The argument of Mr. Basu, that in view of Section 45(2) of the
UAP Act it is mandatory for the Respondents to place before the Court
the report of the authority constituted, disclosing its independent
review of the evidence garnered in course of investigation, is not
tenable at this stage. In our opinion, this satisfaction of the authority
or report recommending sanction for prosecution is not necessary to
be placed before us when we are deciding a bail application.
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon’ble Mrs. Justice Nishita Mhatre
And
The Hon’ble Mr. Justice Indrajit Chatterjee
CRA 431 of 2011
Kangujam Ravi Kumar Singh
-vs.-
Union of India
Citation; 2014 CR.L.J3103 Cal
Appeal no. CRA 431 of 2011 has been preferred by Kangujam
Rabi Kumar and is directed against the judgment and order dated 6th
2
July, 2011 passed by the Sessions Judge, Darjeeling in NIA case no. 6
of 2010. CRA no. 469 of 2011 has been preferred by Neera Tamang
and Menjor Singh @ Sorokhybam Menjor Singh and is directed
against the judgment and order dated 20th July, 2011 passed by the
Sessions Judge, Darjeeling in the same NIA case. The appellants’
prayer for bail has been rejected.
Both these appeals are being
decided together as they arise out of the same Matigara Police Station
case no. 51 of 2010 dated 15th March, 2010 which has been converted
to NIA case no. 6 of 2010.
2.
It is the prosecution’s case that on 14th March, 2010, the
Deputy Superintendent of Police, Siliguri received a written requisition
from the Office-in-Charge of Commando Imphal, East Manipur Police
that one Ningthoujam Tomba @ Koireng @ Rajen, (hereinafter referred
to as Tomba) a prominent leader of an extremist group operating in
Manipur, was wanted in criminal cases.
He was to pass through
Siliguri along with his associates and that he was moving in the
vicinity of the Matigara Police Station area. A vehicle was intercepted
after obtaining prior information. The two persons in the vehicle,
Tomba and Saraswati Rai were taken into custody. Several articles
were seized from their possession including two mobile phones and
some currency. On the basis of the statement of Tomba some other
persons, namely, Sorokhaibam Memcha Devi and N. Rama Chanu
3
were arrested.
All the persons were identified by the Officer-in-
Charge, Commando Imphal, East Manipur, as the members of the
extremist group Kanglei Yaol Kunba Lup (hereinafter referred to as
‘KYKL’). The FIR was registered for investigation being No. 51/2020
dated
14.3.2010
at
Matigara
Police
Station
under
Sections
121/121A/122/124A of the Indian Penal Code.
3.
An order was issued by the Government of India, Ministry of
Home Affairs (Internal Security-I Division) dated 8th April, 2010 signed
by the Joint Secretary to the Government of India indicating that the
Central Government, having regard to the gravity of the offences and
other material in its possession, was of the opinion that the offences
were scheduled offences under the National Investigation Agency Act,
2008 (hereinafter referred to as ‘NIA Act’) and offences connected to
the scheduled offences under Section 8 of the NIA Act affecting the
security of the State. Therefore, in exercise of the powers conferred
under Section 6(5) read with Section 8 of the NIA Act, the Central
Government suo motu directed the NIA to take up the investigation of
the aforesaid case and such other offences which may be revealed
during the investigation. The FIR was re-registered as NIA/New Delhi
Crime No.6/2010 dated 24.4.2010 against four named accused
persons and other unknown persons.
4
4.
During the course of investigation by the NIA, it was revealed
that other offences had been committed by the accused under
sections 17, 18(B), 19, 20, 21, 38, 39 and 40 of the Unlawful Activities
(Prevention) Act, 1967 (hereinafter called ‘UAP Act’) and therefore
these sections were invoked.
5.
According to the prosecution the involvement of the appellants
came to light and they were also arraigned. The prosecution claims
that all of them were arrested. However according to the appellant in
C.R.A. 431 of 2011, Kangujam Ravi Kumar Singh, (hereinafter
referred to as Ravi Kumar) he complied with the directions of the NIA
team and met them on several occasions after which he surrendered
before the court and was not required to be arrested.
6.
An application for bail was preferred by the Ravi Kumar on 16th
November, 2010 before the Sessions Judge, Darjeeling. However, that
application was rejected as the case records had been transmitted to
the High Court. He renewed his prayer for bail in terms of Section
439 of the Code of Criminal Procedure on 3rd March, 2011.
The
application was rejected by the Sessions Court on 6th July, 2011. The
application for bail of Menjor Singh and Neera Tamang was rejected
by the same Court on 20th July 2011. Hence the present appeals.
