Kobad Ghandy Judgment

State Vs.
Kobad Ghandy and another
IN THE COURT OF SH. PAWAN KUMAR JAIN, ADDL. SESSIONS JUDGE-01(CENTRAL):DELHI SC No. 13/2010 ID No: 02401R0071002010 FIR No: 58/2009 PS. : Special Cell U/S : 10/13/18/20 UAP Act and 19/420/468/471/120B IPC STATE VERSUS Kobad Ghandy @ Katif Ansari @ Kamal @Saleem@Rajan@Kishore@Suman@Gupta @Arvind@Akbar@Prashant@Dilip Patel @Narshi Patel AND SC No. 39/2010 ID No. 02401R0261662010 FIR No: 58/2009 PS. : Special Cell U/S : 10/13/18/20 UAP Act and 19/420/468/471/120B IPC
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State Vs. Kobad Ghandy and another
STATE versus Rajinder Kumar @ Arvind Kumar @ Ashok @ Samir Atmaj Joshi Present: Sh. Rajeev Mohan, Learned Special Public Prosecutor for the State Ms. Rebecca M. Johan and Mr. Bhavook Chauhan, Mr. Vishal Gosain and Mr. Abhishek Batra Advocates, counsel for accused Kobad Ghandy. Mr. Jawahar Raja Advocate, counsel for accused Rajinder Kumar 1. Sessions Case No. 13/2010 and 39/2010 are the subject
matter of this order. By this order I shall dispose of contentions raised by learned counsel appearing for accused persons that primafacie no case is made out against the accused persons. 2. Briefly stated facts of prosecution case are that on
September 20, 2009 at about 11.30 am, a fax message was received from Addl. DGP, Intelligence, Hyderabad that Kobad Ghandy @ Arvind @ Katif Ansari @ Kamal @ Saleem @ Rajan @ Kishore aged about 63 years, a Central Committee Member (CCM in short) and Polituro Member (PBM in short) of CPI (Maoist) a banned organization under the Unlawful Activities (Prevention) Act (UAPA in short) is moving in Delhi especially in Vasant Vihar. It was stated
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that presently he was looking after International Deptt, SubCommittee on Mass Organizations (SUCOMO in short), Central Publishing Bureau (CPB in short) and in charge of South Western Regional Bureau (SWRB in short). It was stated that he was very important member and one of the founding pillars of CPI (Maoist). It was stated that there was all likelihood that this underground (wanted) cadre who had wide contacts and extensive network might be conducting reccee of targets in Delhi to commit offences, thus request was made to arrest him. Said information was assigned to SI Ravinder Kumar Tyagi for further action. (i) But surprisingly, on the same day at about 1.30 pm Mr.
J. Amarender Reddy DSP, Intelligence Department of Hyderabad along with his staff reached the office of Special Cell, Delhi and produced the accused Kobad Ghandy stating that they apprehended him from Delhi at about 1.00 pm from near MTNL office, Bhikaji Cama Place along with his belongings consisting of a voter identity card in the name of Dilip Patel s/o Mukesh Patel r/o WZ 44G Possangipur Village, Janakpuri, Delhi and medical prescriptions of Narsi Patel etc issued by Sitaram Bhartia Hospital, Qutab Institututional Area, Delhi. (ii) It was alleged that after brief interrogation an FIR for
the offence punishable under Section 10/13/18/20 of UAPA was registered, thereafter, investigation was assigned to ACP Sanjeev
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Yadav. It was stated that accused was thoroughly interrogated and his disclsoure statement was recorded, thereafter, he was arrested. It was alleged that during interrogation, it was revealed that in 1994 he joined Peoples War Group (PWG) a banned terrorist organization under terrorist laws prevailing at that time. Apart from this, he also gave the information about other members of banned terrorist organization CPI (Maosit), PWG and MCC. He also disclosed the time and place where he attended the meetings of Central Committee Members of Unity Congress of CPI (Maoist) held in February 2007 in Bheema Bhandu forest of Bihar/Jharkhand. He also disclosed about the resolutions passed in this congress meeting and formation of different groups to complete the task resolved in this congress meeting. It is pertinent to mention here that as per the revealations made by accused Kobad Ghandy, raid at public offices and killing of public functionaries were the important tasks and for this purpose these different groups were formed. He also disclosed that he was residing at H.No. 930/G40, Molarband Extention, Badarpur, Delhi with one of his associates Arvind Joshi @ Ashok. (iii) It was alleged that a raid was conducted at his house in
the intervening night of September 20 & 21, 2009 and from his premises (1) One laptop make IBM Think Pad (2) One DVD Disc (3) Two USB (4) 71 books having literature related to Maoism (5) File covers having cutting of miscellaneous newpapers (6) 49 CDs, DVDs containing Maoist literature (8) Two diaries containing codes
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of E-mail ID and telephone numbers (9) 1 pen drive and (10) 1 CPU, were recovered at the instance of accused. (iv) It was alleged that E-mail account of the accused was
opened through the password provided by the accused in which he was in touch with one person using assumed name Radhika. In these E-mails Kobad Ghandy was being addressed as "Asthana" and was the period between April 19, 2008 to December 22, 2008. It was alleged that in these E-mails there was reflecion of sending of some attachements and sharing of information but these attachements could not be opened due to password protection. It is quite strange that the investigatiing agency failed to decode the password. Needless to say that enumerous anti-password software are available in the market. If investigatiing agency failed to decode the password, it should have taken the assistant of CFSL to decode the password. (v) It was alleged that during investigation, the CDs/DVDs,
Floppy and Pen Drive recovered from the house of accused were analyzed. Out of the CDs, one CD was found containing the coverage of the visit of the accused Kobad Ghandy to Nepal in June/July 2006 to inaugurate People's Liberation Army Camp near Kathmandu, Nepal. In the said CD, the accused was found participating with other members of CPI (Maosit) & CPN (Maoist). In this camp he also delivered a speech in which Govt of India was addressed as enemy. In this speech, he was found informing the
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participants that two terrorist organizations Maoist communist Centre (MCC) and Communist Party of India (Marxist/Leninist), Peoples war have amalgamated to form a new organization CPI (Maoist). He was also found to organize the people to bring them on the path of revolution after being armed them and to attack on the enemy. He was also found saying that after emergence of CPI (Maosit) the enemy Govt. in India has become afraid. He also addressed that they have to fight against the Govt of India. This event is covered in two CDs. There were 4 more CDs containing the film of some actions of Maoist activities in Nepal. Two CDs were containing the activities of CPI ML. One CD was found containing the coverage of the Programme of Central Congress of Maoist of Bihar & Jharkhand. The CDs also containing the visuals of attack on forces of Govt of India and Training programme of militants. (vi) It was alleged that out of recovered DVDs, one DVD
was found containing printed material which was titled as 'for Media". The print out of the document contained in the DVD was taken out. By the study of these printed material, it is very much clear that these documents were relating to the nineth Congress of CPI (Maoist) held on February 1, 2007. There are some resolutions and other related documents, the text of these documents clearly indicate the policy of CPI (Maoist) to raise funds, to support ongoing people's war in the country and resist the move of the Govt Militantly. This CD also contains a video clip titling "Cong flim"
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related to CPI (Maoist). One of the CDs contains coverage of planning and attack on police by CPI (Maoist). One CD was found containing the press release dated February 19, 2007 released by Mr. Ganpathy, General Secretary CPI (Maoist). Another CD was found containing the photographs of some of the members of CPI (ML), Maosit who killed in various encounters with security forces. One more CD was found containing the documents regarding distribution of funds in the year 2001-2002 to the various organization of CPI. (vii) It was alleged that pen drive was found containing
scanned copy of proposals for TV Documentary projects on CPI (Maoist), a scanned copy of the letter dated June 22, 2009 written by "Sattennna" an arrested Central Committee member of CPI (Maoist) lodged in Andhra Pradesh Jail and addressed to Arun @ Kobad Ghandy. In this letter, Sattenna was found informing Kobad Ghandy that party had been banned by Central Govt. and had been put in the list of terrorist organizations. In this letter, it was also requested to focus on the movement of the oganization because Central Govt would adopt each and every tactics to defeat them. In the said letter, information regarding police action of Andhra Pradesh police was also informed to Mr. Kobad Ghandy. From this pen drive, a document titled "Open Letter" dated July 20, 2009 to United Communist Party of Nepal (Maoist) from CPI (Maoist) was recovered. In this letter the activities of both these terroist groups and their mutual cooperation and assistance was discussed and people's
