Manipur High Court
Shri L. Tarpon Singh (Luwangthem) Aged ... vs Union Of India Represented By ... on 21 March, 2025
Digitally signed by
KHOIROM KHOIROM
BIPINCHAND BIPINCHANDRA SINGH
Date: 2025.03.21
IN THE HIGH COURT OF MANIPUR
RA SINGH 14:29:23 +05'30' AT IMPHAL
CRIL. PETN. No. 14 of 2021
Shri L. Tarpon Singh (Luwangthem) aged about 59 years S/o
(L) L. Gulamjat Singh of Keishampat Thokchom Leikai, P.O &
P.S. & District Imphal West, Manipur- 795001.
.... Petitioner
- Versus -
Union of India represented by Investigation Officer, Central
Bureau of Investigation SCB, Kolkata. CGO Complex, 2nd
Avenue, DF Block, Sector 1, Bidhannagar, Kolkata, West Bengal
700064.
.... Respondent
BEFORE
HON'BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU
For the petitioner : Mr. Serto T. Kom, Advocate
For the respondent : Mr. W. Darakishwor, Sr. PCCG
Date of hearing : 26.09.2024
Date of Judgment &
Order : 21.03.2025
CRIL. PETN. No. 14 of 2021 Page 1
JUDGMENT & ORDER
(CAV)
[1] Heard Mr. Serto T. Kom, learned counsel appearing for the
petitioner through VC and Mr. W. Darakishwor, learned Sr. PCCG appearing
for the respondent at length.
[2] The present petition has been filed under Section 482 of CrPC,
1973 with the following prayer:
(i) Quash the Criminal Proceeding taken up against the
petitioner/accused in Special Trial Case No. 100 of 2018
pending before the Special Judge (ND&PS) (FTC)
Manipur, with Ref: Special Trial (CBI) Case No. 12 of
2016, Ref: Case No. RC-7/5/2013-Kol. U/S 21/25A/29/32
of the ND & PS Act and U/s 120 (B), 420, 468, 471 and
506 IPC corresponding to FIR No. 11 (1) 2013 SJM PS
U/s 9A/25A/29 of the ND & PS Act and discharge the
petitioner/accused from the said Criminal Proceedings.
(ii) Pass any other appropriate order or orders deem fit for
the ends of justice.
[3] The brief facts of the cases are that basing on the
complaint/report about the information that a huge quantity of illegal
contraband drugs has been transported from Kolkata to Imphal by Deccan
Cargo, dated 11.01.2013 made by one, SI E. Ajit Singh of Special
Intelligence Unit (SIU), Imphal West, a Special Intelligence Unit team under
the strict supervision of Inspector K. Ranjit, in-charge, Special Intelligence
CRIL. PETN. No. 14 of 2021 Page 2
Unit rushed to Imphal Airpot and conducted search at the Cargo unloading
area of the Airport.
[4] While searching, the team found seven carton boxes covered
with white coloured polybags unattended at the Cargo unloading area of the
Imphal Airport as the said cartoon boxes were suspected to be containing
illegal contraband drugs, the team tried to establish the ownership of the
said seven carton boxes. The carton boxes were marked as 'A', 'B', 'C', 'D',
'E', 'F' & 'G' and seized at 6:10 pm of 11.01.2013 by preparing a formal
seizure list on the spot and carried the seized items to the office of SIU/IW
at Reserve Line, I/W.
[5] Immediately, a prayer was submitted to the District Magistrate
seeking permission to open the carton boxes in presence of the Executive
Magistrate, accordingly, Shri L. Geetchandra Singh, Executive Magistrate,
Imphal West District was deputed by the District Magistrate, Imphal West as
independent witness for tasting of the said seized items. In presence of the
Executive Magistrate and a witness at Police Reserve Line, Imphal West, the
following items were contained/seized in the seven carton boxes:
(i) Carton box marked as 'A' contain 6450 (six thousand
four hundred and fifty) strips of Robocoff tablets and
50 packets of Baba 120 premium Chewing tobacco.
(ii) Carton box marked as 'B' contain 6450 (six thousand
four hundred and fifty) strips of Robocoff tablets and
120 packets of Baba 120 premium Chewing tobacco.
CRIL. PETN. No. 14 of 2021 Page 3
(iii) Carton box marked as 'C' contain 6450 (six thousand
four hundred and fifty) strips of Robocoff tablets and
80 packets of Baba 120 premium Chewing tobacco.
(iv) Carton box marked as 'D' contain 6450 (six thousand
four hundred and fifty) strips of Robocoff tablets.
(v) Carton box marked as 'E' contain 6450 (six thousand
four hundred and fifty) strips of Robocoff tablets and
180 packets of Baba 120 premium Chewing tobacco.
(vi) Carton box marked as 'F' contain 5470(five thousand
four hundred and seventy) strips of Seafied tablets and
200 packets of Baba 120 premium Chewing tobacco.
(v) Carton box marked as 'G' contain 2680 (two thousand
six hundred and eighty) strips of Respified tablets.
Accordingly, the illegal items were seized on 12.01.2013 at
3:20 p.m. and FIR No. 11(01)2013 SJMPS was registered by Singjamei Police
Station.
[6] The learned counsel for the petitioner submits that the above
mentioned FIR case was later transferred to Central Bureau of Investigation
(CBI) for further investigation vide Notification dated 06.03.2013 issued by
Home Department Govt. of Manipur read with notification dated 11.07.2013
issued by the Govt. of India, Ministry of Personnel Public Grievance and
Pensions (Deptt. of Personnel and Training) and an FIR No. RC7/S/2013 was
registered and the same was investigated by the CBI, SCB, Kolkata.
CRIL. PETN. No. 14 of 2021 Page 4
[7] It is also submitted that upon completion of the said FIR case,
Charge sheet was submitted before the Special Court (ND & PS) Manipur on
16.04.2016 by the I.O. of the CB I, SCB, Kolkata.
Relevant portion of the charge sheet is reproduced herein
below;
"The above facts, circumstances and evidences established that Shri
Rajneesh Kumar (A-1), in criminal conspiracy with Shri Ramveer
Tyagi (A-2), Shri Henry Okram (A-3) and Shri S. Argus Singh (A-4),
fraudulently brought pseudoephedrine tablets into Manipur by flight
which landed at Imphal Airport.
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...............................................................................................................
I, therefore submits this Charge Sheet against Rajneesh
Kumar (A-1), Shri Ramveer Tyagi (A-2), Shri Henry Okram (A-3) and
Shri Sepam Argus Singh (A-4) U/s 21/25A/29/32 of ND&PS Act,
1985 r/w Sections 120B/ 420/ 468/ 471/ 506 IPC, for them to stand
trial before this Ld. Court for the commission of the offences as
aforementioned.
It is there, prayed that this Hon'ble Court may be pleased to
take cognizance of the aforesaid offences and issue necessary
processes for the appearance of the accused persons for facing their
trial. The Ld. Court may also be pleased to allow the prosecution to
adduce any additional evidence, as and when available."
Further, it is submitted that the petitioner was not made an
accused in the above mentioned Charge sheet.
