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. 13/2010ID No: 02401R0071002010

FIR No: 58/2009 PS. : Special CellU/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. 39/2010ID No. 02401R0261662010

FIR No: 58/2009 PS. : Special CellU/S : 10/13/18/20 UAP

Act and 19/420/468/471/120B IPC

SC No. 13/2010 & 39/2010 Page no. 1 of 65


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 prima-

facie 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, Sub-

Committee 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) That sanction shall be granted within the prescribed

time;

(ii) 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

O R D E R

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 20th 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 with the provisions of Section 45(2) of

UAPA.

24. Chapter XXXV of Code of Criminal Procedure deals

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. In case Keshavan v. State of Bombay (supra) it was

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 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. It is undisputed fact CPI (Marxist-Leninist)- People's

War, All its Formations and Front Organizations and Maoist

Communist Centre (MCC), All its Formations and Front

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 (Marxist-

Leninist) 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

contended that that mere fact that some printed or soft materials

relating to the banned organization were recovered from the

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. Before analyzing the facts of case in hand, I deem it

appropriate to look into the judgments cited by learned counsel for

parties.

54. In Mohd. Iqbal M. Shaikh's case (supra), Apex Court

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.

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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 member of CPI

(Maoist)t?

58. Before dealing with the above question, I deem it

appropriate to refer Section 20 and 38 of UAPA. Section 20 runs as

under:

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 charge-

sheeted 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

SC No. 13/2010 & 39/2010 Page no. 65 of 65

Kobad Ghandy Judgment

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Transcript of Kobad Ghandy Judgment