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war and militant manner had been broadly advocated. This pen drive also found containing the interview of Kishanji. This interview also found containing the ideologies of People's War against the Govt. throgh armed rebellions. One document dated July 26, 2009 was also recovered from this pen drive in which an appeal to was expose/oppose and resist to rescind India/US 3.0 Defense Agreement was made. From the floppies one letter written by comrade Saroj on April 18, 2002 to Mahesh and sent to Kobad Ghandy was also recovered. Besides this the photographs of the armed participants of the Congress, their training and attacks were also recovered from these DVDs and Pen drives. (viii) During course of investigation, documents were
collected to establish the previous involvements of accused Kobad Ghandy. As per the report of intelligence department of Hyderabad, he was found involved in 6 cases of Andhra Pradesh and 15 cases of other states in which the attack upon public functionaries and killing of various public functionaries and security foces took place. The documents regarding activities of People War Group, CPI (ML) and CPI (Maoist) were also collected and it was revealed that these organizations remain involved in attack on Army and Paramilitary forces. From the members of these organizations a huge quantity of armed ammunitions and explosives were recovered.
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(ix)
It was alleged that accused Kobad Ghandy had forged
the PAN Card and Electoral Identity Card in the pseudo name of Dilip Patel in order to conceal his identity. (x) After completing investigation, charge sheet against
Kobad Ghandy was filed for the offences punishable under Sections 10/13/18/20 UAPA and under Sections 419/420/468/474/120B IPC. 3. It was alleged that accused Rajinder Kumar @ Arvind
Joshi @ Ashok @ Sameer Atmaj Joshi was an associate of accused Kobad Ghandy and helped him in getting rented accommodation at Badarpur. He was found involved in FIR No. 70/2004 under Sections 121A/124A/120B IPC PS Nanakmatta, Uttrakhand. It was alleged that when raid was conducted at the house of Kobad Ghandy, accused Rajinder Kumar absconded from the rented accommodation. Later on, Rajinder Kumar was arrested in Kanpur along with other CPI (Maoist) members vide FIR No. 30/2010 PS Kidwai Nagar, Delhi. Large quantity of incriminating documents and other literature were recovered from him. It was also alleged that accused had prepared faked idnetity proof/documents in the name of Sameer Atmaj Joshi with the help of electricity bill in which accused Rajinder Kumar forged the signature of house owner Ramesh Sharma, the voter ID card of Kobad Ghandy was also prepared on the basis of fake documents. The handwriting of accused Rajinder Kumar was matched with the documents in question.
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4.
I have heard Sh. Rajeev Mohan, learned Special Public
Prosecutor for the State and Ms. Rebecca M. John, learned counsel for accused Kobad Ghandy and Sh. Jawahar Raja, learned counsel appearing for accused Arvind Joshi, perused the written submissions along with material available on record. Contentions relating to validity of sanction: 5. Learned counsel appearing for the accused persons
vehemently contended that the there is inherent defect in the sanction accorded to prosecute the accused persons as no authority had independently reviewed the evidence collected by the investigating agency. It was submitted that the sanction was accorded in mechanical manner without following the procedure as prescribed under Section 45 of the UAPA. 6. Per contra, learned Special Public Prosecutor for the
State vigorously contended that at this stage there is no material on record to show that there is any infirmity in the saction order dated February 10, 2010. It was contended that when the competent authority had accorded sanction, presumption is that competent authority had accorded sanction in accordance with law, thus at this stage no presumption can be drawn that the recommendation of authority was not placed before the competent authority before
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seeking sanction.
It was urged that sanction was accorded in
accordance with Section 45 of the UAPA. 7. Before dealing with the contentions raised by learned
counsel for the parties, I deem it appropriate to have a look over the relevant provisions of law. Section 45 of the UAPA runs as under:
45. Cognizance of offences. (1) No court shall take cognizance of any offence (i) under Chapter III without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf; (ii) under Chapters IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and where such offence is committed against the Government of a foreign country without the previous sanction of the Central Government.
(2)Sanction for prosecution under sub-section (1) shall be given
within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation within such time as may be prescribed to the Central Government or, as the case may be, the State Government. (emphasis supplied)
8.
Careful perusal of Section 45 reveals that sub-section
(1) deals with the authority who can accord saction for the offences committed under the Act whereas sub-section (2) deals with the procedure to be followed by the authority at the time of granting sanction. It is limpid from Section 45 (1) if the committed offence
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falls under Chapter III of UAPA, Court shall not take cognizance of the offence unless previous sanction is accorded either by the Central Government or by any other officer authorised by the Central Government in this behalf. And if the committed offence falls under the Chapter of IV and VI, Court shall not take cognizance of the offence unless previous sanction is granted by the Central Government or the State Government as the case may be. But if the committed offence is against the Government of a foreign country, Court shall not take cognizance without the previous sanction of the Central Government. In the instant case, offences punishable under Section 10 and 13 of UAPA fall under Chapter III, thus sanction of Central Government or of its authorised officer is required to prosecute the accused. Similarly, offence punishable under Section 18 and 20 fall within Chapter IV, thus Delhi being the Union Territory, sanction of Central Government is required to prosecute the accused for the said offence. It is pertinent to mention here that for the offences mentioned under Chapter IV and VI only Central or State Government as the case may be are authorised to grant sanction and not any authorised officers on their behalf as permitted in respect of offences mentioned under Chapter III of the Act. In the instant case, being the Administrator of Delhi, Lt. Governor of NCT, Delhi had accorded sanction to prosecute the accused. Thus, prosecution has satisfied the condition as recited under sub-section (1) of S. 45 of UAPA.
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9.
Sub-section (2) to 45 of the Act deals with the
procedure how the Central Government or the State Government or the authorised officer of Central Government as the case may be shall accord sanction under sub-section (1). Sub-section (2) defines the procedure as under: (i) (ii) That sanction shall be granted within the prescribed time; That sanction shall be granted after considering the report of such authority, which shall be appointed by the Central Government or the State Government as the case may be; (iii) That such authority shall make an independent review of the evidence gathered in the course of investigation; (iv) That such authority shall make its recommendation within the prescribed time to the Central Government or the State Government as the case may; 10. Now, it becomes abundantly clear that firstly Central
Government or the State Government, as the case may be, shall appoint an authority, which shall make an independent review of the evidence collected by the investigating agency in the course of investigation and thereafter such authority shall make its recommendation within the prescribed time to the Central
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Government or the State Government as the case may be. After considering the said report sanction shall be accorded by Central Government or its authorised officer or State Government as the case may be within the prescribed period. 11 Under Section 52 (2) (ee) Central Government is
empowered to make rule in respect of the time within which sanction for prosecution and recommendation to the Central Government shall be given under sub-section (2) of section 45. In exercise of the power conferred under sub-section (2) of Section 52, Central Government has framed 'The Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008. Rule 3 & 4 are relevant and same are reproduced as under: 3.Time limit for making recommendation by the Authority:The Authority shall under sub-section (2) of section 45 of the Act make its report containing the recommendation to the Central Government or the case may be, the State Government within seven working days of the receipt of the evidence gathered by the investigating officer under the Code.
4.Time limit for sanction of prosecution:- The Central