[8] It is also submitted that by an order dated 10.03.2017 passed
in Cril. Misc. Case No. 104/2016/3/2017 by the Special Court (ND & PS),
Manipur at Imphal took cognizance against the petitioner u/s 25A, 29 of the
ND & PS Act r/w Section 120(B), 420, 468, 471 and 506 IPC by exercising
powers conferred u/s 193 of CrPC and issued notice for appearance on the
CRIL. PETN. No. 14 of 2021 Page 5
ground that upon perusal of statement of witnesses recorded u/s 161 & 164
CrPC, his complicity in the crime comes to light.
Relevant portion of the order dated 10.03.2017 is reproduced
hereunder;
"10. Having heard the ld. counsel for both sides and on perusal of
the statement of the witnesses recorded u/s 161 and 164 Cr. Р.С.
including interrogatory statements of the accused Nos. 1 to 4 which
were not available at the time of filing the charge sheet and further in
the light of the law laid down by the Apex Court in the case of Kishun
Singh & Ors. Vs State of Bihar reported as (1993) 2 SCC16 Para 16 I
hold that there would be no bar while taking cognizance of offence
against Shri Tarpon Singh who was not named in the charge sheet
since his complicity in the crime comes to light from the materials
available on record. The decision in the Kishun Singh's case (supra)
has been re- affirmed by a Constitution Bench of the Apex Court in
Dharam Pal & Ors Vs. State of Haryana & Anr. reported in 2013 Cril.
L.J. 3900 and it is been held in Para 28, 30 and 31 as follows:
"28. In that view of the matter, we have no hesitation in
agreeing with the views expressed in Kishun Singh's case
(supra) that the Session Courts has jurisdiction on committal
of a case to it, to take cognizance of the offences of the
persons not named as offenders but whose complicity in the
case would be evident from the materials available on record.
Hence, even without recording evidence, upon committal
under Section 209, the Session Judge may summon those
persons shown in column 2 of the police report to stand trial
along with those already named therein.
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30. The Reference to the effect as to whether the decision in
Ranjit Singh's case (supra) was correct or not in Kishun
Singh's case (supra), is answered by holding that the decision
in Kishun Singh's case was the correct decision and the
learned Session Judge, acting as a Court of original
jurisdiction, could issue summons under Section 193 on the
basis of the records transmitted to him as a result of the
committal order passed by the learned Magistrate.
31. Consequent upon our aforesaid decision, the view taken
by the Referring Court is accepted and it is held that the
decision in the case of Kishun Singh vs. State of Bihar and
not the decision in Ranjit Singh vs. State of Punjab lays down
the law correctly in respect of the powers of the Session Court
after committal of the case to it by the learned Magistrate
under Section 209 Cr.P.C."
CRIL. PETN. No. 14 of 2021 Page 6
12. It would be pertinent to note that if no cognizance is taken
against Shri Tarpon Singh who has not been arrayed as accused nor
cited as witness, it will not be fair on the part of this Court to frame
charge against the accused persons at this moment. Non-mentioning
of Shri Tarpon Singh either as accused or witness would be a serious
omission on the part of CBI for which this Court cannot be a mute
spectator and has to intervene in order to avoid miscarriage of
justice. It would be the duty of the Court to find out the real culprits
apart from those sent up for trial by the investigating agency on the
basis of materials available on record. Thus, exercising powers
conferred under Section 193 of Cr.P.C., cognizance is also taken
against Shri Tarpon Singh under Section 25A, 29 of the NDPS Act
read with Sec. 120(b), 420, 468, 471 and 506 IPC. Accordingly, issue
notice to Shri Tarpon Singh returnable by 11-4-2017 for appearance
and further proceedings."
Further, it is also submitted that the Ld. Trial Court did not
exactly mention what actually are the allegation against the petitioner in the
said statement of the witnesses U/s 161 and 164 CrPC, the
submission/allegation made against the petitioner is that he has made a
phone call to K. Ranjit Singh who at that time was an Inspector of Manipur
Police heading the Special Intelligence Unit on 11.01.2013 at Imphal Airport.
It is to mention that Shri K. Ranjit Singh, in-charge of the SIU
was transferred on the same day and the same SIU was abolished/
disbanded on 15.01.2013 without giving any reason. Statement of (i) Shri K.
Ranjit Singh, Inspector Manipur Police, (ii) Shri Th. Gunachandra Singh, ASI,
(iii) Shri Amitabh Singh Arabam, SI were recorded u/s 161 and 164 of CrPC.
In the statement of PW No. 1 (Shri K. Ranjit Singh), it is stated
that the petitioner has made a phone call to him through his mobile No.
9856089388 but he didn't respond the alleged phone calls from the
petitioner.
CRIL. PETN. No. 14 of 2021 Page 7
In the statement of PW No. 5 (Th. Gunachandra), it is stated
that one Shri Amitabh Singh a police Officer on duty, received one phone call
from the petitioner (L. Tarpon) and another person (O. Henry), not to touch
the cartons and leave the Airport immediately however, he has stated that
he had never talked with the petitioner in his life and he doesn't know the
voice of the petitioner.
It is further submitted that though Shri Thokchom
Gunachandra Singh stated that Shri Amitabh Singh received phone call from
the petitioner (L. Tarpon) and another person (O. Henry), not to touch the
cartons and leave the Airport immediately yet Shri Amitabh Singh Arambam
in his statement made u/s 161 CrPC does not make any allegation against
the petitioner.
[9] Thereafter, on 22.05.2017, after hearing the parties the Ld.
Special Court (ND&PS), Manipur in Special Trial (CBI) Case No. 27 of 2016
rejected the prayer for not framing charge against the accused persons and
to discharge them from the liability of the case and framed charges against
the accused/petitioner and Shri Henry Okram.
Relevant portion of the order dated 22.05.2017 is reproduced
hereunder;
"That, you on 11.01.2013 at about 2.45 p.m. you were being a part
of the racket of trafficking illicit drugs by intimidating the Police
Officer (SIU) on duty at Tullihal Airport Imphal not to seize the
Pseudoephedrine tablets which were carrying on from Kolkata to
Imphal by Deccan Cargo Flight in contravention of Sec. 8(C) of the
NDPS Act and the Rules framed there under and thereby committed
an offence punishable u/s 25A, 32, 506 of the said Act and within the
cognizance of this Court."
CRIL. PETN. No. 14 of 2021 Page 8
It is further submitted by the learned counsel for the petitioner
that the investigating agency could not find any materials to support the
above mentioned allegations of phone calls against the petitioner except
mentioning an alleged mobile No. 9856089388 allegedly belonging to the
petitioner and mobile No. 857517091 and 8575967818 allegedly belonging to
Shri Kangjam Ranjit Singh (Police Officer) both of which are unconfirmed by
material on record. But, unfortunately the Trial Court has framed charges
against the petitioner only on the allegation/ground that on the said day i.e.
11.01.2013 when the police were to seized the contraband drugs, the
petitioner made a phone to Shri Kangjam Ranjit Singh of the Special
Intelligence Unit of Imphal West and Shri Amitabh Singh Arambam an SI
(part of the said SIU).