5
7.
Mr. Sekhar Basu, the learned Counsel, appearing for the
appellants
has
raised
multiple
issues
with
regard
to
the
maintainability of the prosecution itself and also on merits of the bail
applications. His first submission was that the order of the Central
Government issued under Section 6(5) of the NIA Act on 8th April,
2010, signed by the Joint Secretary to the Government of India, was
not valid as it was not issued in the name of the President of India. At
best, according to him, it could be termed as a mere communication
of the opinion of the Central Government. He submitted that when an
order is passed by the Central Government, it must be issued in the
name of the President of India in view of Section 3(8) of the General
Clauses Act, 1897. According to him any decision, notification, action
or order of the Central Government must be expressed in the name of
the President of India and authenticated under Article 77(2) of the
Constitution of India.
Mr. Basu submitted that any deviation from
such a Constitutional mandate would vitiate all actions taken
pursuant to that order.
He has relied on the judgments of the
Supreme Court in the case of State of Uttranchal & Anr. –vs.-
Sunil Kumar Vaish & Ors. reported in 2011 (8) Supreme 56, Sethi
Auto
Service
Station
&
Another
–vs.-
Delhi
Development
Authority & Others reported in (2009) 1 SCC 180, Shanti Sports
Club & Another –vs.- Union of India & Others reported in (2009)
15 SCC 705, Narayan Govind Gavate etc. –vs.- State of
6
Maharashtra & Others reported in AIR 1977 SC 183, Samsher
Singh –vs.- State of Punjab & Another reported in (1974) 2 SCC
831 in support of this submission.
8.
The next argument of Mr. Basu was that cognisance of offences
which fall either under Chapters IV or VI of the UAP Act is
mandatorily dependant on the sanction being granted in the manner
prescribed under Section 45 of the UAP Act.
Such sanction for
prosecution, according to Mr. Basu, must be preceded by a
recommendation,
of
an
authority
appointed
by
the
Central
Government, based on its independent review of the evidence
gathered in the course of the investigation. He submitted that the
charge-sheet which has been submitted does not indicate that there
has been compliance with Section 45(2) of UAP Act. The learned
Counsel, therefore, submitted that it is vital that the prosecution
places the report before this Court to ascertain whether the
independent authority has acted in accordance with law, and whether
such recommendation given by the authority is based on the evidence
available.
9.
The learned Counsel then submitted that there has been no
compliance with Section 43 of the UAP Act which also renders the
investigation untenable.
He pointed out that the investigation was
7
conducted by an officer who was not empowered in law to perform
such duty. According to him, in view of Section 43A of the UAP Act,
only an officer of the designated authority empowered by a general or
special
order
of
the
Central
Government
may
authorise
his
subordinate to arrest a person or conduct a search when he has
reason to believe that an offence punishable under the UAP Act has
been committed. The learned Counsel urged that since the UAP Act is
a special act, enacted to effectively prevent certain unlawful activities
including terrorist activities, it is necessary that every procedure
under the said Act is strictly complied. He pointed out that in view of
Section 48 of the UAP Act the provisions of the Act have an overriding
effect over the provisions of the Cr.P.C. which may be inconsistent
therewith, especially as applicable to arrest search and seizure.
10.
Mr. Basu has relied on the judgment of the Supreme Court in
the case of Izharul Haq Abdul Hamid Shaikh & Another –vs.-
State of Gujarat reported in (2009) 2 SCC (Cri) 653 in support of
his submission that sanction must be obtained in accordance with
the provisions of the special act.
He has further relied on the
judgment in the case of State of Uttaranchal –vs.- Rajesh Kumar
Gupta reported in (2007) 1 SCC (Cri) 356 to fortify his submission
that when the accused has been charged with a grave offence, it is all
the more necessary to apply the provisions of law strictly. He has
8
also relied on the judgment of Rangku Dutta alias Ranjan Kumar
Dutta -vs.- State of Assam reported in (2011) 2 SCC (Cri) 964 to
submit that the provisions of both Section 6(5) of the NIA Act and
Sections 43 and 45 of the UAP Act have been violated and these
breaches of law cannot be cured.
11.
Mr. B. R. Ghoshal, the learned Counsel for the NIA urged that
this Court, while deciding an appeal against an order rejecting bail,
cannot consider whether any orders on the basis of which action has
been initiated are ultra vires the Constitution of India or whether they
are bad in law. He submitted that the validity of the order dated 8th
April, 2010 can be questioned only by filing a Writ Petition under
Article 226 of the Constitution and not before the Appeal Court. He
then submitted that the impugned order has not been challenged on
the basis of the submissions put forth on behalf of the appellant or on
the questions of law raised by Mr. Basu. The respondent should not
be taken by surprise by permitting the appellant to raise its issues at
this juncture, urged the learned Counsel. He pointed out that under
Article 53(1) of the Constitution of India the executive power of the
union can be exercised either by the President of India directly or
through an officer subordinate to him who has been empowered to do
so. He submitted that the Joint Secretary is empowered to issue
orders.