Government or, as the case may be, the State Government shall, under sub-section (2) of section 45 of the Act, take a decision regarding sanction for prosecution within seven working days after receipt of the recommendations of the Authority. (emphasis supplied)
12.
In the instant case, learned counsel appearing for
accused persons contended that competent authority had not followed the procedure as mentioned under sub-section (2) at the
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time of according sanction, thus sanction is defective, which vitiates the trial. Thus, conundrum question arises as to whether the competent authority i.e. Lt. Governor had followed the procedure at the time of according sanction or not? 13. Qua accused Kobad Ghandy, Lt. Governor of NCT,
Delhi had accorded sanction vide order dated February 10, 2010 and same is reproduced as under:
F.No. 11/04/2010/HP-II/867 Government of National Capital Territory of Delhi Home (Police-II) Department 5th Level, C-Wing, Delhi Sachivalaya, I.P. Estate, New Delhi Dated the 10.02.2010 ORDER F.No. 11/04/2010/HP-II/867 Whereas on a perusal of the draft charge sheet under sections 419/410/468/474/120-B of the Indian Penal Code (45 of 1860) and under sections 10/13/18/20 of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), as amended up to date and on consideration of the allegations made in case FIR No. 58 dated 20th September, 2009 registered at Police Station Special Cell, Lodhi Colony, New Delhi and other material and evidence placed on record, it appears to the Lt. Governor of the National Capital Territory of Delhi that the accused person namely Kobad Ghandy @ Katif Ansari @ Kamal @ Saleem @ Rajan @ Kishore @ Suman @ Gupta @ Arvind @ Akbar @ Prashant @ Dilip Patel @ Narsi Patel s/o Adi Ghandy r/o H.No. 930/D-40, Molar Bund Extention, Badarpur, Delhi, has prima-facie committed offences punishable under sections 10/13/18/20 of the Unlawful Activities (Prevention) Act, 1967
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(37 f 1967), as amended up to date. And whereas, it is necessary in the interest of justice that criminal proceedings should be instituted against the said accused in the Court of competent jurisdiction for his trial in respect of the said offences alleged to have been committed by him. Now, therefore, in exercise of the powers conferred by section 45 read with clause (j) of section 2 of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), as amended up to date, the Lt. Governor of the National Capital Territory of Delhi hereby, grants sanction for the institution of criminal proceedings against the said accused persons namely Kobad Ghandy @ Katif Ansari @ Kamal @ Saleem @ Rajan @ Kishore @ Suman @ Gupta @ Arvind @ Akbar @ Prashant @ Dilip Patel @ Narsi Patel s/o Adi Ghandy r/o H.No. 930/D-40, Molar Bund Extention, Badarpur, Delhi, in the court of competent jurisdiction for committing the offences punishable under sections 10/13/18/20 of Unlawful Activities (Prevention) Act, 1967 (37 of 1967) as amended up to date, in case FIR No. 58 dated 20 th September, 2009 registered at Police Station Special Cell, Lodhi Colony, New Delhi. By oder and in the name of the Lt. Governor of the National Capital Territory of Delhi (ASHISH KUMAR) DEPUTY SECRETARY (HOME)
14.
Qua accused Rajinder Kumar @ Arvind Joshi similar
sanction was accorded vide order dated June 15, 2010. Now, question arises as to whether the sanction accorded against accused persons
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are in accordance with the procedure prescribed under sub-section (2) of S. 45 of UAPA or not. 15.Cursory reading of both the sanction orders reveals that in both cases sanction was granted only on the basis of draft charge-sheet, allegations made in FIR and other material and evidence placed on record. There is no reference of any authority appointed by the Central Government. Similarly, there is no reference that the said authority had independently reviewed the evidence collected by the investigating agency. Similarly, there is no reference that such authority had made any recommendation to the Central Government to grant sanction. In other words, there is no scintilla of evidence to show that the evidence collected by the investigating officer were independently reviewed by any authority appointed by the Central Government or that after review of collected evidence, such authority had ever made any recommendation to the Central Government. It is pertinent to mention here that this Court has no jurisdiction to examine whether the recommendation of competent authority was sufficient to accord sanction or not. But it is the bounden duty of this Court to examine as to whether any authority was appointed by the Central Government in terms of Section 45 (2) of UAPA and; to analyze as to whether such authority had reviewed the evidence collected by the investigating officer during investigation and; to examine whether such authority had made any recommendation to the Central Government to accord sanction against the accused and;
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also that the recommendation must be made within the prescribed time and; that sanction was granted within prescribed time or not. But there is no scintilla of evidence in this regard on record. 16. Needless to say, one of the main objects of imposing
condition of independent review by an authority appointed by the Central Government or the State Government as the case may be, is to prevent the misuse of the stringent provisions of UAPA by the law enforcing agencies. Further, when legislature in its wisdom has prescribed a specific procedure to accord sanction, it is the pious duty of sanctioning authority to follow that procedure. But unfortunately, there is no infinitesimal material on record to show prima-facie that the recommendation of any authority who independently reviewed the evidence collected by the investigating authority was ever brought in the notice of Lt. Governor at the time of obtaining sanction under sub-section (1) of Section 45 of the UAPA. In other words, the competent authority, Lt. Governor of NCT of Delhi in the present case was deprived of the relevant material i.e. recommendation of competent authority that was necessary to consider as to whether sanction should or should not be granted. Further, there is nothing on record to show prima-facie when the Lt. Governor had received the recommendation of the Authority as sanction was to be granted within seven working days on receipt of the recommendation.
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17.Considering the above discussion, I am of the considered opinion that there is inherent defect in the sanction orders dated February 10, 2010 and June 15, 2010 as the same are not in consonance with the mandatory provisions of Section 45 (2) of UAPA, thus sanctions are not valid. 18.After filing the fresh sanction dated March 23, 2012, learned Special Public Prosecutor energetically contended that now there is no defect in the sanction. It was submitted that though the previous sanctions were also valid, yet if there was any defect in the erstwhile sanctions, the same has been cured by the sanctioning authority by granting the fresh sanction. It was submitted that any irregularity or any error in the sanction is not fatal in terms of Section 465 of the Code of Criminal Procedure. In support of his contention, he relied upon four judgments namely Kalapnath Roy Vs. State (through CBI), 1998 Crl. L J 369, State of M.P. vs Jiya Lal decided by Apex Court on 31.07.09 in Crl. Appeal No. 1386 of 2009 and Romesh Sharma vs State, 95 (2002) DLT 267 and State (Govt of NCT Delhi) vs Rajesh decided on 12.08.10 in Crl. Rev. P. No. 286/09 (Delhi High Court) 19. Per contra, learned counsel appearing for accused
persons countered the said contentions by arguing sagaciously that the fresh sanction has been filed in the form of supplementary charge-sheet under Section 173(8) of the Code of Criminal Procedure
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which is not permissible under the law as no further investigation was pending and the sanction was not obtained in furtherance of any investigation. Rather the same has been procured to fill up the inherent defect in the prosecution. It was further submitted that since the cognizance had been taken on illegal and invalid sanction, cognizance order dated February 19, 2010 is void ab-inito, thus the prosecution against the accused persons for the offence punishable under UAPA are void ab-inito. It was further submitted that prosecution cannot be allowed to take the shelter of Section 465 of the Cr.P.C as the same is applicable only to the appellate Court and moreover in the instant case, the accused persons have taken the plea at the very initial stage i.e. before framing of the charge. It was further submitted that the sanctioning authority has no power to review or reconsider the previous sanction in the absence of any additional material. To support their contentions, they relied upon five judgments namely Om Parkash vs State, 1980 RLR 649, Nagraj vs. State of Mysore, AIR 1964 SC 269 and Smt. Javitri Devi Vs. State, 1971 Crl. LJ 1340, Rangku Dutta v. State of Assam, 2011 (3) JCC 1650 and State of Himachal Pradesh v. Nishant Sareen, (2011) 3 SCC (Cri.) 836. 20. By filing the fresh sanction in terms of Section 45(2) of
UAPA through supplementary charge-sheet, prosecution has admitted that the previous sanction qua accused persons was not in accordance with law. As already discussed that the previous sanctions qua both
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the accused persons were not in accordance with mandatory provisions of Section 45(2) of UAPA, thus were not legal and valid sanctions. 21. Section 45 of the UAPA prohibits the Court to take
cognizance of the offence unless the competent authority i.e Central Government, its authorised representative or State government, as the case may be, accorded sanction in accordance with the provisions of Section 45 of the Act. Thus, real question is as to whether the cognizance order dated February 19, 2010 was in accordance with the provisions of Section 45 (1) of the UAPA or not? 22. As already discussed that the previous sanctions qua
accused persons were not in accordance with the mandatory provisions of Section 45 (2) of UAPA, but the Court had taken the cognizance vide order dated February 19, 2010 believing that the sanctions were in accordance with the law. Since, there was no valid sanction in terms of the mandate of the law, Court was not competent to take cognizance qua the offences punishable under UAPA. Thus, the cognizance order dated February 19, 2010 was bad in law as it was in violation of the mandatory provisions of Section 45 (1) of UAPA. 23. Though prosecution has now filed fresh sanction dated
March 23, 2012 qua both the accused persons in terms of the
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mandatory provisions of Section 45 (2) of UAPA, yet no cognizance had been taken in the present case on the basis of said sanction order. Since, the said sanction was not in existence at the time of taking cognizance, question of considering the same by the Court at the time of taking cognizance of the offence does not arise. Mere fact that prosecution has filed fresh sanction order at this belated stage is not sufficient to make the cognizance order valid. Because mandate of law is that Court shall not take cognizance unless there is previous sanction in accordance UAPA. 24. Chapter XXXV of Code of Criminal Procedure deals with the provisions of Section 45(2) of
with the provisions relating to the irregular proceedings. Section 465 deals with any error or irregularity in any sanction for prosecution, same runs as under:
465: Finding or sentence when reversible by reason of error, omission or irregularity.
(1)Subject to the provisions hereinbefore contained, on finding
sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
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(emphsis supplied)
25.
From bare perusal of Section 465 reveals that it applies
to the Superior Courts and it is helpful only if there is merely an error or irregularity in the sanction for the prosecution and no objection was taken by the accused at an earlier stage during the proceedings. It is well settled law that the object of this section is to impart a finality to criminal proceedings. Once a trial or other proceedings is concluded or otherwise terminated, a finding, order or sentence passed in such proceeding shall not be reveresed by a Superior Court on the ground of any error, omission or irreularity in the complaint, summons, etc., except where it is of the opinion that failure of justice has been occasioned by such error, omission or irregularity. It is also settled law that Section 465(1) shall have no application so long as the proceeding in question has not been finally disposed. It does not authorize the Trial Court to override the procedural provisions of the Code or the Superior Court to remain an idle spectator if objection as to the error, omission or irregularity is taken during the pendency of a proceeding and there is time to correct it.
26.
In the instant case, as already held that previous
sanctions were not legal and valid in terms of the mandate of Section 45 of the UAPA, thus it is not a case of mere an error or irregularity in the sanction. Moreover, in the instant case, the accused persons have challenged their prosecution for lack of proper sanction at the
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very appropriate stage i.e. at the time of framing of charge, thus it cannot be said that accused persons had not taken the plea at the appropriate stage. Thus, to my mind Section 465 Cr.P.C is not helpful to the prosecution. 27. I have gone through the judgments relied upon by the
counsel for both the parties. At the outset, it is pertinent to state that in none of the judgments, there was any provision like Section 45(2) of UAPA. Since learned Special Public Prosecutor has strongly relied upon the judgment of Kalpnath Roy (supra), I deem it appropriate to deal with it first. In the said case, learned counsel appearing for the appellants had challenged the sanction on three grounds namely (1) that the sanction was not sufficient to proceed against the accused under Section 3(4) and under Section 5 of TADA. (2) that the sanctioning authority did not intend prosecution proceedings to be launched against the appellants for any offence other than those specifically mentioned in the sanction order. (3) that the sanction even in respect of offences mentioned therein was without application of mind of the sanctioning authority. Thus, it becomes clear that in the said case sanction was not challenged on the ground that the competent authority had not followed the mandatory provisions at the time of granting sanction as like in the instant case. Thus, to my mind, said judgment is not helpful to the prosecution in any manner. 28. Similarly, in State of M.P. v. Jiya Lal (supra) facts were