[10] Learned counsel for the petitioner further submits that there
are no materials to confirm the owners/users of the alleged mobile numbers
and there are also no materials to confirm the alleged calls from the
petitioner to Shri Kangjam Ranjit Singh on 11.01.2013. Even if the alleged
calls were also received, it only creates a mere suspicion but not a grave
suspicion for Trial of the petitioner and as such no prima facie case is
established against the petitioner for a Criminal Proceedings to continue
against the petitioner and prayed to quash the Criminal Proceeding taken up
against him on the following ground;
CRIL. PETN. No. 14 of 2021 Page 9
i. No Prima Facie case is made out against the
petitioner/accused;
ii. Materials on record of the case even if unrebutted does
not make a conviction of the petitioner/accused
reasonably possible;
iii. No legal evidence to prove the charge against the
petitioner;
iv. To prevent abuse of the process of the Court and to
secure the ends of Justice;
v. To avoid wastage of Public time when Prima Facie case
not disclosed against the petitioner;
vi. To save the accused from the avoidable harassment and
expenditure;
vii. The respondent failed to comply with sub-sec (2) of sec
52 A of NDPS Act.
In this regard the learned counsel for the petitioner submits
that in a catena of cases, the Hon'ble Supreme Court has held that the
procedures mandated u/s 52 A of the NDPS are to be complied and non-
compliance of the same vitiate the trial as the compliance of the said
procedure are held to be primary evidence in the trial of NDPS related cases.
[11] Mr. W. Darakishwor, learned Sr. PCCG appearing for the
respondent submits that affidavit-in-opposition has been filed, wherein it has
been mentioned to dismiss the Criminal Petition filed by the petitioner for
quashing the Criminal Proceeding taken up against him in Special Trial Case
No. 100 of 2018 pending before the Special Judge (ND&PS) (FTC) Manipur,
with Ref: Special Trial (CBI) Case No. 27 of 2016, Ref: Case No. RC-
CRIL. PETN. No. 14 of 2021 Page 10
7/5/2013-Kol. U/s 21/25A/29/32 of the ND & PS Act and u/s 120 (B), 420,
468, 471 and 506 IPC corresponding to FIR No. 11(1) 2013 SJM PS U/s
9A/25A/29 of the ND&PS Act and discharge the petitioner/accused from the
said criminal proceeding.
It is further submitted that;
(a) During the cross examination by the defense Counsel against
Shri Kangjam Ranjit Singh, dated 23.06.2017 before the Trial
Court in relation to ST. No.27/2016/207/16 as P.W. No.1, he
stated that while giving statement u/s 161 CrPC before the IO
on that day, the particulars of Mr. Tarpon (accused/petitioner)
and also his mobile No. bearing No. 9856089388 were
mentioned by him. But, he does not know whether the said
particulars were recorded by the IO or not. Moreover, the
present petitioner was the close side of the then Hon'ble Chief
Minister of Manipur who had threatened Shri Kangjam Ranjit
Singh, Inspector of Manipur Police to conceal about the calls
made to him by the present petitioner before the IO. It is also
revealed from the deposition of Shri Kangjam Ranjit Singh
before the Ld. Judge, Special Court (ND&PS), Manipur that on
17.01.2013 after the incident occurred at about 9.30 pm some
unknown persons came near the entrance gate of his residence
at Malom and made open fire and fled away. He made a
complaint to the Nambol P.S. but no such registration or
CRIL. PETN. No. 14 of 2021 Page 11
general diary entry was done in the concerned Police station. It
is also pertinent to mention that Shri Ranjit, Inspector in
Charge of the Special Investigation Unit, which had caught hold
of the consignment on 11.01.2013 was transferred from SIU on
the same day i.e. 11.01.2013 vide Order No. 1/1C-4/RO/2013
dt. 11.01.2013 of Shri N. Herojit Singh, MPS, Addl.
Superintendent of Police (LS) Imphal West District, Manipur as
the SP was on leave. Although Manipur has been suffering from
the menace of narcotics drugs, SIU was disbanded on
15.01.2013 in spite of the good work done by the SIU. Further,
no reason was given for disbanding the SIU. The Note Sheet
showing the transfer of Shri Ranjit Singh that has been seized
from Manipur Police has shown no reason for his transfer.
Moreover, immediately after the drugs were seized in this case
by the Special Investigation Unit of Imphal West District, this
Special Investigation Unit was abolished with immediate effect
and all the officers and men attached to this Unit from different
PSs/Branches were instructed to report to their places of
original posting immediately. Further, it is to mention that Shri
Konsam Jayanta Singh, the then SP of Imphal west stated that
he had disbanded the SIU on the instruction of his Superior
Officers and some Ministers which he did not want to disclose
their identities. From the above facts, the case is fully
CRIL. PETN. No. 14 of 2021 Page 12
corroborated with the accused/petitioner who is seeking for
quashing of the Criminal proceeding taken against him.
(b) The statement of Shri Kangjam Ranjit Singh made in his
deposition dated 23.06.2017 before the Trial Court in relation
to ST. No. 27/2016/207/16 as PW No. 1 during cross
examination is reproduced herewith:
"It is also true that I did not respond to the alleged phone
calls from Mr. Tarpon. It is true that I never mentioned the mobile
No. of Shri Tarpon Singh while I deposed my statement before the
Ld. JMIC, Bidhannager due to some threats to my life. It is true that I
am disclosing the alleged mobile No. of Mr. Tarpon Singh before this
Ld. Court even if I am still stuck with threat to my life. It is true that
due to threat in my life I did not disclose the name of the powerful
persons who were the owners of the seized illegal drugs while
recording my statement U/s 161 CrPC and 164 CrPC. I have every
suspicion that the owners of the said illegal drugs belonged to Mr.
Henry and Mr. Tarpon. I deny the suggestion that I never received
any mobile phone call from Mr. Tarpon at any point of time
regarding the present case. I also deny the suggestion that I
intentionally mentioned the name of Tarpon Singh to indict him in
the present case due to some personal reasons. I deny the
suggestion that Mr. Tarpon Singh is not involved in the present
case."
From the above deposition of Shri Kangjam Ranjit Singh
during cross examination by the defense counsel, it clearly
showed that he made a conversation with Mr. Tarpon Singh
through phone and had not given any comment/reply/response
to the instructions by Mr. Tarpon during the conversation.
(c) Since the witness Shri Amitabh Singh Arambam had fear of
threat from Mr. Tarpon (accused/petitioner) he had not made
any allegation against the present accused/petitioner. It is also
mentioned in his statement u/s 161 CrPC that he had received
a few phone calls in his mobile from different persons at the
CRIL. PETN. No. 14 of 2021 Page 13
time of the incident asking him to go away from the Airport. He
further stated that those persons are really influential and he
could not divulge the name of the persons for if he divulge the
names, there would be threat on the life of his family and
himself.
(d) There is ample evidence in support of the aforementioned
allegations made against the petitioner.
(e) The accused/petitioner was not charge-sheeted by the
Investigative Agency, the CBI but the Special Court (ND&PS),
Manipur at Imphal on its own motion from the available prima
facie evidence framed the charges against the present
accused/petitioner on 22/05/2017 exercising the special
discretionary powers conferred to the Court u/s 319 of the
CrPC after taking into the evidences tendered in the course of
the trial wherein the involvement or complicity of the
accused/petitioner, though not named by the investigating
agency, has surfaced which necessitates the exercise of the
discretionary power conferred by Section 319 of the CrPC.
Moreover, once cognizance of an offence is taken, it
becomes the duty of the Court to find out who the offenders
really are and if the Court finds that apart from the persons
sent up by the Police, some other persons are involved, it is the
duty of the Court to proceed against those persons by
summoning them because the summoning of the additional
CRIL. PETN. No. 14 of 2021 Page 14
accused is part of the proceeding initiated by the taking
cognizance of an offence. The Special Court (ND&PS), Manipur
charged the present accused/petitioner after prima facie case
was made out against the accused/petitioner. It relies upon the
case of Kishan Singh and Ors. vs .State of Bihar on 11
January, 1993@ para 2.02 and Jogendra Yadav & Ors. Vs.
