Anand, State-Gujrat. … v. 1. Union of India, represented through Superintendent of Police, Chief Investigation Officer, National Investigation
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI -------- W.P.(Cr.) No. 226 of 2023 ------ Navinbhai Jayantibhai Patel, aged about 48 years, son of, resident of C-312-313, GIDC, Karamsad, P.O. and P.S. Anand, District: Anand, State-Gujrat. … … Petitioner Versus 1. Union of India, represented through Superintendent of Police, Chief Investigation Officer, National Investigation Agency, Ranchi, P.O. & P.S. Dhurwa, District-Ranchi. 2. State of Jharkhand through the Principal Secretary, Department of Home Project Building, Dhurwa, P.O. & P.S. Dhurwa, District- Ranchi. … … Respondents P R E S E N T HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA ….. For the Petitioner For the Respondents : Mr. Rajeev Kumar, Advocate Mr. Amlan Palit, Advocate : Mr. