SHRI PRASHANT J. SHARMA v. THE UNION OF INDIA AND 2 ORS.

(“NIA” for short), and all subsequent proceedings arising out of the same.

At the outset, it may be stated that various statements have been made in this composite application. However, the learned counsel for the petitioner has argued the matter on the sole ground that the National Socialist Council of Nagaland (IM) [“NSCN (IM)” for short] was not a banned organization Page No.# 3/11 within the meaning of Unlawful Activities (Prevention) Act, 1967 [“UA(P) Act” for short] and that the prosecution, having failed to prima facie show that the petitioner is a member of any terrorist gang and/or terrorist organization, the prosecution against the petitioner is not maintainable on facts and in law. It was submitted that the prosecution side could not establish any involvement of the petitioner as a member of any terrorist gang or terrorist organization. It was also submitted that the name of organization called the NSCN (IM) is not contained in the First Schedule of UA(P) Act as a terrorist organization. Hence, it was submitted that the impugned order transferring the investigation to NIA and consequently the subsequent proceedings after 06.06.2019, the date when the impugned order was passed, including investigation of the case by NIA was illegal and liable to be set aside and quashed. In course of his submission, the learned counsel for the petitioner had specifically referred to the provisions of sections 2(1)(l), 2(1)(m), 20 and 35 of the UA(P) Act.

On a specific query by the Court as to whether the learned counsel for the petitioner was urging any other points in this case, to which the learned counsel for the petitioner has answered in the negative. Hence, the learned CGC and the learned Special Prosecutor for NIA have made their reply only on the sole point urged by the learned counsel for the petitioner, i.e. with regard to lack of any nexus of the petitioner with any banned/ prohibited organization and/or terrorist organization mentioned in the First Schedule of the UA(P) Act.

The learned counsel for the petitioner has submitted that another FIR, which was similar to the FIR in this case, was registered within the State of Page No.# 4/11 Nagaland. Hence, the petitioner has filed a separate “Criminal Writ Petition” before the Kohima Permanent Bench of this Court, where the cause of action had arisen. It was submitted that as the cause of action for this case had arisen within the jurisdiction of this Court, the present composite petition has been filed before this Bench. At this stage, the learned Special Public Prosecutor for NIA has submitted that he has been instructed that on refusal of bail to the petitioner by the competent Court, the petitioner has moved the Principal Seat of this Court by way of an appeal.

Per contra, the learned Special Public Prosecutor for NIA and the learned CGC have both made their respective submissions to oppose this composite petition.

Upon hearing the learned counsel for the parties, perused the materials available on record in form of the writ petition, affidavit-in-opposition filed separately by respondent nos.1 and 2 and the affidavit-in-reply filed by the petitioner against the affidavit-in-opposition filed by the respondent no.2.

In brief, the contents of FIR dated 21.05.2019, which was lodged by Constable posted at 2nd AAP Bn. before the Officer In-Charge, Khonsa P.S. is to the effect that the informant was deployed as Personal Security Officer (PSO for short) to Shri Tirong Aboh, MLA, Khonsa West since 25.09.2018 and on

21.05.2019, he along with the MLA, his son, three PSOs, one lady cook and eight others were coming towards Khonsa in four vehicles from Dibrugarh and at around 12.00 hrs., while crossing Pansumthong village area, their convoy was Page No.# 5/11 ambushed and attacked by suspected armed under-grounds, numbering around 10-12, who had fired at them for about 2-3 minutes with sophisticated weapons. It was stated that he had managed to stay unhurt by lying down inside the car. It was stated that after the firing had stopped, he came out of the vehicle and saw some fully armed assailants in camouflage combat dress carrying sophisticated weapons. Out of 15 persons in four vehicles, he found a constable injured due to firing and both of them found 11 persons including the MLA on spot with grievous injuries and not moving and remaining two persons were able to run away from the spot. Thereafter, they requested a private Tata Winger to take both of them to Khonsa Police Station and on reaching there, the incident was narrated to the duty officer, after which, under the supervision of SIB, the informant together with a police party left for the place of incident and the police inspected the scene of crime. Accordingly, FIR No.28/2019 was registered under sections 302, 307, 34 IPC, sections 25(1b)(a)/27 of Arms Act and sections 10/13 of UAPA Act.