State of Bihar & Anr. [Criminal Appeal No. 343 of 2012].
(f) After a long period of more than 4(four) years of gap as well as
the trial is under the stage of examining Prosecution evidence,
the accused/petitioner freshly filed the application u/s 482 of
the Cr.PC for quashing the Criminal proceedings taken against
him in Special Trial Case No. 100 of 2018 pending before the
Special Judge (ND&PS)(FTC) Manipur, with Ref: Special Trial
(CBI) No.27 of 2016 so as to delay the present trial proceeding.
Mention is also made here that the accused/petitioner is
also one of the accused in the Special Trial Case No. 100 of
2018 which is being vigorously monitored by the High Court of
Manipur in PIL No. 38 of 2020 (Re- monitoring of Criminal
Cases against MPs/MLAs Vs. State of Manipur and & 7 Ors).
As per the direction of the High Court, the present trial case is
treated as top priority by the Hon'ble Special Judge (ND&PS)
(FTC) Manipur and the trial of the case is in full swing on day-
to-day basis. Moreover, the suo-moto PIL 38 of 2020 pending
CRIL. PETN. No. 14 of 2021 Page 15
before the High Court of Manipur has been taken up as
directed by the Hon'ble Supreme Court of India in WP.(C) No.
699 of 2016 titled Ashwini Kumar Upadhyay & Ors. Vs. Union
of India & Ors.
It is also submitted that, the case status of the Special
Trial Case No. 100 of 2018 has been reported before the
Hon'ble High Court of Manipur for every hearing till date. At
present, out of 107 listed prosecution witnesses, so far, 66
witnesses have been examined-in-chief and cross-examined
and 6 prosecution witnesses reported dead. The remaining
prosecution witnesses are all from outside the state of Manipur
and advance steps have been taken to summon the remaining
witnesses for speedy proceedings of the case. If not for the
ongoing Covid-19 pandemic, the trial of the case would have
been completed.
(g) The then Government in power headed by Okram Ibobi Singh,
who was a very close friend of the present accused/petitioner,
transferred the Inspector in-Charge of the Special Investigation
Unit (SIU), Kangjam Ranjit Singh on the same day the drugs
were seized i.e. 11/01/2013 and the same SIU was disbanded
without giving any reason on 15/01/2013. This showed the
malafide intention of the then Government and powerful
CRIL. PETN. No. 14 of 2021 Page 16
persons in power to misuse the Law by trying to let the real
culprits involved escape from justice.
[12] Both the learned counsel appearing for the parties have
submitted their written argument and the same are perused.
[13] Mr. Serto T. Kom, learned counsel appearing for the petitioner
relied on the following judgment;
1) Manik Taneja & Anr. vs. State of Karnataka & Anr.
reported in (2015) 7 SCC 423 [Para No. 8, 11, & 12]
2) Renu Kumari vs. Sanjay Kumar & Ors. in (20080 12
SCC 346 [para 9]
3) Yogesh Alias Sachin Jagdish Joshi vs. State of
Maharasthra reported in (2008) 10 SCC 394 [para 16]
4) P. Vijayan vs. State of Kerala & Anr. reported in (2010)
2 SCC 398 [para25]
5) Yusuf @ Asif vs. State reported in 2023 INSC 912
Supreme Court of India Criminal Appeal No. 3191 of
2023 [para 12, 13, 15, 16 & 17]
6) Tomaso Bruno & Anr. vs. State of Uttar Pradesh
reported in (2015) 7 SCC 178 [para 26]
7) Babu vs. State of Kerala reported in (2010) 9 SCC 189
[para nos. 38, 39, 40, 42 & 43]
In Manik Taneja & Anr vs State of Karnataka & Anr. [(2015)
7 SCC 423], the Hon'ble Supreme Court held that -
"8. The legal position is well-settled that when a prosecution at the
initial stage is asked to be quashed, the test to be applied by the
Court is us to whether the uncontroverted allegations as made, prima
facie, establish the offence. It is also for the Court to take into
consideration any special features which appear in a particular case
to consider whether it is expedient and in the interest of justice to
permit the prosecution to continue. Where, in the opinion of the
Court, the chances of ultimate conviction is bleak and no useful
purpose is likely to be served by allowing a criminal prosecution to
CRIL. PETN. No. 14 of 2021 Page 17
continue, the Court may quash the proceeding even though it may
be at a preliminary stage.
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11. Section 506 IPC prescribes punishment for the offence of criminal
intimidation. "Criminal intimidation" as defined in Section 503 IPC is
as under:
'503. Criminal Intimidation. Whoever threatens another with
any injury to his person, reputation or property, or to the
person or reputation of any one in whom that person is
interested, with intent to cause alarm to that person, or to
cause that person to do any act which he is not legally bound
to do, or to omit to do any act which that person is legally
entitled to do, as the means of avoiding the execution of such
threat, commits criminal intimidation.
Explanation. A threat to injure the reputation of any deceased
person in whom the person threatened is interested, is within
this section.
A reading of the definition of "Criminal intimidation" would
indicate that there must be an act of threatening to another
person, of causing an injury to the person, reputation, or
property of the person threatened, or to the person in whom
the threatened person is interested and the threat must be
with the intent to cause alarm to the person threatened or it
must be to do any act which he is not legally bound to do or
omit to do an act which he is legally entitled to do.
12. In the instant case, the allegation is that the appellants have
abused the complainant and obstructed the second respondent from
discharging his public duties and spoiled the integrity of the second
respondent. It is the intention of the accused that has to be
considered in deciding as to whether what he has stated comes
within the meaning of "Criminal intimidation". The threat must be
with intention to cause alarm to the complainant to cause that
person to do or omit to do any work. Mere expression of any words
without any intention to cause alarm would not be sufficient to bring
in the application of this section. But material has to be placed on
record to show that the intention is to cause alarm to the
complainant. From the facts and circumstances of the case, it
appears that there was no intention on the part of the appellants to
cause alarm in the minds of the second respondent causing
obstruction in discharge of his duty. As far as the comments posted
on the Facebook are concerned, it appears that it is a public forum
meant for helping the public and the act of appellants posting a
comment on the Facebook may not attract ingredients of criminal
intimidation in Section 503 IPC."
CRIL. PETN. No. 14 of 2021 Page 18
In the facts and circumstances of the case, this Court is of the
view that the Ld. Special Court passed the impugned order after considering
facts and circumstances of the case and the statement of the witnesses and
interrogatory statement of the accused and thereafter, considered that a
prima facie case was established the offences alleged against the accused
petitioner.