He urged that in view of the presumption under Section
9
114(e) of the Indian Evidence Act the orders passed by the Central
Government must be presumed to be passed regularly.
He then
submitted that the orders sanctioning the appellants’ prosecution has
been issued in the name of the President of India on 7th September,
2010. According to him there is no need to place on record the report
which persuaded the independent authority to grant a sanction to
prosecute the appellant under the UAP Act.
He further submitted
that the judgments relied on behalf of the petitioner are not relevant
at this stage as we are concerned only with a bail application.
12.
Reliance has been placed by Mr. Ghoshal on the judgments of
the Supreme Court in the case of Redaul Hussain Khan –vs.-
National Investigation Agency reported in 2010 Criminal Law
Journal 1413, two judgments of the Kerala High Court in the case of
2011 Criminal Law Journal 1729, 2011 Criminal Law Journal
1938 and the judgment of the Andhra Pradesh High Court 2013
Criminal Law Journal 1198.
13.
The issue as to whether the prosecution has been sanctioned in
accordance with the provisions of Section 6(5) read with Section 8 of
the NIA Act need not be considered by us at this stage for more than
one reason. This issue which goes to the root of the matter, according
to Mr. Basu, was not raised by the accused Saraswati Rai who has
10
been granted bail by this Court in Saraswati Rai –vs.- Union of
India reported in 2011 (4) CHN (Cal) 324.
Further, when an
application for bail was moved on behalf of Neera Tamang, one of the
appellants in CRA 431 of 2011, no such ground was raised. The issue
was not raised before the Sessions Court when the bail applications
were decided. Even in the present appeal, no ground has been raised
in the memo of appeal relating to this issue. It is true that a question
of law can be raised at any point of time. We do not subscribe to the
contention of Mr. Ghoshal that as we are considering whether bail
should be granted to the appellants, we cannot consider the legality
and validity of the orders issued under the NIA Act or under the UAP
Act. It will have to be proved by the prosecution on the basis of
evidence that the initiation of the prosecution was in accordance with
law and within the ambit of the provisions of Section 6(5) of the NIA
Act. Whether the Joint Secretary is empowered to issue such an order
is a question of fact. In any event the action against the appellants
has commenced in view of the order dated 7th September, 2010 issued
by the Government of India, Ministry of Home Affairs in the name of
the President of India. It is this order under which sanction had been
accorded by the Central Government for prosecuting 7 accused
including the appellants here under Sections 121/121A/122/124A of
the I.P.C. and Sections 17/18B/19/20/21/ 38/39 and 40 of the UAP
Act in case no. 6 of 2010 of the NIA.
11
14.
The argument of Mr. Basu, that in view of Section 45(2) of the
UAP Act it is mandatory for the Respondents to place before the Court
the report of the authority constituted, disclosing its independent
review of the evidence garnered in course of investigation, is not
tenable at this stage. In our opinion, this satisfaction of the authority
or report recommending sanction for prosecution is not necessary to
be placed before us when we are deciding a bail application.
15.
We will now advert to the statements of the witnesses recorded
to ascertain as to whether the appellants deserve to be enlarged on
bail. It must be stated here that the charge-sheet has been submitted
on 8th September, 2010 in which Menjor Singh is shown as accused
no. 5, Neera Tamang as accused no. 6 and Ravi Kumar as accused
no. 7. Evidence regarding the involvement of the 3 appellants came to
light during the course of investigation. The case of the prosecution is
that Ningthoujam Tomba (accused no. 1) with the help of his
associates established an advanced operational base and a safe house
to run his terrorist activities from a strategically located place in
Kurseong.
He controlled the finance of the unlawful association,
KYKL. It is further alleged that Ningthoujam Tomba secured a house
on rent in Kurseong with the aid of Menjor Singh and Neera Tamang
in the year 2005 to establish a safe haven.