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totally different from the case in hand. In the said case, High Court had set aside the conviction and sentence on the grounds inter-alia that the sanctioning authority had not applied its mind at the time of granting sanction as sanctioning authority had not enumerated reasons. The said view of High Court was rejected by the Apex Court. In the instant case, there is no issue whether sanctioning authority had enumerated reasons or not. Rather issue is that sanctioning authority had not followed the mandatory provisions of law. 29. Learned Special Public Prosecutor strongly relied upon
the judgment Romesh Sharma's (supra) wherein prosecution had not filed the sanction initially at the time of charge-sheet, but it was filed through supplementary charge-sheet as in the present case. Careful perusal of the judgment reveals that initially charge-sheet was filed on December 18, 1998 without any sanction. Subsequently, supplementary charge-sheet was filed on January 7, 1999 along with the valid sanction. After filing the supplementary charge-sheet, Court took the cognizance. Since the cognizance was taken only after filing the sanction, Court held that there was no infirmity in the order of cognizance. But in the instant case, no cognizance was taken on the basis of supplementary charge-sheet in which valid sanction order is filed. Rather cognizance was taken on the basis of invalid sanction. Thus, to my mind, this case is also not helpful to the prosecution in any manner.
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30.
Learned Special Public Prosecutor energetically relied
upon the judgment State v. Rajesh (supra). In the said case, initally at the time of filing the original charge-sheet, investigating agency had not filed the sanction as required under Section 39 of the Arms Act. However, subsequently, investigating agency had filed the supplementary charge-sheet along with the sanction under Section 39 of Arms Act. On the objection taken by learned counsel for the accused, Trial Court discharged the accused from the charges of Section 25 of the Arms Act holding that since the sanction was not filed along with the original challan, subsequent sanction was not valid. Aggrieved by the said order, State challenged the said order. After considering the case law referred to by the parties, it was held that:
"....While there can be no quarrel with the proposition that mandate of Section 39 of the Act requires a previous sanction for prosecution to be instituted against a person in respect of an offence under Section 3 of the Act, once such a sanction is obtained by the concerned authority, there is no bar on proceeding against the same person in respect of the same offence on the same set of facts. In the instant case, originally, there was no sanction order for prosecuting the respondent under Section 25 of the Act. The first charge sheet was filed on 23.06.2005 and the records reveal that a supplementary charge-sheet filed by the State/petitioner on a subsequent date i.e. 30.12.2006, was taken on the record on 3.1.2007. Hence, the learned ASJ could have entertained the supplementary charge-sheet by treating the same as a fresh charge-sheet from the date of its institution i.e.
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30.12.2006/03.01.2007. At the said stage the documents enclosed with the supplementary charge-sheet including the sanction order dated 29.12.2006 as also the examination report of the CFSL dated 13.09.2005 could be considered."
31.
Learned Special Public Prosecutor contended that the
judgment State v. Rajesh (supra) considered the judgments Om Parkash vs State, 1980 RLR 649, Nagraj vs. State of Mysore, AIR 1964 SC 269 and Smt. Javitri Devi Vs. State, 1971 Crl. LJ 1340 relied upon by the learned defence counsel.
32.
However, learned counsel appearing for the accused
persons contended that the judgment State v. Rajesh (supra) is not applicable in the facts and circumstances of the present case as in the said case there was no sanction at the time of filing the original charge-sheet whereas in the instant case prosecution had filed the sanction but it was invalid. It was submitted that the said defect is incurable and same can not be cured by filing the fresh sanction and relied upon the judgment Rangku Dutta's case (supra). It was further submitted that once the sanctioning authority had accorded the sanction, sanctioning authority has no power to review or reconsider the sanction in the absence of any additional material. In support of their contention, they relied upon State of H.P. v. Nishant Sareen (supra).
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33.
In case Rangku Dutta's case (supra) impugned
conviction and sentence was challenged on the ground that the FIR was registered in violation of mandatory provisions of Section 20(A) (1) of TADA, which reads as under:
20-A Cognizance of offence - (1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police.
Counsel appearing for the State took the plea that since the investigation was conducted by the DSP, therefore the requirement of section 20(A)(1) has been complied with. However, Apex Court rejected the said plea. Observations made in para 21, 23,24 and 29 are relevant, hence reproduced as under: Para 21. It is obvious that Section 20(A)(1) is a mandatory
requirement of law. First, it starts with an overriding clause and, thereafter, to emphasise its mandatory nature, it uses the expression No after the overriding clause. Whenever the intent of a statute is mandatory, it is clothed with a negative command. Para 23. So there can be no doubt about the mandatory nature of the requirement of this Section. Apart from that, since the said section has been amended in order to prevent the abuse of the provisions of TADA, this Court while examining the question of complying with the said provision must examine it strictly. Para 24. Going by the aforesaid principles, this Court finds that no information about the commission of an offence under the said Act can be recorded by the Police without the prior approval of the District Superintendent of Police. Therefore, the requirement
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of prior approval must be satisfied at the time of recording the information. If a subsequent investigation is carried on without a proper recording of the information by the DSP in terms of Section 20(A)(1), that does not cure the inherent defect of recording the information without the prior approval of the District Superintendent of Police. Whether the Deputy Superintendent of Police is a District Superintendent of Police or not is a different question which we need not decide in this case. But one thing is clear that the requirement of approval must be made at the initial stage of recording the information. If there is absence of approval at the stage of recording the information, the same cannot be cured by subsequent carrying on of the investigation by the DSP. Reference in this connection is made to the principles laid down by Lord Denning speaking for the Judicial Committee of Privy Council in Benjamin Leonard MacFoy Versus United Africa Co. Ltd. [1961(3) Weekly Law Reports 1405]. Lord Denning, speaking for the unanimous Bench, pointed out the effect of an act which is void so succintly that I better quote him: "If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse." Para 29. Therefore, the entire proceeding right from the registering of the FIR, filing of the charge-sheet and the subsequent trial is vitiated by a legal infirmity and there is a total miscarriage of justice in holding the trial, ignoring the vital
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requirement of law. We have, therefore, no hesitation in setting aside the impugned judgment of the Designated Court.
34.
From the above judgment, it becomes crystal clear that
some defects are incurable. It is pertinent to state that the Section 45(2) was inserted to prevent the abuse of the stringent provisions of UAPA, this Court while examining the question of complying with the said provision must examine it strictly.
35.
In case State of H.P. v. Nishant Sareen (supra)
respondent was booked under the provisions of Prevention of Corruption Act. Investigating agency sought the sanction to prosecute him, but the competent authority declined the sanction. Investigating agency again filed an application for obtaining the necessary sanction to prosecute the respondent, however, this time competent authority accorded the sanction. Thus, question arose before the Apex Court the extent of power vested in the government in reviewing its order granting or refusing sanction to prosecute the public servant. It was held in para 12 and 13 that:
12. It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow
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that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise. 13. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course."
36.Now question arises as to whether there was any fresh material either before the investigating agency to seek fresh sanction or before the competent authority to reconsider the earlier sanction.
37.In this regard the contents of supplementary charge-sheet are
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relevant, it states that "In continuation of the previous charge-sheet no. 3, it is submitted that the fresh sanction against the accused Kobad Ghandy and Arvind Joshi was obtained under section 45 of the Unlawful Activities (Prevention) Act 1967 and Unlawful Activities (Prevention) Recommendation and Rule 2008 from GNCT as per in accordance with law." Thus, it is not clear what forced the investigating agency to seek the fresh sanction. The supplementary charge-sheet does not reveal what new additional evidence came into the notice of investigating agency, which forced it to conduct further investigation under Section 173(8) of Code of Criminal Procedure. The provisions of Section 45(2) was well in existence when the previous sanctions were accorded. It was the pious duty of the State and competent authority to comply with the mandatory provisions of law at the time of granting sanction. But the investigating agency preferred to ignore the mandatory provisions of Section 45(2) of UAPA without any reasonable excuse. Since provisions were inserted by the Parliament, thus the State can not take the plea that State was not aware about the provisions. As already stated that main object of inserting Section 45(2) of the Act was to prevent the misuse of the stringent provisions of UAPA. Thus, it was the duty of all the concerned authority to comply with the provisions in its letters and spirits. Once the competent authority had exercised its authority by granting sanction without following mandatory provisions of Section 45(2) of the Act, competent authority becomes functus offico to review or reconsider the sanction order. Moreover, it is not a review
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or reconsideration of the previous sanction, review or reconsideration would be justifiable if there would be recommendation of the appointed authority at the time of granting sanction but due to one reason or another, the same could not have been placed before the sanctioning authority. But in the instant case, even at the time of granting sanction, no such authority was in existence. By obtaining the fresh sanction, prosecution is trying to cure a incurably bad sanction order, which in the absence of any provisions of law is not permissible. 38.Present case is not covered by the judgment State v. Rajesh (supra) because in the instant case competent authority had already exercised its discretion by granting sanction to prosecute the accused persons. Had the competent authority refused to grant the sanction for want of recommendation of the authority as mentioned in Section 45(2) of the Act, and the investigating agency approached the competent authority for sanction on the appointment of authority after obtaining its recommendation, then in view of the law laid down in State of H.P. v. Nishant (supra) competent authority would be justified to review its earlier order where sanction was declined for want of necessary recommendation of authority and in view of law laid down in State v. Rajesh (supra) prosecution would be justified to file the sanction even at this belated stage through supplementary charge-sheet. 39. Pondering over the ongoing discussion, I am of the
opinion that the cognizance order dated February 19, 2010 qua the
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offences punishable under Sections 10/13/18/20 of UAPA was bad in law as it was taken without any valid sanction as provided under Section 45(2) of the Act. Contentions relating to validity of notification: 40. Now coming to the next contention raised by learned
counsel appearing for accused Kobad Ghandy that CPI (Maoist) was declared a banned terrorist organization vide notification dated June 22, 2009. It was contended that an act which becomes punishable by an amendment in law, has to have a prospective effect and not be retrospective in operation. Thus, it was submitted that the acts of the accused after June 22, 2009 can only be considered to invoke the stringent provisions of law. It was contended that there is no material on record to show that accused was either member of the CPI (Maoist) or that he was indulged in any unlawful activity in terms of Section 15 of the UAPA during the period June 21, 2009 till the date of his arrest. It was submitted that whatever material investigating agency had collected pertained to the period prior to June 22, 2009 i.e. before the CPI (Maoist) was declared a banned terrorist organization. To support her contention, learned counsel relied upon the judgments Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128, State of Jharkhand v. Shiv Karampal Sahu, (2009) 11 SCC 453 and M/s Virtual Soft System v. Commissioner of IT JT 3 (2007) 125.
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41.
Per
Contra,
learned
Special
Public
Prosecutor
countered the said contentions by arguing that CPI (Marxist/Leninist) and Maoist Communist Centre (MCC) were declared banned terrorist organization in 2001 vide notification dated December 5, 2001. Thereafter, both the said organizations were merged together and formed a new organization called as CPI (Maoist) in the year 2004. It was submitted that after the notification dated June 22, 2009 CPI (Maoist) which was emerged as terrorist organization after the merger of both the above organizations, was declared a banned terrorist organization. It was submitted that accordingly all the above three organizations are terrortist organizations since 2001. 42. held that :
"Every Statute is prima-facie prospective unless it is expressly or by necessary implication made to have retrospective operation. This rule of interpretation should be supplied for the purpose of interpreting our Constitution."
In case Keshavan v. State of Bombay (supra) it was
In case M/s Virtual Soft Systems Ltd. (supra) it was held :