In Renu Kumari vs. Sanjay Kumar & Ors. [(2008) 12 SCC
346], the Hon'ble Supreme Court held that -
"9. In R.P. Kapur vs. State of Punjab (1960 (3) SCR 388) this
Court summarised some categories of cases where inherent power
can and should be exercised to quash the proceedings:
(i) Where it manifestly appears that there is a legal bar
against the institution or continuance e.g. want of sanction,
(ii) Where the allegations in the first information report or
complaint taken at their face value and accepted in their
entirety do not constitute the offence alleged;
(iii) Where the allegations constitute an offence, but there is
no legal evidence adduced or the evidence adduced clearly
or manifestly fails to prove the charge. (SCR p.393)
In dealing with the last category, it is important to bear in
mind the distinction between a case where there is no legal evidence
or where there is evidence which is clearly inconsistent with the
accusations made, and a case where there is legal evidence which,
on appreciation, may or may not support the accusations. When
exercising jurisdiction under Section 482CrPC, the High Court would
not ordinarily embark upon an enquiry whether the evidence in
question is reliable or not or whether on a reasonable appreciation of
it, accusation would not be sustained. That is the function of the trial
Judge. Judicial process should not be an instrument of oppression,
or, needless harassment. The court should be circumspect and
judicious in exercising discretion and should take all relevant facts
and circumstances into consideration before issuing process, lest it
would be an instrument in the hands of a private complainant to
unleash vendetta to harass any person needlessly. At the same time
the section is not an instrument handed over to an accused to short-
circuit a prosecution and bring about its sudden death. The scope of
exercise of power under Section 482 CrPC and the categories of
cases where the High Court may exercise its power under it relating
CRIL. PETN. No. 14 of 2021 Page 19
to cognizable offences to prevent abuse of process of any court or
otherwise to secure the ends of justice were set out in some detail by
this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC
335). A note of caution was, however, added that the power should
be exercised sparingly and that too in the rarest of rare cases. The
illustrative categories indicated by this Court are as follows: (SCC
pp.378-79, para (102)
'(1) Where the allegations made in the first information report or
the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police
officers under Section 156(1) of the Code except under an
order of a Magistrate within the purview of Section 155(2) of
the Code.
3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out a
case against the accused.
(4) Where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the Act concerned (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a
specific provision in the Code or the Act concerned, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with
an ulterior motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal grudge."
CRIL. PETN. No. 14 of 2021 Page 20
The above citation made by the petitioner is also not reliable in
the present case as at this stage of the trial of the case, it cannot be said
that the allegation against the petitioner does not constitute the offence
alleged and cannot be said that the evidence adduced fails to prove the
charge as the Trial Court is yet to complete the trial.
In Yogesh Alias Sachin Jagdish Joshi vs. State of Maharastra
[(2008) 10 SCC 394], the Hon'ble Supreme Court held that -
"16. It is trite that the words "not sufficient ground for proceeding
against the accused" appearing in the section postulate exercise of
judicial mind on the part of the Judge to the facts of the case in
order to determine whether a case for trial has been made out by the
prosecution. However, in assessing this fact, the Judge has the
power to sift and weigh the material 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 a prima facie case
depends upon the facts of each case and in this regard it is neither
feasible nor desirable to lay down a rule of universal application. By
and large, however, if two views are equally possible and the Judge
is satisfied that the evidence produced before him gives rise to
suspicion only as distinguished from grave suspicion, he will be fully
within his right to discharge the accused. At this stage, he is not to
see as to whether the trial will end in conviction or not. The broad
test to be applied is whether the materials on record, if unrebutted
make a conviction reasonably possible. (See State of Bihar v. Ramesh
Singh and Prafulla Kumar Samal.)".
The Ld. Trial Court passed the order for inclusion of the present
petitioner as one of the accused and subsequently charged the petitioner
under the Act & Rules of the NDPS after having found sufficient ground
against the accused.
In P. Vujayan vs. State of Kerala & Anr. [(2010) 2 SCC 398],
the Hon'ble Supreme Court held that -
"25. As discussed earlier, Section 227 in the new Code confers special
power on the Judge to discharge an accused at the threshold if upon
consideration of the records and documents, he find that "there is not
CRIL. PETN. No. 14 of 2021 Page 21
sufficient ground" for proceeding against the accused. In other
words, his consideration of the record and document at that stage is
for the limited purpose of ascertaining whether or not there is
sufficient ground for proceeding against the accused. If the Judge
comes to a conclusion that there is sufficient ground to proceed, he
will frame a charge under Section 228, if not, he will discharge the
accused. This provision was introduced in the Code to avoid wastage
of public time which did not disclose a prima facie case and to save
the accused from avoidable harassment and expenditure".
It is not at all related and reliable in the present facts and
circumstances of the case.
In Yusuf @ Asif vs. State [(2023) INSC 912 in Criminal
Appeal No. 3191 of 2023],the Hon'ble Supreme Court held that -
"12. A simple reading of the aforesaid provisions, as also stated
earlier, reveals that when any contraband/narcotic substance is
seized and forwarded to the police or to the officer so mentioned
under Section 53, the officer so referred to in sub section (1) shall
prepare its inventory with details and the description of the seized
substance like quality, quantity, mode of packing, numbering and
identifying marks and then make an application to any Magistrate for
the purposes of certifying its correctness and for allowing to draw
representative samples of such substances in the presence of the
Magistrate and to certify the correctness of the list of samples so
drawn.
13. Notwithstanding the defence set up from the side of the
respondent in the instant case, no evidence has been brought on
record to the effect that the procedure prescribed under sub-sections
(2), (3) and (4) of Section 52A of the NDPS Act was followed while
making the seizure and drawing sample such as preparing the
inventory and getting it certified by the Magistrate. No evidence has
also been brought on record that the samples were drawn in the
presence of the Magistrate and the list of the samples so drawn were
certified by the Magistrate. The mere fact that the samples were
drawn in the presence of a gazetted officer is not sufficient
compliance of the mandate of sub-section (2) of Section 52A of the
NDPS Act.
15. In Mohanlal's case, the apex court while dealing with Section
52A of the NDPS Act clearly laid down that it is manifest from the
said provision that upon seizure of the contraband, it has to be
forwarded either to the officer-in-charge of the nearest police station
or to the officer empowered under Section 53 who is obliged to
prepare an inventory of the seized contraband and then to make an
application to the Magistrate for the purposes of getting its
correctness certified. It has been further laid down that the samples
CRIL. PETN. No. 14 of 2021 Page 22
drawn in the presence of the Magistrate and the list thereof on being
certified alone would constitute primary evidence for the purposes of
the trial.
16. In the absence of any material on record to establish that the
samples of the seized contraband were drawn in the presence of the
Magistrate and that the inventory of the seized contraband was duly
certified by the Magistrate, it is apparent that the said seized
contraband and the samples drawn therefrom would not be a valid
piece of primary evidence in the trial. Once there is no primary
evidence available, the trial as a whole stands vitiated.
17. Accordingly, we are of the opinion that the failure of the
concerned authorities to lead primary evidence vitiates the conviction
and as such in our opinion, the conviction of the appellant deserves
to be set aside. The impugned judgment and order of the High Court
as well as the trial court convicting the appellant and sentencing him
to rigorous imprisonment of 10 years with fine of Rs.1 lakh and in
default of payment of fine to undergo further imprisonment of one
year is hereby set aside."
The present case is at the stage of trial and not yet given
findings by the Ld. Speical Judge as such, the present case relied upon by
the petitioner is not reliable in the present case.
In Tomaso Bruno & Anr. vs. State of Uttar Pradesh [(2015) 7
SCC 178], the Hon'ble Supreme Court held that -
"26. The trial court in its judgment held that non-collection of
CCTV footage, incomplete site plan, non-inclusion of all records and
sim details of mobile phones seized from the accused are instances of
faulty investigation and the same would not affect the prosecution
case. Non- production of CCTV footage, non-collection of call records
(details) and sim details of mobile phones seized from the accused
cannot be said to be mere instances of faulty investigation but
amount to withholding of best evidence. It is not the case of the
prosecution that CCTV footage could not be lifted or a CD copy could
not be made."
