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 organisation. It is alleged in the
second supplementary charge-sheet that the appellant paid money to
the members of 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 organisation.
13.2. 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 organisation. 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 CrPC that he was summoned to meet A-14 and the other
members of the organisation 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 organisation.
13.3. 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
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the appellant was receiving any money. On the other hand, the
appellant is accused of providing money to the members of TPC.
14. 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 shall not be influenced by these observations during trial.
15. For the aforementioned reasons, the judgment Sudesh
Kedia v. Union of India1, of the High Court is set aside and the
appellant is directed to be released on bail subject to the satisfaction of
the Special Court. The appeals are allowed, accordingly."
139. It is evident from the aforesaid order that the Supreme Court has taken
note that the money which has been said to be seized is by way of
victimisation of the said appellant since he claimed that he has been
subjected to extortion for the purpose of carrying out his business.
140. The Hon'ble Supreme Court has come out with the prima facie opinion
while considering the aforesaid submission in view of the provision of
Section 43-D(5) of the Act, 1967 that the money which has been
recovered to the tune of Rs 9,95,000 cannot be said to be proceeds of
terrorism.
141. The Hon'ble Supreme Court, based upon the aforesaid observation, has
come to the view in view of the provision of Section 43-D(5) of the Act,
1967 that the allegation against the said appellant appears to be prima
facie untrue, accordingly, he has been directed to be released on bail,
however, in the same para it has been clarified that the observation so
made for the purpose of coming to the conclusion of the case to be prima
facie untrue is 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.
142. This this Court is conscious with the settled position of law that the
Article 141 of the Constitution of India has the effect, in addition to
investing the decisions of the Supreme Court with a binding force, of
creating a constitutional organ whose declaration of law shall be binding
on all courts in the Republic. In the case of Union of India v. Raghubir
Singh 1989 2 SCC 754, the Hon'ble Supreme Court held that "the
doctrine of binding precedent has the merit of promoting a certainty and
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consistency in judicial decisions and enables an organic development of
the law.
143. The Supreme Court at the same time has also emphasised in Sukhwant
Singh v. State of Punjab (1995) 3 SCC 967, that observations from a
judgment of the Supreme Court should not be read in isolation and it is
improper for any court to take out a sentence from the judgment of this
Court divorced from the context in which they are made, for ready
reference the relevant para of the aforesaid judgment is being quoted as
under : (SCC p. 376, para 20)
"20. -- The observations from a judgment of this Court cannot be read
in isolation and divorced from the context in which the same were made
and it is improper for any court to take out a sentence from the judgment
of this Court, divorced from the context in which it was given and treat
such an isolated sentence as the complete enunciation of law by this
Court....."
144. 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 dated 31.05.2023 by which application for discharge
has been rejected and, therefore, according to our considered view, in the
given facts of this case and the prayer made in the instant appeal, 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 aforesaid judgment has made it clear that these findings are
restricted only for the purpose of grant of bail to the said Appellant and
the trial court shall not be influenced by these observations during trial.
145. Thus, it is further evident that what we have observed hereinabove, the
same is also fortified by the observation made by the 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.
146. The argument has been advanced on the issue of further investigation by
the learned counsel appearing for the appellant that the complicity of the
appellant in the instant case has surfaced in the second supplementary
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charge-sheet and in the first charge-sheet the names of the appellants do
not transpire therein.
147. Learned counsel for the NIA has submitted that the TPC 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 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. Further, in 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 which cannot
be said to suffer from infirmity. 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 already been dealt with by Hon'ble Apex
Court in Pradeep Ram v. State of Jharkhand and Another [2019 SCC
OnLine SC 825.
148. 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, 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, in exercise of power conferred under Sub
Section (5) of the Section 6 read with Section 8 of the NIA Act, 2008 suo
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motu directed the NIA to take up the investigation of the case registered
vide Tandwa P.S. Case No. 02 of 2016.
149. 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.
150. 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. The further investigation has
continued after submission of the first charge-sheet submitted by the NIA
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-
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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) .
151. The Hon'ble Apex Court [Pradeep Ram v. State of Jharkhand and
Another (Supra)] 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 the NIA to carry on further investigation in the
facts of the present case".
152. 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.
153. Thus, in the present case, initial chargesheet was submitted keeping the
investigation pending. Once the charge sheet is submitted under Section
173 (2) of the Cr. P.C. keeping the investigation pending, there is no
requirement for the investigating agency to seek permission of the court,
either for the purposes of undertaking further investigation or for the
purposes of transferring the investigation to N.I.A. in terms of Section 6
of N.I.A. Act as discussed herein above. Section 6 of the N.I.A. Act does
not require any prior order of the court for the purposes of handing over
the investigation to N.I.A. Further, the ratio of the judgement in the case
of Vinay Tyagi (supra) does not apply to the facts and circumstances of
this case as investigation was continued while submitting the initial
chargesheet. In that view of the matter, we are of the considered view
that the NIA has not exceeded its jurisdiction in conducting further
investigation.
154. It needs to refer herein that the appellate jurisdiction as stipulated in the
Section 21(4) of the NIA Act 2008 has been invoked herein and at this
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juncture this Court is primarily concerned with the issue of rejection of
discharge application as well as order of framing of charge.
155. In the aforesaid context we are adverting to the impugned orders so as to
come to the conclusion as to whether the learned special court has taken
into consideration the evidence which has been collected in course of
investigation by the prosecuting agency, as per the spirit of the principle
of discharge as enshrined in statute.
156. It is evident from the perusal of the impugned order dated 31.05.2023
that in order to access the alleged culpability of the present appellant, the
trial court has referred para 17.10 of the second supplementary
chargesheet wherein it has been mentioned that the present appellant was
the Proprietor/ Managing Director of M/s Adhunik Power and Natural
Resources Jharkhand, on his direction payment was made through RTGS
mode to coal transporters against work orders. Amount at the rate of
Rs.200/- PMT was given to the transporters for the purpose of paying to
TPC operatives and village committee for smooth functioning of the
business concern for promoting his coal trade business connived with the
co-accused persons namely Ajay Singh(A22), Sanjay Jain A-9, Akraman
Ji(A14), Bindeshwar Ganjhu @ Bindu Ganjhu(A5) and Anischyay
Ganjhu A-16 and abetted in raising of funds for the terrorist gang.
157. The learned special court has further found that the documentary and oral
evidences collected during investigation by the NIA suggest that the
appellant was paying levy to the members of the various groups like
village committee members, CCL Weigh bridge operators, TPC members
such as Akraman Jee (A14), Bindu Ganjhu (A5) and Premvikash @
Mantu Singh (A11) and was involved with co-accused persons namely
Sanjay Jain (A-9) and Ajay Kumar @ Ajay Singh(A22) in the
commission of instant crime and conspiracy.
158. Further the special court has also taken into consideration the e-mail
dated 03.04.2017 and 30.04.2017 recovered at the instance of charge-
sheeted arrested accused Sanjay Jain(A9) and the documents produced
by witness Rakesh Jain reveal that Mahesh Kumar Agarwal (A18) was
in full knowledge of levy being paid to the CCL and village committee.
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It has also come during investigation by NIA that Mahesh Agarwal (A18)
deliberately deleted e-mail marked as CC to him to cause disappearance
of evidence of offence. On the basis of the aforesaid finding the learned
trial court has found that there is prosecutable evidence against the
appellant Mahesh Agarwal which is supported by documentary as well
as oral evidence of the witnesses of the chargesheet.
159. It is evident from the impugned order that the court has also taken into
consideration the statement of protected witnesses particularly the
statement of protected witness B who met Mahesh Kumar Agarwal (A-
18) for seeking transporting work for his transport company to whom
Mahesh Agarwal directed to meet his general manager Sanjay Jain (A9),
accordingly, the witness met Sanjay Jain(A9) who put up proposal before
him that the witness would return Rs.200/- PMT in cash to Sanjay
Jain(A-9)from transportation charge for paying levy in the name of
village committee.
160. Further the learned trial court has also taken into consideration the
statement of protected witness D who has explained the manner in which
the money was collected from truck owners and paid to the TPC. His
statement was recorded under section 164 Cr.P.C which proves that
Sanjay Jain(A-9) General Manager of APNRL used to pay levy to
Akramanji(A1-4) the regional commander of TPC on behalf of Mahesh
Kumar Agarwal (A18) managing director of APNRL.
161. In the impugned order the special court has referred the statement of
Protected Witness 'E' by which it is established that Sanjay Jain (A 9)
General Manager of APNRL used to attend meeting called by Akraman
Ji (A14).
162. The learned trial court has observed that the petitioner never met TPC
operatives personally. But there is direct evidence that e-mail dated
03.04.2017 and 30.04.2017 recovered at the instance of charge-sheeted
accused A9 and document produced by witness Rakesh Jain revealed that
petitioner Mahesh Agarwal was in full knowledge of levy being paid to
CCL. The e-mail dated 01.05.2017, 02.05.2017, 16.05.2017, 21.05.2017
produced by witness Rakesh Jain which were sent by employees of
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Adhunik Power and Natural resources to Raja Patni M/s National
Parivahan transporters for Adhunik power stating that there is pending
payments which was supposed to be paid to the committee and due to
non-payment of levy and charges regular phone calls were made by
Akraman Ji to Ajay kumar A-22 to pay pending freight charges to
transporters to stop lifting of coal.
163. The learned trial court has found that the Email sent by Sanjay Jain A-9
to transporters and its CC was forwarded to Mahesh Agarwal and others
also establishes that petitioner Mahesh Agarwal who was managing
director and Chief Financial officer was in full control of financial
transaction which was going on and petitioner. Mahesh Agarwal
deliberately deleted Emails marked as CC to him for causing
disappearance of evidence.