"para 52- There is nothing in the language of Section 271 (1) (c) as amended by the Finance Act 2002 w.e.f. 1.4.2003 to suggest that the amendment is retrospective. The amendment in clause (iii) and simultaneously in Explanation 4 (a) carried out enlargs the scope of penalty under Section 271 (1) (c) to include even cases where assessment has been completed at loss. The same being in the nature of a substantive amendment would be prospective, in the absence of any indication to the contray. "para 54- There is nothing in the language of Section 271 (1) (c) as amended by the Finance Act, 2002 w.e.f. 1.4.2003 to suggest
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that the amendment is retrospective. The amendment in clause (iii) and simultaneously in Explanation 4(a) carried out enlarges the scope of penalty under Section 271 (1) (c) to include even cases where assessment would be prospective, in the absence of any indication to the contrary. The Finance Bill/Finance Act, 2002 brought about many amendments in statute, some of which had retrospective operation. The amendment in Section 271 (1) (c) was consciously made applicable w.e.f. 1.4.2003 and not with retrospective date." (emphasis supplied)
43.
From the above judgments, it emerges that generally all
amendments operate prospectively unless either it is expressly made to have retrospective effect or there are some indication to show that intention of legislature is to operate the amendment retrospectively. Now question arises what was the intention of Central Government at the time of declaring the CPI (Maoist) as a banned terrortist organization? 44. Communist It is undisputed fact CPI (Marxist-Leninist)- People's Centre (MCC), All its Formations and Front
War, All its Formations and Front Organizations and Maoist Organizations were declared terrortist organizations vide notification SO No. 1194 (E) dated December 5, 2001. Both these organizations were merged sometimes in the year 2004 and formed a new organization called as Communist Party of India (Maoist). Since, Central Government believed that CPI (Maoist) was involved in terrorism, Central Government vide notification SO No. 1525 (E) dated June 22, 2009 declared the CPI (Maoist) and all its Formations and Front Organizations a banned terrortist organization. Thus, it
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becomes clear that CPI (Maoist) was not a new organization but the amalgamation of two banned terrortist organizations. On the amalgamation of two banned terrortist organizations, new name was given as Communist Party of India (Maoist). Mere fact that two terrortist organizations have changed their name after amalgamation does not mean that the new entity attains the status of lawful organization. A terrortist organization can not change its identity either by changing its name or by merging or demerging. A terrortist organization shall remain a terrortist organization unless de-notified in accordance with law. Admittedly, neither CPI (Marxist-Leninist) nor MCC have been de-notified till date. In fact CPI (Maoist) is not a separate new organization, it is the new name of two earlier terrortist organizations. To avoid any kind of confusion, Central Government vide notification SO No. 1525 (E) dated June 22, 2009 declared CPI (Maoist) and all its formations and front organization also a terrortist organization. Thus, to my mind said notification is only clarificatory in nature. Thus, if a person who was member of CPI (MarxistLeninist) and MCC in 2001 when the said organizations were declared terrortist organizations and continued to be an active member after the merger, he can not escape from the punisment merely by taking the plea that both the organizations had dissolved in the year 2004 and CPI (Maoist) was not a terrortist organization till June 22, 2009. 45. In view of the above, I am of the opinion that as per
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notification dated June 22, 2009 CPI (Maoist) was a banned terrortist organization from the date of its formation. Thus, the contention of learned defence counsel that the activities of accused Kobad Ghandy prior to June 22, 2009 can not to be looked into is without any substance. Contentions relating to admissibility of seized /CDs/DVDs/Pen drives/floppies 46. Learned counsel appearing for the accused persons
vigorously contended that no reliance can be placed on the text of recovered compact discs, DVDs, floppies and pen drives as the same are secondary evidence in terms of Section 62 of Indian Evidence Act and prosecution has failed to produce the primary source from where the alleged text was stored in the said devices. It was further submitted that prosecution has also not satisfied the requirement of Section 65B of Indian Evidence Act. Accordingly, it was argued that the contents of the recovered CDs/DVDs/Pen drives/floppies can not be read against the accused persons. 47. Per contra, learned Special Public Prosecutor
contended that the above recovery is in its original form and admissible under Section 65 (a) of Indian Evidence Act. It was further submitted that at the stage of charge the probative value of the recovered items is not to be examined. Rather only the contents are to be seen as to whether the same are incriminating in nature or
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not. 48. It is undisputed fact that at the stage of charge, Court
has to see as to whether there is sufficient material to make out a prima-facie case against the accused or not. At this primitive stage, Court is not supposed to examine how the prosecution will prove a particular document. Needless to say, if prosecution fails to prove a particular fact or document in accordance with law, Court shall not read it in evidence, but at this stage it is totally unnecessary to go in such a minute detail. Moreover, cursory reading of Section 65B of Indian Evidence Act reveals that an eloborate procedure has been codified to prove a document if it is generated by a computer maintained in due course of business etc. It does not deal with all type of cases. For instance, if an electornic device like CD/DVD/Pen Drive containing incriminating material is recovered from the possession of a accused and on analysis device is found authentic. To my mind, the said fact will be a relevant fact. Moreover, learned defence counsel failed to convince the Court how prosecution can comply with the provisions of 65B of Indian Evidence Act in respect of the computers maintained by the accused or by his associates. As already stated, at this primitive stage, this Court is not supposed to look into the issue how the prosecution will prove a particular fact, thus, I am of the view that at this stage, contention raised by learned defence counsel is not tenable.
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49.
Learned counsel appearing for the accused astutely
contended that no reliance can be placed on the recovered CDs/DVDs/Floppies/Pen drives as the same were not sent to FSL for analysis, thus possibility of editing with the said devices can not be ruled out. 50. No doubt it is the paramount duty of the prosecution to
prove that the recovered devices remained in tact and the same were not doctored in any manner. If prosecution fails to establish the authenticity and genuineness of the recovered devices beyond the shadow of doubt, no reliance can be placed on the recovered devices. It is also true that investigating agency has not sent the recovered devices to FSL for analysis. Even investigating officer had not deemed it appropriate to note down the hash (#) value of the recovered devices. It is basic rule of investigation that whenever any such device is recovered, first step is to note down the hash (#) value of the device, which rules out the possibility of any editing. But in the instant case, no such step was taken by the investigating officer, such type of lapse was not expected in such a heinous offence. But at this primitive stage, Court is not supposed to see the probative value of the contents of devices. At this stage, Court has only to see whether the contents of recovered devices are sufficient to make out a prima-facie case against the accused or not. Thus, I am of the view the contention raised by learned defence counsel is not tenable at this stage.
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Contentions relating to the alleged incriminating printed and soft material: 51. Learned counsel appearing for the accused sagaciously were recovered from the
contended that that mere fact that some printed or soft materials relating to the banned organization possession of accused does not establish that accused is an active member of banned organization i.e. CPI (Maoist). It was submitted that at the most it shows that accused has inclination or interest in the ideology of the CPI (Maoist). It was further contended that all the recovered material pertains to the period prior to June 22, 2009 when CPI (Maoist) was not declared a banned terrortist organization. It was submitted that accused is not the author of any recovered material. Nor the same was addressed to the accused. It was contended, thus no inference can be drawn on the basis of alleged recovery. It was submitted that mere membership of a banned organization is not sufficient to frame a charge against the accused for the offences punishable under UAPA. In support of her contentions, learned counsel cited the judgments i.e. Indra Das v. State of Assam, (2011) 2 SCALE 312, Anup bhuyan v. State of Assam 2011 (2) SCALE 210, State of Kerala v. Raneef JT 2011 (1) SC 10 and Kedar Nath Singh v. State of Bihar AIR 1962 SC 955. 52. On the converse, learned Special Public Prosecutor
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refuted the said contentions by arguing that Central Government vide notification No. SO 1525 (E) dated June 22, 2009 had declared the CPI (Maoist) a banned terrortist organization, thus prosecution is not required to prove that it is a banned terrortist organization. It was submitted that under Section 38 of UAPA, onus is upon the accused to establish that CPI (Maoist) was not a banned terrortist organization when he joined the membership of the organization or that he had not taken part in the activities of the organization at the time duration its inclusion in the schedule as a terrortist organization. It was submitted that recovered material shows the association of accused with the banned organization since 2001. It was submitted that accused Kobad Ghandy has committed an offence punishable under Section 18, 20 and 38 of UAPA. Learned Special Public Prosecutor relied upon the judgments Mohd. Iqbal M. Sheikh v. State of Maharastra, and Kartar Singh 53. parties. 54. held:
"In view of the rival submissions at the bar, the first question that arises for our consideration is whether the activities can be held to be `terrorist activities' so as to bring it within the purview of TADA. The expression `terrorist act' has not been defined and, on the other hand, Section 2(h) stipulates that it would have the same meaning as has been assigned to it in sub-section (1) of Section 3.
Before analyzing the facts of case in hand, I deem it
appropriate to look into the judgments cited by learned counsel for
In Mohd. Iqbal M. Shaikh's case (supra), Apex Court
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The expression `terrorism' has not been defined under the Act and as has been held by this Court, in the case of HITENDRA VISHNU THAKUR AND ORS. v. STATE OF MAHARASHTRA. 1994(4) SCC 602, it is not possible to give a precise definition of terrorism or to lay down what constituted terrorism. But the Court had indicated in the aforesaid decision that it may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. It has also been stated in the aforesaid decision that if the object of the activity is to disturb harmony of the society or to terrorise people and the society with a view to disturb even the tempo, tranquillity of the society, and a sense of fear and insecurity is created in the minds of a section of the society or society at large, then it will, undoubtedly, be held to be a terrorist act. The question, therefore, does not really boil down to an examination as to whether for the activities, under the normal criminal law, the accused persons can be punished but to examine the real impact of such gruesome and atrocious activities on the society at large or at least on the section of the society. If the case in hand is examined from the aforesaid stand point, on the facts that shortly after the demolition of Babri Masjid at Ayodhya, a communal riot erupted in Mumbai and during that period in the locality in question which was predominantly occupied by Muslims, a Chawl occupied by Hindus who were in minority was set to fire by the people belonging to the rival community and on account of such fire, several people were burnt alive, it is difficult to accept the contention of Mr. Jain that the activities do not fall within the ambit to TADA. In our considered opinion, judging from the atrocity of the activities and judging from the sensitive and tense atmosphere prevailing in the town under which the acts were perpetrated resulting ultimately in the death of several persons, the conclusion becomes irresistible that such activities has far reaching consequences and it affects the society at large and the even tempo had been greatly disturbed and as such the provisions of the Act get attracted to such activities."