The observation made by the Hon'ble Supreme Court in the
above paragraph goes against the petitioner.
CRIL. PETN. No. 14 of 2021 Page 23
In Babu vs. State of Kerala [(2010) 9 SCC 189], the Hon'ble
Supreme Court held that -
"38. The evidence given by the Telephone Booth Operator,
Krishnan (PW.14) had been to the extent that the appellant had gone
to his booth and telephoned someone. He stated that he could only
be sure that the accused had come once or twice around the
incident. He further stated that normally the people dial the
telephone on their own and that there was a separation between his
seat and the place from where the appellant had made the phone
call. Consequently, both the Trial Court and the High Court came to
the conclusion that the evidence offered by Krishnan (PW.14) was
not reliable.
39. The High Court, however, stated that there was no reason to
disbelieve the prosecution's version that the appellant had called at
the residence of the deceased thrice on the evening of the date of
incident as this has been established by the evidence of Sini (PW.2)
and Omana Poulose (PW.9). The High Court did not see any reason
to disbelieve the evidence of Sini (PW.2) and Omana Poulose (PW.9)
in this regard. The Court failed to notice the observation of the Trial
Court that Sini (PW.2) and Omana Poulose (PW.9) both were sister
and mother (P.2) of the deceased Sweety and had inimical feelings
towards the appellant since they have come to the conclusion that
the appellant was responsible for her death and their deposition had
material improvements from their statements recorded during
investigation.
40. The Trial Court had further observed that there was a further
irregularity surrounding the investigation into the alleged phone calls.
In his evidence, Krishnan (PW.14) has stated that the telephone
booth was computerised and that there would have been records of
the phone calls that had been made on the given day (indicating
what time, the calls had been made and to what phone number, they
had been made). The Investigating Officer made no attempt to
recover the said records nor did he make an attempt to examine the
employer of Krishnan (PW.14), who received a copy of these records
every month. The High Court has failed to notice the above-said
observations of the Trial Court.
42. It is strange that Paily (PW.21), the Investigating Officer did
not make any reference at any stage to Krishnan (PW.14) in his
evidence before the court. In case, the High Court as well as the trial
Court found Krishnan (PW.14) to be unreliable and Paily (PW.21), the
I.O. did not make any reference to Krishnan (PW.14), nor any record
of the computerised call sheet was produced in evidence, only the
statements of Sini (PW.2) and Omana Poulose (PW.9) existed to
further the prosecution's theory that the appellant made three phone
calls on the day of the incident. Sini (PW.2) and Omana Poulose
(PW.9) might have an inimical attitude towards the appellant after
thinking that appellant was responsible for Sweety's death. The
CRIL. PETN. No. 14 of 2021 Page 24
prosecution has failed to establish that the appellant made three
phone calls to the residence of the deceased prior to the incident.
43. We are of the opinion that all of the aforesaid circumstances
raise great doubts about the prosecution's theory regarding the three
phone calls by the appellant to the residence of the deceased on the
evening of the incident, being an indication of the anxiety of the
appellant. Thus, the very genesis of the case stands falsified"
The reliance made by the petitioner in support of his case is not
at all reliable to the petitioner.
[14] Mr. W. Darakishwor, learned Sr. PCCG appearing for the
respondent relied upon the following Hon'ble Supreme Court's judgments
and the relevant portions of the same are extracted herein below:
1) Suman vs. State of Rajasthan & Anr. [(2010) 1 SCC
205] -
"27. In view of the settled legal position as above, we hold
that a person who is named in the first information report or
complaint with the allegation that he/she has committed any
particular crime or offence, but against whom the police does
not launch prosecution or files charge-sheet or drops the
case, d can be proceeded against under Section 319 CrPC if
from the evidence collected/produced in the course of any
inquiry into or trial of an offence, the court is prima facie
satisfied that such person has committed any offence for
which he can be tried with other accused. As a corollary, we
hold that the process issued against the appellant under
Section 319 CrPC cannot be quashed only on the ground that
even though she was named in the e complaint, the police did
not file charge-sheet against her."
2) Laxmibai & Anr vs. Bhagatwantbuva & Ors [(2013) 4
SCC 97] -
"39. In the matter of appreciation of evidence of witnesses,
it is not the number of witnesses but quality of their evidence
which is important, as there is no requirement in law of
evidence that any particular number of witnesses is to be
examined to prove/disprove a fact. It is a time-honoured
principle that evidence must be weighed and not counted.
The test is whether the evidence has a sign of truth, is
cogent, credible and trustworthy or otherwise. The legal
system has laid emphasis on value provided by each witness,
rather that the multiplicity of plurality of witnesses. It is
quality and not quantity, which determines the adequacy of
CRIL. PETN. No. 14 of 2021 Page 25
evidence as has been provided by Section 134 of the
Evidence Act. Where the law required the examination of at
least one attesting witness, it has been held that the number
of witnesses produced do not carry any weight."
3) Manik Taneja & Anr vs State of Karnataka & Anr
[(2015) 7 SCC 423],
"12. In the instant case, the allegation is that the
appellants have abused the complainant and obstructed the
second respondent from discharging his public duties and
spoiled the integrity of the second respondent. It is the
intention of the accused that has to be considered in deciding
as to whether what he has stated comes within the meaning
of "Criminal intimidation". The threat must be with intention
to cause alarm to the complainant to cause that person to do
or omit to do any work. Mere expression of any words
without any intention to cause alarm would not be sufficient
to bring in the application of this section. But material has to
be placed on record to show that the intention is to cause
alarm to the complainant. From the facts and circumstances
of the case, it appears that there was no intention on the part
of the appellants to cause alarm in the minds of the second
respondent causing obstruction in discharge of his duty. As
far as the comments posted on the Facebook are concerned,
it appears that it is a public forum meant for helping the
public and the act of appellants posting a comment on the
Facebook may not attract ingredients of criminal intimidation
in Section 503 IPC."
4) Prashant Bharati vs State of NCT Delhi [(2013) 9 SCC
293],
"30. Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps to
determine the veracity of a prayer for quashing raised by an
accused by invoking the power vested in the High Court
under Section 482 CrPC:
30.1. Step one: whether the material relied upon by the
accused is sound, reasonable, and indubitable i.e. the
material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the
accused would rule out the assertions contained in the
charges levelled against the accused i.e. the material is
sufficient to reject and overrule the factual assertions
contained in the complaint i.e. the material is such as would
persuade a reasonable person to dismiss and condemn the
factual basis of the accusations as false?
CRIL. PETN. No. 14 of 2021 Page 26
30.3. Step three: whether the material relied upon by the
accused has not been refuted by the prosecution/
complainant; and/or the material is such that it cannot be
justifiably refuted by the prosecution/complainant?
30.4. Step four whether proceeding with the trial would
result in an abuse of process of the court, and would not
serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative,
judicial conscience of the High Court should persuade it to
quash such criminal proceedings in exercise of power vested
in it under Section 482 CrPC. Such exercise of power, besides
doing justice to the accused, would save precious court time,
which would otherwise be wasted in holding such a trial (as
well as proceedings arising therefrom) specially when it is
clear that the same would not conclude in the conviction of
the accused."