Thereafter, on receiving information about the aforesaid case, the Central Govt. was of the opinion that schedule offence under NIA Act had been committed, and having regard to the gravity of the offence, which involved striking terror in the State, it was required to be investigated by NIA in accordance with the NIA Act and accordingly, in exercise of power conferred under sub-section (5) of section 6 read with section 8 of the NIA Act, the Central Govt., by the impugned order dated 06.06.2019 directed the NIA to take up investigation of the said case. Accordingly, the said offence was re-registered Page No.# 6/11 as FIR No.RC-03/2019/NIA-Guw dated 10.06.2019.

On completion of investigation, a Final Report under section 173 (2) Cr.P.C. was submitted before the NIA Special Court, Yupia being Final Report/Charge Sheet No.3/2020, dated 27.01.2020, wherein the petitioner, namely, Jai Kishan Sharma was arrayed as accused no.3 along with 3 other co- accused, being accused no.2, 4 and 5 respectively. The first accused along with 20 others were not charge sheeted. In brief, in the charge sheet it was stated that the accused no.2, one of the armed cadre of terrorist gang of NSCN (IM), was involved in the terrorist act of killing the MLA and 10 others on 21.05.2019 and that he used to collect money to give it to a self-styled Major General of NSCN (IM) with the help of the petitioner and as per investigation, the petitioner had gone to Dimapur for handing over collected funds raised for NSCN (IM) and that the petitioner had conspired in the terrorist act of killing of MLA and after the killing, the petitioner had concealed himself and disappeared from Khonsa and that the petitioner had used multiple phone numbers to call terrorist gang members of NSCN (IM) and that in course of search operations, many documents were recovered showing transactions with different under-ground organizations and Govt. officials and accordingly, the petitioner was projected to be a co-conspirator in the instant crime.

There is no doubt that on the date when by impugned order dated

06.06.2019, the investigation was transferred to NIA, the NSCN (IM) was not a “terrorist organization” as its name was not contained in the First Schedule to the UA(P) Act. Moreover, it is not in dispute that no orders were passed by the Page No.# 7/11 competent authority under sections 7 and 8 of the UAPA Act. However, it is seen that “unlawful activity” is defined under section 2(1)(o) of the UAPA Act, which includes committing of an act in relation to any “individual”. Similarly “terrorist act” within the meaning of section 15 of the UAPA Act is also in relation to “whoever”, which would positively include an individual, and the same can be gathered from the definition of “person”, which is defined under section 2(1)(ec) of the UA(P) Act, which provides that “person” would also include an “individual”. Therefore, if any “person” conspires in the commission of any terrorist act, he would be liable for punishment for conspiracy as provided for in section 18 of the UA(P) Act. It may be mentioned that the “terrorist gang” is defined under section 2(1)(l) of the UA(P) Act providing that “terrorist gang” means any association, other than terrorist organization, whether systematic or otherwise, which is concerned with, or involved in, terrorist act, and that “terrorist act” has been defined under section 2(1)(k) of the UA(P) Act, providing that “terrorist act” has the meaning assigned to it in section 15, and the expressions “terrorism” and “terrorist” shall be construed accordingly.

Thus, it is seen that while the provisions of section 20 of the UA(P) Act provides for punishment to any person for being a member of terrorist gang or organization, it cannot be said that under the provisions of the UA(P) Act, a person cannot be proceeded with or investigated or prosecuted or tried under the provisions of the UA(P) Act merely because a particular terrorist gang/organization is not included in the First Schedule appended to the UA(P) Act. Page No.# 8/11