55.
Learned Special Public Prosecutor relied uon the
observations made by the Apex Court on the point of mens-rea, which reads as under:-
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"That the prominent method of understanding the legislative intention, in a matter of this nature, is to see whether the substantive provisions of the Act require mens-rea element as a constituent ingredient for an offence. Offence under Sectin 3(1) of POTA will be constituted only if it is done with "intent". If Parliament stipulates that the "terrorist" itself has to be committed with a criminal intention, can it be said that a person who "profess" (as under Section 20) "invites support" or "arranges, manages or assists in arranging or managing a meeting" or "addresses a meeting" (as under Section 21) has committed the offence if he does not have an intention OR design to further the activities of any terrorist organization or the commission of terrorist acts? We are clear that it is not. Therefore, it is obvious that the offence under Section 20 or 21 or 22 needs positive inference that a person has acted with intent of furthering or encouraging terrorist activity or facilitating its commission. In other words, these sections are limited only to those activities that have the itnent of encouraging or furthering or promoting or facilitating the commission of terrorist activities. If these sections are understood in this way, there cannot be any misuse. With this clarification we uphold the constitional validity of Sections 20, 21 and 22"
56.
Learned defence counsel relied upon the two judgments
Arup Bhuyan's case (supra) and Sri Indra Das (supra). Arup Bhuyan's case was followed in Sri Indra Das's case wherein the question as to whether mere membership of a banned organization amounts commission of an offence. In this regard, paragraphs no. 7, 8, 9, 26, 27 and 31 are relevant and reproduced as under:
"Para 7- In Arup Bhuyan's case (supra) we have stated that mere membership of a banned organization cannot incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence, or does an act intended to create disorder or disturbance of public peace by resort to imminent violence. In the present case, even assuming that the appellant was a member of ULFA which is a banned organization, there is no
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evidence to show that he did acts of the nature above mentioned. Thus, even if he was a member of ULFA it has not been proved that he was an active member and not merely a passive member. Hence the decision in Arup Bhuyan's case (supra) squarely applies in this case." "Para 8-In our judgment in State of Kerala v. Raneef 2011 (1) Scale 8 we had referred to the judgment of the U.S. Supreme Court in Elfbrandt vs. Russell 384 US 17(1966) which rejected the doctrine of `guilt by association'. "Para 9- In Elfbrandt's case (supra) Mr. Justice Douglas, speaking for the Court observed : Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat. This Act threatens the cherished freedom of association protected by the First Amendment, made applicable to the States by the Fourteenth Amendment. .........A law which applies to membership without the `specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of `guilt by association' which has no place here." "Para 26- It has been submitted by the learned counsel for the Government before the TADA Court that under many laws mere membership of an organization is illegal e.g. Section 3(5) of Terrorists and Disruptive Activities, 1989, Section 10 of the Unlawful Activities (Prevention ) Act 1967, etc. In our opinion these statutory provisions cannot be read in isolation, but have to be read in consonance with the Fundamental Rights guaranteed by our Constitution. " "Para 27- The Constitution is the highest law of the land and no statute can violate it. If there is a statute which appears to violate it we can either declare it unconstitutional or we can read it down to make it constitutional. The first attempt of the Court should be try to sustain the validity of the statute by reading it down. This aspect has been discussed in great detail by this Court in Government of Andhra Pradesh vs. P. Laxmi Devi 2008(4) SCC 720." "Para 31-Similarly, we are of the opinion that the provisions in various statutes i.e. 3 (5) of TADA or Section 10 of the Unlawful
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Activities (Prevention) which on their plain language make mere membership of a banned organization criminal have to be read down and we have to depart from the literal rule of interpretation in such cases, otherwise these provisions will become unconstitutional as violative of Articles 19 and 21 of the Constitution. It is true that ordinarily we should follow the literal rule of interpretation while construing a statutory provision, but if the literal interpretation makes the provision unconstitutional we can depart from it so that the provision becomes constitutional. "
57.
From the above judgments, it becomes crystal clear that
mere membership of a banned organization is not sufficient to hold the person guilty unless it is proved that the person had resorted to acts of violence or incited people to imminent violence or does an act intended to create disorder or disturbance of public peace by resort to imminent violence. Now question arises as to whether in the case in hand, accused is mere a passive or a vibrant (Maoist)t? member of CPI
58. under:
Before dealing with the above question, I deem it
appropriate to refer Section 20 and 38 of UAPA. Section 20 runs as
Punishment for being member of terrorist gang or organization Any person who is a member of a terrorist gang or a terrorist organization, which is involved in terrorist act, shall be punishable with the imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine. (emphasis supplied)
Section 38 reads as under:
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Offence relating to membership of a terrorist organization (1) A person, who associates himself, or professes to be associated, with a terrorist organization with intention to further its activities, commits an offence relating to membership of a terrorist organization: Provided that this sub-section shall not apply where the person charged is able to prove(a) that the organization was not declared as a terrorist organization at the time when he became a member or began to profess to be member; and (b) that he has not taken part in the activities of the organization at any time during its inclusion in the Schedule as a terrorist organization under sub-section (1), shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both. (emphasis supplied)
59.
Reverting back to the issue as to whether accused was
mere a passive member of CPI (Maoist) or he was involved in the activities of the organization?
60.
Learned Special Public Prosecutor has relied upon as
many as 13 documents which were found in the electronic devices, recovered from the house of accused. Same are mentioned at Sr. (a) to (m) in the written submissions dated Feburary 9, 2012 filed by learned Special Public Prosecutor. I have perused all the documents, but none except one letter dated June 22, 2009 is either written by accused Kobad Ghandy or addressed to him. Even most of the said documents do not bear the signature of any person. Some appears to be the downloaded copy from the internet. Even there is no reference
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of accused Kobad Ghandy except in one letter dated June 22, 2009.
61.
Letter dated June 22, 2009 was sent by one Comrade
Sattenna while he was lodging in Andhra Pradesh Jail. It is a scanned copy of letter written by Comrade Sattenna to Comrade Arun @ Kobad Ghandy. In the said letter Comrade Sattenna informed Comrade Arun @ Kobad Ghandy that their organization CPI (Maoist) had been delcared a banned terrorist organization. He further intimated that Para Military forces and local police had occupied the Lal Garh. He further advised Comrade Arun that in the coming time they had to concentrate on the revolution as Government would not hesitate to adopt all tactics to foil their revolution. Date of letter is quite important because on June 22, 2009 CPI (Maoist) was declared a banned terrorist organization and on the very same day Comrade Sattenna who was in Andhra Pradesh Jail not only came to know about the declaration but also succeeded to write a letter to another Comrade i.e. accused Kobad Ghandy. Had Kobad Ghandy not an important active member of the organization, Comrade Sattena would not have written the said letter to him. He had not only intimated about the ban imposed by the Central Government but also advised the accused that they had to concentrate on the revolution of the organization as Government might adopt any tactic to foil their attempt.
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62.
During search of the house of accused Kobad Ghandy,
one CD containing his speech delivered in Nepal was recovered. Said CD was displayed in the Court during the course of arguments. At the direction of the Court, prosecution has also filed the transcription of the said speech. In his speech, accused Kobad Ghandy was visible for few seconds, which shows that precaution was taken at the time of making video film to conceal his identity. But in some portion of the speech, he is visible. In his speech, accused Kobad Ghandy introduced himself as Commissioner of Brigrade. This further proves that he was one of the active members of CPI (Maoist). In his speech, he also exhorted armed gathering for revolution asking them to unite people pursuaded them to follow revolution path and exhorted them to attack on enmies. It is pertinent to state here that in his speech accused Kobad Ghandy referred the elected Central Government of India and Governments of States to as "Dushman". He appreciated the act of Maoist of Nepal when it was pointed out that 80% of land in Nepal is in the hands of Maoist. He informed the armed gathering that in India also Maoist has occupied huge land but not 80% as in Nepal. He also admitted the merger of MCC and CPI (People's War Group) and stated that after the merger, CPI (Maosit) has become a big powerful organization and government has strarted afraiding from the power of CPI (Maoist). He stated that in India, CPI (Maoist) has emerged as the biggest enemy of Government of India. He further stated that Government of India was preparing itself to deal with CPI (Maoist). He also stated that CPI (Maoist) was also making
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preparation and had soldiers in lakhs and informed the gathering that their power has increased substantially. From his speech, it becomes crystal clear that accused Kobad Ghandy is one of the active members of the CPI (Maoist) and played active role in the activities of the CPI (Maosit).
63.
If we look the other material recovered from the house
of accused in the light of his speech, it will be clear that accused was not having the said material being the mere sympathizer of Maoist ideology or being the researcher of Maoism but he was an active member of the CPI (Maoist) organization. It appears that his role was to persuade people and exhort them for Maoism. Moreover, accused Kobad Ghandy had prepared forged documents in the name of Dilip Patel in order to conceal his identity, which also shows that he was not merely an ordinary member of the organization but an active member of the banned terrorists organization and to avoid his arrest, he had procured forged identity proof documents in pseudo name.
64.
In view of the above discussion, I am of the considered
opinion that there is sufficient material on record to hold prima-facie that accused Kobad Ghandy was a vibrant member of CPI (Maoist), a banned terrorist organization. Since, CPI (Maoist) a declared terrorist organization, presumption will that CPI (Maoist) is involved in terrorist acts. Accordingly, I am of the view that prima-facie a case
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is made out against the accused Kobad Ghandy for the offence punishable under Section 20 and 38 of UAPA.
Contentions relating to Section 18 of UAPA
65.
Learned
Special
Public
Prosecutor
vigorously
contended that there is sufficient material on record to make out a prima-facie case for the offence punishable under Section 18 of UAPA. It was contended that accused Kobad Ghandy had abeted the armed gathering of comrades in Nepal in 2006 against the Government of India. It was further contended that on the arrest of accused, his comrades had abducted one police officer in Jharkand to pressurize the Government of India to release him and when Government of India refused to bow down to the demands of CPI (Maoist), they brutally killed the police officer. It was submitted that the said act amounts terrorists act as defined under Section 15 (b) of UAPA and since accused Kobad Ghandy abeted the same, he is liable for the offence punishable under Section 18 of the UAPA.
66.
Per Contra learned counsel appearing for the accused
sagaciously contended that there is no iota of evidence to show prima-facie that accused was involved in any terrorists act or he incited or abeted any person for terrorists act.
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67.
Before dealing with the contentions raised by learned
counsel for the parties, I deem it appropriate to have a look over the relevant provisions of law.
68.
Section 18 reads as under:

18. Punishment for conspiracy etc. - Whoever conspires or attempts to commit, or advocates, abets, advises or (incites, directs or knowingly facilitates) the commission of, a terrorists act or any act preparatory to the commission of a terrorists act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. (emphasis supplied)
69.
Terrorists act is defined under Section 15 of the Act and
same reads as under:15. Terrorists act Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country (a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of hazardous nature or by any other means of whatever nature to cause or likely to cause(i) death of, or injuries to any person or persons; or (ii) loss of, or damage to, or destruction of, property; or (iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or (iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of
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India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or (b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionaries or attempts to cause death of any public functionaries; or (c) detains, kidnaps or abudcts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorists act. Explanation For the purpsoe of this section, public functionary means the constitional authorities and any other functionary notified in the Official Gazette by the Central Government as a public functionary.
70.
Reading of Section 18 with Section 15 clarifies that the
conspiracy, advocacy, abetment, incitment etc should be in respect of terrorists act or any act preparatory to the commission of a terrorists act as defined under Section 15. Now question arises as to whether there is any material on record to make out a prima-facie case of a terrorists act against accused Kobad Ghandy or not?
71.
Since learned Special Public Prosecutor vigorously
relied upon the speech made by accused Kobad Ghandy in Nepal, I have again gone through the transcription of the same but I am unable to find anything in the said speech, which may fulfill the
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requirements of Section 15 of UAPA. Moreover, it is admitted case of the prosecution that the alleged speech was made in 2006 in Nepal and accused was arrested in 2009. There is no infinitesimal evidence to show that pursuant to his speech any member of the gathering had committed any terrorists act as defined under Section 15 of the Act. No doubt, said speech is sufficient to show prima-facie that accused Kobad Ghandy was an active member of CPI (Maoist) but to my mind is insufficient to show prima-facie that accused Kobad Ghandy had committed the offence punishable under Section 18 of the Act.
72.
In order to bring home the case of accused Kobad
Ghandy within the four corners of Section 15 (c) of UAPA, learned Special Prosecutor vehemently relied upon a document downloaded from the inter-net wherein it was stated that Francis Induwar, an inspector working in the Intelligence wing of the Jharkhand police, was arrested by a Maosit PLGA squad from Hembrom Bazaar in Khunti district on September 30, and kept in their custody for a week before annihilating him on October 6. Before annihilating the intelligence officer Maoist placed the demand for the release of two of their leaders Kobad Ghandy and Bhushan Yadav and another leader of the people's movement in Lalgarh, Chatradhar Mahato, in exchange for the police officer. When the government refused to meet the demands placed by the Maoists the officer was annihilating after a week of detention.
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73.
It is admitted case of the prosecution that after the above
incident, an FIR was registered but the same was neither placed on the record nor any material placed on the record to show that during investigation of the case it was revealed that said police officer was abducted to compel the Government of India or the State Government to release the accused Kobad Ghandy.
74.
To counter the said downloaded document, learned
defence counsel relied upon the statement of Hon'ble Union Home Minister made on October 7, 2009 and published in the newspaper "The Hindu" wherein Hon'ble Union Home Minister categorically denied the demand of release of Kobad Ghandy in the exchange of police inspector Francis Induwar.
75.
Needless to say that Court is not supposed to act on a
document downloaded from a web site unless its contents are verified during the investigation. Since, the contents of downloaded documents relied upon by counsel for both the parties were not verified, this Court can not place any reliance on either of the documents. Prosecution case is that inspector Francis Induwar was abducted to compel the Government of India to release Kobad Ghandy in lieu of abducted police inspector. If it was so, it must have come on record during the investigation of the murder of Francis Induwar but investigating officer to his wisdom has not deemed it
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appropriate to file the copy of charge-sheet or FIR of the said case to show prima-facie that the release of accused Kobad Ghandy was the real motive of abduction and murder of Francis Induwar. Similarly, there is no evidence to show that the abductors of Frnacis Induwar had placed any demand of release of Kobad Ghandy either before the Government of India or the State Government. In the absence of any such evidence, I am of the view, no reliance can be placed on the contention of learned Special Public Prosecutor.
76.
Learned Special Public Prosecutor strongly relied upon
the previous involvements of accused Kobad Ghandy to show that accused had committed terrorist act as defined under Section 15 of UAPA or he had abeted the terrorist act as defined under Section 18 of UAPA. No doubt accused Kobad Ghandy is involved in some cases in Andhra Pradesh and in one case i.e. FIR No. 1/2008 PS Karim Nagar Rural A.P. accused also facing the charges for the offenc punishable under Section 16/17/18/19/20/25 of UAPA. But I am unable to understand how his previous acts are relevant to make out a prima-facie case under Section 18 in the case in hand. If we accept the contention of learned Special Public Prosecutor, it will mean that his previous involvement is perpetual in nature and the same can be used for all the time to come as and when police intends to arrest him. To my mind, his previous involvements, for which he is already facing trial cannot be looked into to make out a prima-facie case under Section 18 of UAPA in the present case. But
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his previous involvements may support the prosecution case that accused Kobad Ghandy was an active member of CPI (Maoist). Contentions relating to Sections 10 and 13 of the Act.
77.
Learned Special Public Prosecutor fairly conceded that
there is no material to make out a case against the accused for the offence punishable under Section10 of UAPA as CPI (Maoist) was not declared unlawful association in terms of Section 3 of the Act. However, he vehemently contended that there is sufficient evidence to make out a prima-facie case for the offence punishable under Section 13 of UAPA as the recovered literature clearly indicates that the accused was involved in unlawful activities as defined under Section 2 (o) of UAPA. On the converse, learned defence counsel sagaciously contended that whatever literature is recovered from the house of accused was not penned down by the accused. Moreover, the material allegedly recovered from the accused does not qualify the condition of Section 2 (o) of UAPA.
78.
Under Section 13, punishment is provided for unlawful
activities and 'unlawful activity' is defined under Section 2 (o) of UAPA. Thus, to make out a case for the offence punishable under Section 13 of UAPA, prosecution has to satisfy the requirement of Section 2 (o) of UAPA, which reads as under:
(o) "Unlawful activity" in relation to an individual or
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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 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; Cession is defined under Section 2(b) as under: "Cession of a part of the territory of India" includes admission of the claim of any foreign country to any such part;
Secession is defined under Section 2(i) as under: "Secession of a part of the territory of India from the Union" includes the assertion of any claim to determine whether such part will remain a part of the territory of India;
79.
Now question arises as to whether there is any evidence
to show prima-facie that accused had committed any unlawful activities. Learned Special Public Prosecutor contended that the recovered literature shows that accused was involved in unlawful activities. But he failed to point out any specific literature. Needless to say, the alleged literature recovered from the house of accused was
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not penned down by the accused. The words used in Section 2(o) are "whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise". It means that there must be some overt act on the part of accused. Mere fact that someone is in the possession of any literature relating to cession or secession of territory of India does not mean that person has committed any unlawful activity unless he does any overt act. Moreover, in the instant case learned Special Public Prosecutor failed to point out any specific literature relating to cession or secession of territory of Inida. Even in his speech, accused Kobad Ghandy had not talked about cession or secession of territory of India. Accordingly, I am of the opinion that prosecution has failed to satisfy the condition of Section 2(o) of UAPA. Thus, in my opinion there is not sufficient evidence to make out a prima-facie case for the offence punishable under Section 13 of UAPA.