According to the
12
prosecution, the seven accused entered into a criminal conspiracy to
disturb peace and tranquillity, to wage war against the State in order
to overthrow the Government by using criminal force and in
furtherance
of
the
conspiracy
they
were
procuring
arms/
ammunitions, collecting funds for terrorist acts, recruiting persons for
commission of terrorist acts, voluntarily harbouring or concealing
persons knowing that such persons are terrorists and members of
terrorist organisations, holding and acquiring property for the
commission of terrorist acts. The allegation against Kangujam Rabi
Kumar Singh in the charge-sheet is that he purchased a plot of land
in his name from the funds given to him by Ningthoujam Tomba for
the future expansion of KYKL base camp in Jalpaiguri. It is further
alleged
that
Kangujam
Rabi
Kumar
Singh
not
only
assisted
Ningthoujam Tomba by financial support but also by physical support
by allowing his name to be registered as owner of the plot for
establishing a safe house and a base camp for KYKL in West Bengal.
16.
We have perused the statements on record.
We find, prima
facie, that the allegations contained in the charge-sheet are supported
by the contents of the statements recorded.
There is material on
record to indicate that the deed writer was informed to draw up a
deed showing that Kangujam Rabi Kumar Singh as the purchaser of
the plot of land. The statement of the owner of the plot of land has
13
been recorded.
The statements of the brokers who negotiated the
transaction between the owner and Ningthoujam Tomba have also
been recorded.
Besides this, the statement of the deed writer has
been recorded. Prima facie, the involvement of Kangujam Rabi Kumar
Singh cannot be ruled out at this stage, and, therefore, we see no
reason to enlarge him on bail.
17.
As regards the appeal of Neera Tamang, this is her second
appeal for bail. She had filed an appeal being CRA No. 678 of 2010
against the rejection of her prayer for bail by the Sessions Court. That
appeal was rejected on 28th March, 2011. We do not see any reason
to differ from that order as there is no change in the circumstances
after the rejection of the earlier appeal.
18.
Adverting now to the allegations against Sorokhybam Menjor
Singh, the charge-sheet mentions that in pursuance of the criminal
conspiracy he deposited a cash of Rs.59,98,000/- (Rupees fifty nine
lacs ninety eight thousand only) between 10th November, 2007 and 1st
February, 2010 in Urban Co-operative Bank, Imphal and sent the
money by mail transfer into two accounts of Ningthoujam Tomba
maintained
with
ICICI
Bank,
Guwahati.
This
amount
was
subsequently withdrawn by Ningthoujam Tomba through the ATM.
The allegation against Sorokhybam Menjor Singh is that he was the
14
main conduit through whom Ninghtoujam Tomba used to transfer
funds from Manipur to finance his terrorist activities. The material on
record includes the statements of bank employees and documents
which prima facie indicate the transfer of huge amounts into
Ningthoujam Tomba’s account on the basis of deposits made in the
Urban Co-operative Bank. Therefore, in our opinion the complicity of
the appellants is prima facie established on the basis of the material
made available in the case diary. A supplementary charge-sheet has
also been submitted on 28th July, 2011.
19.
It has been argued by Mr. Basu that the investigation has not
proceeded in accordance with law as the provisions of the UAP Act
mandate
that
no
police
officer
below
the
rank
of
Assistant
Commissioner of Police can investigate any offence punishable under
Chapters IV and VI of the Act. He points out that all the statements
have been recorded by an Inspector of Police and this amounts to a
breach of provisions of Section 43B of the Act. In support of his
submission, Mr. Basu, has relied on the judgments of Izharul Haq
Abdul Hamid Shaikh & Another (supra) and State of Uttaranchal –
vs.- Rajesh Kumar Gupta (supra).
Prima facie, in our opinion,
recording of the statements by a police officer below the rank of
Assistant Commissioner of Police would not be barred.
The
investigation has been conducted under the command of the
15
Assistant Commissioner of Police/Superintendent of Police, NIA, New
Delhi. Therefore, in our opinion, this submission is unacceptable.
20.
It has also been argued by Mr. Basu that if the appellants are
enlarged on bail there is no possibility of them absconding and they
would attend the trial assiduously.
21.
We have noted that Kangujam Rabi Kumar Singh was
absconding and a warrant of arrest was issued in the name of
Kangujam Rabi Kumar Singh. He was arrested on 31st October, 2010
one month after the charge-sheet had been submitted.
Whether
Kangujam Rabi Kumar Singh surrendered, as submitted by his
Counsel, or he was arrested after the warrant was issued against him
is a matter of record. We do not think it appropriate to enlarge the
appellants on bail, considering the gravity of the offences allegedly
committed by the appellants. The material on record, prima facie,
shows their complicity and there are reasonable grounds for believing
that the accusations against them are true.
22.
Urgent certified photocopies of this judgment, if applied for, be
given to the learned advocates for the parties upon compliance of all
formalities.
(Indrajit Chatterjee, J.)
(Nishita Mhatre, J.)
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