This Court is unable to accept that the brutal killing of a sitting MLA along with 10 persons accompanying him is unlikely to threaten the unity or security of the Country or that such activity cannot constitute activity with an intent to strike terror in the people or any section of people in the Country. Therefore, in the opinion of the Court, the action of killing the MLA along with 10 (ten) others, can be said to be a “terrorist act” within the meaning of section 15 of the UA(P) Act, because the killing of 11 persons including a sitting MLA was carried out by use of fire arms. Moreover, it also cannot be accepted that the MLA would not be a “public functionary” or “constitutional authority” within the meaning of “Explanation (a)” to section 15 of UA(P) Act. Consequently, the Court is unable to accept that the act of killing 11 people including MLA would not be covered by a “terrorist act” within the scope of section 15 of the UA(P) Act. Therefore, being a co-conspirator, the activities of the petitioner would prima facie be covered by the definition of “unlawful activity” within the meaning of section 2(1)(o) of the UA(P) Act. It may be mentioned that in the charge sheet, the nature of involvement of the petitioner is more fully stated in paragraph 17.3, which includes statements made in sub paragraph 17.3.1 to

17.3.7 thereto. This order is not burdened with the repetition of voluminous statements made in the charge sheet and therefore, it would be sufficient to mention that in sub-paragraph 17.3.7 of the charge sheet, it has been mentioned that the investigation has established that the petitioner (accused no.3) was one of the co-conspirators of the criminal conspiracy to kill the MLA and 10 others in the terrorist act of the instant case. It may further be mentioned that as per the charge sheet, the petitioner has been accused of Page No.# 9/11 committing offence under sections 120B read with 302 and 307 of IPC and sections 16, 18 and 20 of the UA(P) Act.

Therefore, in view of the discussions above, the sole point urged by the learned counsel for the petitioner is without any merit, because even an individual act of terrorist/unlawful activity cannot be said to be excluded from the scope of investigation, trial and punishment under the UA(P) Act, notwithstanding that NSCN(IM) is not included in the First Schedule to the UA(P) Act. Moreover, the UA(P) Act is contained in First Schedule appended to the NIA Act, and the “schedule” is defined under section 2(1)(f) of the NIA Act. This leaves no room for a doubt that the investigation of offences covered by UA(P) Act can be taken up by the NIA for all intents and purpose.

In this regard, the Court finds support from the observations made by the Supreme Court of India in the case of Redaul Hussain Khan Vs. National Investigation Agency, (2010) 1 SCC 521, which is referred to in the case of State of Kerala Vs. Reneef, (2011) 1 SCC 784 to the effect that merely because an organization has not been declared as an “unlawful association”, it cannot be said that the said organization could not have indulged in terrorist activities. It may be mentioned that in the case of Redaul Hussain Khan (supra), the accused was sending money to an extremist organization for purchasing arms and ammunitions.

Although it has been mentioned that in the ground of the present writ petition that prosecution under section 17 and 45 of the UA(P) Act was not Page No.# 10/11 granted, but that by itself would not constitute a sufficient reason for quashing of the FIR or further proceedings on the case against the petitioner, where charge sheet has been submitted projecting the petitioner to be a co- conspirator. It may be mentioned that as a passing remark that in this composite petition, there is no specific prayer for quashing of the charge sheet, although the charge sheet has been annexed to the writ petition and the petitioner has only made a prayer for quashing of the impugned order dated

06.06.2019 and all the subsequent proceedings arising out of the same. In this connection, it would be appropriate to mention here that although the Court has examined the merit of prayer for quashing of the charge sheet, nonetheless, the Court is of the considered opinion that without a specific prayer or quashing of the charge sheet, a charge sheet cannot be quashed merely on the basis of a vague prayer for quashing of subsequent proceedings arising out of impugned order dated 06.06.2019. Moreover, in a quashing application, in the absence of a specific prayer, it would not be wise for the Court to mould reliefs as is otherwise permissible under Article 226 of the Constitution of India, because the jurisdiction to quash a criminal proceeding and a charge sheet emanates from section 482 Cr.P.C.

Therefore, in view of the discussions above, this writ petition fails and the petitioner is not found entitled to any relief of quashing of the impugned order dated 06.06.2019 or for quashing of the subsequent proceedings of the said case no.RC-03/2019/NIA/Guw.

It is clarified that none of the observations made herein would prejudice the prosecution or the petitioner in course of trial. Page No.# 11/11 JUDGE JUDGE Comparing Assistant