[15] Heard the learned counsels at length and perused the case
docket along with the written arguments filed on behalf of both parties and
also submitted citations in support of their cases.
[16] It is an admitted position of fact that the present petitioner was
not named in the FIR and also in the charge sheet but, it is a case that
during the course of the trial, the Ld. Trial Court from the statement of the
accused found a prima facie case against the present petitioner. Accordingly,
the Ld. Trial Court vide order dated 10.03.2017 passed in Cril. Misc. Case
No. 104/2016/3/2017 includes the present petitioner as one of the accused
and cognizance was taken against the present petitioner. Para No. 7, 8, 9, 10
& 12 of the order dated 10.03.2017 is reproduced herein below:
"7. The Ld. counsel for the accused/petitioner submits that the
main allegation made by the CBI against the accused Shri Henry
Okram relates to a phone call to Inspector K. Ranjit Singh, likewise
another phone call was also made by one Tarpon Singh to K. Ranjit
Singh. Thus, there was sufficient materials to summon the said
Tarpon Singh as additional accused for fair trial. Non mentioning of
the name of the said Tarpon Singh in the charge sheet by the CBI is
a serious omission. The Ld. counsel further submits that the other
CRIL. PETN. No. 14 of 2021 Page 27
persons who made phone calls to Shri K. Ranjit Singh like Shri Henry
Okram in connection with the incident have not been cited as
witnesses even though they were not arrayed as accused persons in
the present case for the reasons best known to the CBI which is quite
insignificant. With the above said submissions, the ld. defence
counsel has prayed for issuing summons to the said Tarpon Singh
whose name was mentioned in the statement of witnesses for fair
trial.
8. Per contra, the ld. Spl. P.P. for CBI has contended that
cognizance of the offence has already been taken against the above
named five accused persons should be done at the time of taking
cognizance of the case on 18/04/2016. Further, the ld. Spl. P.P.
postulated the legal position u/s 319 Cr.P.C. and contended that the
present application is not maintainable at this stage. Thus, he has
prayed for rejection of the present application. However, the ld. Spl.
P.P. does not dispute and counter the defence submission that the
other persons besides Shri Henry Okram who also made phone calls
to the said K. Ranjit Singh in connection with the incident have not
been arrayed as accused persons nor cited as witnesses in the
present case.
9. Replying to the argument of the ld. Spl. P.P., the ld. defence
counsel has submitted / reiterated that the other person who made
phone calls to the said K. Ranjit Singh, should also be arrayed as
additional accused persons. Since the CBI has not mentioned the said
persons in the charge sheet, it would be justified to take cognizance
against the said person u/s 193 CrPC even though the preset
application u/s 319 CrPC is otherwise incompetent at this stage of the
case as submitted by the ld. Sp. P.P. for fair trial. In support of his
contention the ld. counsel relies upon the case of Kishun Singh &Ors.
Vs. State of Bihar reported as (1993) 2 SCC 16 @ Para 16 and
submits that this Court has jurisdiction u/s 193 of CrPC to take
cognizance of offence of persons not named as offenders, whose
complicity in the crime comes to light from the material available on
record.
10. Having heard the ld. counsel for both sides and on perusal of
the statement of the witnesses recorded u/s 161 and 164 CrPC
including interrogatory statements of the accused Nos. 1 to 4 which
were not available at the time of filing the charge sheet and further
in the light of the law laid down by the Apex Court in the case of
Kishun Singh &Ors. Vs. State of Bihar reported in (1993) 2 SCC 16
@ Para 16, I hold that there would be no bar while taking cognizance
of offence against Shri Tarpon Singh who was not named in the
charge sheet since his complicity in the crime comes to light from the
materials available on record. The decision in the Kishun Singh's
case(supra) has been reaffirmed by a Constitution Bench of the Apex
Court in Dharam Pal & Ors. Vs. State of Haryana & Anr. reported in
2013 Cril. L.J. 3900 and it is been held in Para 28, 30 and 31 as
follows:
CRIL. PETN. No. 14 of 2021 Page 28
"28. In that view of the matter, we have no hesitation in
agreeing with the views expressed in Kishun Singh's
case(supra) that the Session Courts has jurisdiction on
committal of a case to it, to take cognizance of the offence of
the persons not named as offenders but whose complicity in
the case would be evident from the materials available on
record. Hence, even without recording evidence, upon
committal under Section 209, the Session Judge may
summon those persons shown in column 2 of the police
report to stand trial along with those already named
therein.
.....................
30. The reference to the effect as to whether the decision
in Ranjit Singh's case (supra) was correct or not in Kishun
Singh's case (supra), is answered by holding that the decision
in Kishun Singh's case was the correct decision and the
learned Session Judge, acting as a Court of original
jurisdiction, could issue summons under Section 193 on the
basis of the records transmitted to him as a result of the
committal order passed by the learned Magistrate.
31. Consequent upon our aforesaid decision, the view
taken by the Referring Court is accepted and it is held that the
decision in the case of Kishun Singh vs. State of Bihar and
not the decision in Ranjit Singh vs. State of Punjab lays
down the law correctly in respect of the powers of the Session
Court after committal of the case to it by the learned
Magistrate under Section 209 Cr.P.C."
12. It would be pertinent to note that if no cognizance is taken
against Shri Tarpon Singh who has not been arrayed as accused nor
cited as witness, it will not be fair on the part of this Court to frame
charge against the accused persons at this moment. Non mentioning
of Shri Tarpon Singh either as accused or witness would be a serious
omission on the p art of CBI for which this Court cannot be a mute
spectator and has to intervene in order to avoid miscarriage of
justice. It would be the duty of the Court to find out the real culprits
apart from those sent up for trial by the investigating agency on the
basis of material available on record. Thus, exercising powers
conferred under Section 193 of CrPC, cognizance is also taken against
Shri Tarpon Singh under Section 25A, 29 of the NDPS Act read with
Sec. 120(b), 420, 468, 471 and 506 IPC. Accordingly, issue notice to
Shri Tarpon Singh returnable by 11-4-2017 for appearance and
further proceedings."
And for convenience, Section 193 of CrPC is reproduced herein
below:
CRIL. PETN. No. 14 of 2021 Page 29
Section 193 of CrPC -
"Except as otherwise expressly provided by this Code or by any other
law for the time being in force, no Court of Session shall take
cognizance of any offence as a Court of original jurisdiction unless
the case has been committed to it by a Magistrate under this Code."
[17] After perusal of the pleading of the petitioner and the
respondent and also after hearing the rival contentions made by the learned
counsel for the parties, with their citations in support of their cases, apart
from the views given herein above by this Court, this Court is of the view
that the only point to be discussed here is, even though the petitioner is not
named in the FIR as well as in the charge sheet, the Trial Court i.e. the
Special Court (ND & PS) can implead the present petitioner as one of the
accused and charged along with the other already charged accused in the
middle of the trial and whether the Act of the Special Trial Judge is
permissible in the eyes of law or not.
[18] For this matter, I have gone through the entire case docket
including the rival contentions made by the learned counsel for the parties
and the citations made by both parties in support of their case, in that it is
found from the record that it is indeed mentioned the name of the petitioner
in their recorded statement of the witnesses under Section 161 and 164 CrPC
including interrogatory statement of the accused Nos. 1 to 4. This Court is
relying on the operative portions of the order dated 10.03.2017 of the Ld.