164. Accordingly, on the basis of the aforesaid finding, vide order dated
31.05.2023 the special court has rejected the application for discharge
which has been filed by the present appellant.
165. Further, it needs to refer herein that the plea for discharge of Sanjay Jain,
the co-accused, had already been considered by co-ordinate Bench of this
Court in Cr. Appeal (DB) No. 859 of 2019 (Annexure C of the Counter
Affidavit)) and the same was dismissed vide order dated 31st January,
2022, wherein it has been observed that whether the acts attributed to the
appellant were voluntary or involuntary is a question of fact which can
be decided only when an evidence is led during trial.
166. This Court has also considered the appeal arising out of rejection of
discharge application of the other co-accused Ajit Kumar Thakur in Cr.
Appeal (DB) No. 367 of 2020, wherein the plea as to whether the said
accused had work in the interest of his company, namely, Central
Coalfields Limited or not, was considered by this Court and after
considering all aspects of the matter including the power of NIA to make
further investigation, the issue as to whether a formal declaration of TPC
as a terrorist organization is required for attracting offences under
Sections 15, 17 or 18 of the Unlawful Activities (Prevention) Act, 1967
and the role of the said accused, has held that the Court below while
2025:JHHC:11853-DB
considering the discharge application has considered all materials
collected during investigation which were supported by the statements of
the witnesses indicating close association of the said appellant with
terrorist gang in the act of extortion of money as well as conspiracy, and
accordingly dismissed the said appeal by a judgment dated 24.11.2021
(Annexure D of the Counter Affidavit).
167. On the basis of discussion made hereinabove, this Court is of the
considered view that the impugned order passed by the learned special
court is well reasoned order and no ground as such has been pointed out
by the learned counsel appearing on behalf of the appellant calling for
any interference in the impugned order. The impugned order refers to the
materials collected against the appellant during investigation supported
by the statement of the witnesses prima facie indicating the culpability
of the present appellant in the commission of alleged offence.
168. The learned special court has found sufficient material to proceed against
the appellant by framing charge against him. Further, it is not in dispute
that in the instant case the trial has commenced and some of the witnesses
have already been examined.
169. At this juncture, it needs to refer herein that recently the Hon'ble Apex
Court in the case of Directorate of Revenue intelligence vs Raj kumar
Arora & Ors. (Criminal Appeal No. 1319 of 2013) has observed that
once charges have been framed by the Trial Court in exercise of the
powers under Section 228 Cr.P.C., the accused cannot thereafter be
discharged. For ready reference the relent paragraph is being quoted as
under:
154. We are in agreement with the view that once charges have been framed by
the Trial Court in exercise of the powers under Section 228 CrPC, the accused
cannot thereafter be discharged, be it through an exercise of the powers under
Sections 227 or 216 CrPC. It is reiterated that the language of Section 216 CrPC
provides only for the addition and alteration of charge(s) and not for the deletion
or discharge of an accused. If the Legislature had intended to empower the Trial
Court with the power to delete a charge at that stage, the same would have been
expressly and unambiguously stated. Therefore, at such a stage of the trial, the
accused must necessarily either be convicted or acquitted of the charges that
were so framed against him. No shortcuts must be allowed.
164. We direct the Registry to send one copy each of this judgment to all the High
Courts.
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170. For the foregoing reasons, having regard to facts and circumstances, as
has been analysed hereinabove, the appellant failed to make out a special
case for exercise of power for discharge, as such, no interference is
required to interfere with the order dated 31.05.2023 by which
application for discharge filed by the appellant has been rejected by the
trial court.
171. In view of the above facts, reasons and analysis and considering the
principles of discharge as well as framing of charge which have been
discussed hereinabove in the preceding paragraphs and also taking note
of the alleged culpability of the appellant and further taking into
consideration that charges under different head have already been framed
against the appellant and trial in the instant case has commenced, this
Court is of the view that there is no infirmity in the impugned order dated
31.05.2023 to warrant interference by this Court, accordingly the instant
appeal being Cr. Appeal (DB) 997 of 2023 is hereby dismissed.
172. In consequences of dismissal of Cr. Appeal (DB) 997 of 2023 the Cr.
Appeal (DB) 1381 of 2023 by which framing of charge has been assailed,
is also hereby dismissed.
173. Before parting with the order, it is made clear that the findings so
recorded at by this Court are restricted only for the purpose of dealing
with the matter of discharge and order framing charge, as such, the trial
Court will not be prejudiced by any of the observations so recorded by
this Court during trial.
174. Pending Interlocutory Application(s), if any, stands disposed of.
(Sujit Narayan Prasad, J.)
I agree,
(Pradeep Kumar Srivastava, J.) (Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi
Dated: 22/04/2025
Saurabh /A.F.R.