Contentions relating to accused Rajinder Fulara for the offence under Unlawful Activities (Prevention) Act:
80.
Ld. Special Public Prosecutor vehemently contended
that accused Rajinder has committed an offence punishable under Section 19 of UAPA as he voluntarily harboured the accused Kobad Ghandy, who was a terrorist. It was contended that though terrorist is not defined under the Act, yet from the scheme of
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Act, it emerges that the person who has committed an offence punishable under Section 16/17/18/18A/18B/20 is a terrorist. It was contended that since Kobad Ghandy has been charge-sheeted for the offence punishable under Section 18/20 of UAPA, accused Rajinder has committed an offence punishable under Section 19 of UAPA.
81.
Per Contra, learned counsel appearing for accused
sagaciously contended that there is no evidence that accused knew that Kobad Ghandy was a terrorist, thus even if we presumed that accused Rajinder had harboured Kobad Ghandy, he can not be held guilty for the offence punishable under Section 19 of UAPA.
82.
Before dealing with the submissions of learned counsel
for the parties, I deem it appropriate to have a look over the relevant provisions of law. Section 19 of UAPA runs as under:
19. Punisment for harbouring etc. - Whoever voluntarily harbours or conceals, or attempts to harbour or conceal any person knowing that such person is a terrorist shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and shall be liable to fine: Provided that this section shall not apply to any case in which the harbour or concealment is by the spouse of the offender.
83.
To make out a prima-facie case for the offence
punishable under Section 19 of UAPA, prosecution has to show prima-facie that accused Kobad Ghandy was a terrorist and accused
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Rajinder knew this fact and despite that he voluntarily harboured Kobad Ghandy. 84. Learned Special Public Prosecutor labelled the accused
Kobad Ghandy a terrorist on the ground that he has been chargesheeted for the offence punishable under Section 18 and 20 of UAPA. As already discussed that there is no sufficient material to make out a prima-facie case against the accused Kobad Ghandy for the offence punishable under Section 18 of UAPA.
85.
Now coming to Section 20 of UAPA. Section 20
prescribes punishment for a person who is member of a terrorists gang or terrorists organization. Mere fact that a person is a member of any such organization or gang does not mean he becomes a terrorists. Terrorist act is defined under Section 15. Unless a person commits any of the acts as mentioned in Section 15, he can not be labelled as a terrorist. Even a terrorist organization or gang may have some members who are not involved in terrorists activities or involved some other social activities. Thus, a person can not be labelled as a terrorist mere fact that he is a member of a terrorist organization or terrorist gang.
86.
No doubt in the instant case, prima-facie accused Kobad
Ghandy was an active member of CPI (Maoist), a terrorist organization. But simultaneously it is also true that there is no
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evidence on record to show that accused Kobad Ghandy had committed any terrorist act. 87. In view of the above, I am of the opinion that there is no
evidence on record to make out a prima-facie case that accused Kobad Ghandy was a terrorist.
88.
Now coming to the second limb of Section 19 as to
whether there is any evidence to show prima-facie that accused Rajinder knew that the person with whom he was residing was Kobad Ghandy, an active member of a terrorists organization.
89.
To connect the accused Rajinder with Kobad Ghandy,
prosecution has relied upon the forged identity card issued by the Election Commission of India in favour of accused Kobad Ghandy in the fake name of Dilip Patel. During investigation, it was revealed that accused Rajinder had helped Kobad Ghandy in getting this forged identity card. Perusal of the record reveals that at the time of making an application for issuance of said identity card, accused Kobad Ghandy @ Dilip Patel had filed a copy of his PAN card. On inquiry, it was revealed that at the time of getting the PAN card, accused Kobad Ghandy @ Dilip Patel had furnished the bank statement of AXIS Bank, which was also found forged. Thus, as per prosecution version, initially accused Kobad Ghandy prepared a forged bank statement, thereafter used the said bank statement in
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getting the PAN card, thereafter used the PAN Card in getting the identity card of Election Commission of India. There is no iota of evidenc that accused Rajinder had helped the accused Kobad Ghandy in obtaining/preparing the said forged bank statement or PAN Card. Accused Rajinder had helped him only in getting the identity card of Election Commission of India by giving no objection certificate after forging the signature of his land lord named Ramesh Kumar. Since, accused Kobad Ghandy had produced his PAN card at the time of applying for identity card, thus accused Rajinder had no reason to dobut over the authenticity of PAN card. Thus, these documents are not sufficient to hold prima-facie that accused Rajinder knew that Dilip Patel was Kobad Ghandy an active member of CPI (Maoist) a banned terrorists organization. However, these documents are sufficient to make out a prima-facie case against both the accused for the offence punishable under Section 419/420/468/474/120-B IPC. It is also pertinent to state here that there are prima-facie evidence that accused Rajinder had obtained PAN Card and Electrol identity card of Election Commission of India in the pseudo name Samir Atmaj by forging the signature of Ramesh Kumar.
90.
In view of the above, I am of the opinion that there is
not sufficient material on record to make out a prima-facie case against accused Rajinder for the offence punishable under Section 19 of UAPA. Moreover, as discussed earlier, sanction qua accused Rajinder is not in accordance with the mandatory provisions of
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Section 45(2) of the Act.
91.
It is pertinent to mention here that challan against
accused Rajinder was filed for the offence punishable under Section 10/13/18/20 UAPA besides the offences punishable under Penal Code. No challan was filed for the offence punishable under Section 19 of UAPA. At the time of argument, learned Special Public Prosecutor has not uttered even a single word against the accused for the offence punishable under Section 10/13/18/20 UAPA. In my opinion, he has rightly not pressed the charges against accused Rajinder under the above sections because there is no scintilla of evidence against the accused Rajinder for the above offence. This casts a serious doubt over the credibility of the investigatiing agency. Needless to say that stringent provisions of law should be invoked with due caution as any laxity in invoking stringent provisions of law may violate the human rights of a person.
92.
Pondering over the onging discussion, I am of the
considered opinion that there is sufficient material on record to make out a prima-facie case for the offence punishable under Section 20 & 38 of Unlawful Activities (Prevention) Act against accused Kobad Ghandy. But since, the cognizance order dated February 19, 2010 qua the offences punishable under UAPA was not in accordance with the mandatory provisions of Section 45(2) of UAPA, I hereby
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discharge accused Kobad Ghandy for the offences punishable under Section 10/13/18/20/38 of UAPA. Similarly, I also discharge accused Rajinder Kumar for the offences punishable under Section 10/13/18/19/20 UAPA. However, there are sufficient material on record to make out a prima-facie case against both the accused persons for the offences punishable under Section 419/420/468/474/120B IPC.
93.
Since,
the
offences
punishable
under
Section
419/420/468/474/120B IPC are exclusively triable by the Court of Metropolitan Magistrate, file be sent back to the Court of Learned Chief Metropolitan Magistrate with direction either to retain the file with him or assign the case to some other competent court as he deems fit for the trial of accused persons in accordance with law.
Announced in the open Court On this 28nd day of March 2012 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI
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State Vs.

Kobad Ghandy and another

SC No. 13/2010 & 39/2010

State Vs. Kobad Ghandy and another

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State Vs. Kobad Ghandy and another

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State Vs. Kobad Ghandy and another

SC No. 13/2010 & 39/2010

State Vs. Kobad Ghandy and another

SC No. 13/2010 & 39/2010

State Vs. Kobad Ghandy and another

SC No. 13/2010 & 39/2010

State Vs. Kobad Ghandy and another

SC No. 13/2010 & 39/2010

State Vs. Kobad Ghandy and another

(1)Subject to the provisions hereinbefore contained, on finding

SC No. 13/2010 & 39/2010

State Vs. Kobad Ghandy and another

From bare perusal of Section 465 reveals that it applies

In the instant case, as already held that previous

SC No. 13/2010 & 39/2010

State Vs. Kobad Ghandy and another

SC No. 13/2010 & 39/2010

State Vs. Kobad Ghandy and another

SC No. 13/2010 & 39/2010

State Vs. Kobad Ghandy and another