Trial Court for which the relevant paras were reproduced herein above and
this Court is of the considered opinion that the Ld. Special Judge rightly
CRIL. PETN. No. 14 of 2021 Page 30
included the present petitioner as one of the accused and rightly charged the
accused under relevant Sections of ND & PS Act and Rules why because -
(i) The statement of the witnesses under Section 161 and
164 of CrPC including interrogatory statement of the
accused mentioned the name of the present petitioner
which shows his involvement in the present case.
(ii) The above statements were not available at the time of
filing charge sheet.
(iii) In the cross examination, the PW No. 1 mentioned the
name of the present petitioner including his mobile
phone number and mentioned about the intervention of
the higher authority during course of the seizure of the
contraband drugs. Further, the PW No. 1 disclosed that
he did not disclose the mobile number of the present
petitioner due to threats to his life.
(iv) The present petition for quashing the FIR was filed after
4 (four) years gap and the stage of the case was for
examination of prosecution witness.
(v) The present petitioner was one of the accused in the
Special Trial Case No. 100 of 2018 which is/was
demonitored by the High Court of Manipur in PIL No. 38
of 2020 and as per direction of the Court, the present
CRIL. PETN. No. 14 of 2021 Page 31
trial case is treated as top priority by the Trial Court. On
top of that, the said suo-moto case PIL No. 38 of 2020
pending before the High Court of Manipur has been
taken up as directed by the Hon'ble Supreme Court of
India in W.P. (C) No. 699 of 2016.
[19] Now, therefore, this Court is to examine whether the steps
taken by the Ld. Trial Court was as per provision of law laid down by the
Hon'ble Supreme Court for that, this Court is relying on the following
judgments of the Apex Court -
1) Suman vs. State of Rajasthan &Anr. [(2010) 1 SCC
205] -
"27. In view of the settled legal position as above, we hold
that a person who is named in the first information report or
complaint with the allegation that he/she has committed any
particular crime or offence, but against whom the police does
not launch prosecution or files charge-sheet or drops the
case, can be proceeded against under Section 319 CrPC if
from the evidence collected/produced in the course of any
inquiry into or trial of an offence, the court is prima facie
satisfied that such person has committed any offence for
which he can be tried with other accused. As a corollary, we
hold that the process issued against the appellant under
Section 319 CrPC cannot be quashed only on the ground that
even though she was named in the e complaint, the police did
not file charge-sheet against her."
2) Laxmibai & Anr vs. Bhagatwantbuva & Ors [(2013) 4
SCC 97] -
"39. In the matter of appreciation of evidence of witnesses,
it is not the number of witnesses but quality of their evidence
which is important, as there is no requirement in law of
evidence that any particular number of witnesses is to be
examined to prove/disprove a fact. It is a time-honoured
principle that evidence must be weighed and not counted.
The test is whether the evidence has a sign of truth, is
cogent, credible and trustworthy or otherwise. The legal
system has laid emphasis on value provided by each witness,
CRIL. PETN. No. 14 of 2021 Page 32
rather that the multiplicity of plurality of witnesses. It is
quality and not quantity, which determines the adequacy of
evidence as has been provided by Section 134 of the
Evidence Act. Where the law required the examination of at
least one attesting witness, it has been held that the number
of witnesses produced do not carry any weight."
3) Manik Taneja & Anr. vs. State of Karnataka & Anr.
[(2015) 7 SCC 423],
"12. In the instant case, the allegation is that the
appellants have abused the complainant and obstructed the
second respondent from discharging his public duties and
spoiled the integrity of the second respondent. It is the
intention of the accused that has to be considered in deciding
as to whether what he has stated comes within the meaning
of "Criminal intimidation". The threat must be with intention
to cause alarm to the complainant to cause that person to do
or omit to do any work. Mere expression of any words
without any intention to cause alarm would not be sufficient
to bring in the application of this section. But material has to
be placed on record to show that the intention is to cause
alarm to the complainant. From the facts and circumstances
of the case, it appears that there was no intention on the part
of the appellants to cause alarm in the minds of the second
respondent causing obstruction in discharge of his duty. As
far as the comments posted on the Facebook are concerned,
it appears that it is a public forum meant for helping the
public and the act of appellants posting a comment on the
Facebook may not attract ingredients of criminal intimidation
in Section 503 IPC."
4) Prashant Bharati vs State of NCT Delhi [(2013) 9 SCC
293],
"30. Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps to
determine the veracity of a prayer for quashing raised by an
accused by invoking the power vested in the High Court
under Section 482 CrPC:
30.1. Step one: whether the material relied upon by the
accused is sound, reasonable, and indubitable i.e. the
material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the
accused would rule out the assertions contained in the
charges levelled against the accused i.e. the material is
sufficient to reject and overrule the factual assertions
contained in the complaint i.e. the material is such as would
CRIL. PETN. No. 14 of 2021 Page 33
persuade a reasonable person to dismiss and condemn the
factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the
accused has not been refuted by the prosecution/
complainant; and/or the material is such that it cannot be
justifiably refuted by the prosecution/complainant?
30.4. Step four whether proceeding with the trial would
result in an abuse of process of the court, and would not
serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative,
judicial conscience of the High Court should persuade it to
quash such criminal proceedings in exercise of power vested
in it under Section 482 CrPC. Such exercise of power, besides
doing justice to the accused, would save precious court time,
which would otherwise be wasted in holding such a trial (as
well as proceedings arising therefrom) specially when it is
clear that the same would not conclude in the conviction of
the accused."
This Court, after examination of the reliance made by the
respondents in support of their case as reproduced hereinabove of the
Hon'ble Supreme Court, is satisfied that the observation made herein above
by the Hon'ble Supreme Court as reproduced above is applicable in the facts
and circumstances of the present case.
[20] In the facts and circumstances as narrated above and in the
light of the observation made above by the Hon'ble Supreme Court, this
Court is of the view that the Ld. Special Court have taken the steps to
implead the present petitioner as one of the accused and subsequent
framing of the charge as per the provision of law under ND &PS Act and
Rules and decided properly under the ambit/provision of law laid down by
the Hon'ble Supreme Court.
CRIL. PETN. No. 14 of 2021 Page 34
[21] For the reasons stated above, while this Court is in agreement
with the submission of the learned counsel for the respondent that the Ld.
Trial Court passed the said order of impleading/arraying the present
petitioner as one of the accused and the subsequent framing of charge
under the provision of Act & Rules of NDPS are done after application of
mind. Considering the facts and circumstances of the case, the evidences
adduced by the witnesses under Section 161 and 164 of CrPC including their
statements made before the Court and in the light of the series of
observations made by the Hon'ble Supreme Court in this matter, and on top
of that, since the Ld. Special Court have the power under Section 193 of
Code to summon the petitioner as his involvement in the commission of the
crime prima facie appeared from the record as well as the statements of the
witnesses and interrogatory statement including the statement of PW before
the Court in the course of trial, this Court see no reason to interfere with the
impugned order as it is well settled that once it is found that the power
exists for the Special Court to exercise its power. Accordingly, this Court in
the light of the observation and discussion made above come to the
conclusion that the present petition is liable to be dismissed as devoid of
merit.
[22] Accordingly, the present case stands dismissed and disposed
of.
JUDGE
FR/NFR
Lucy/Bipin
CRIL. PETN. No. 14 of 2021 Page 35
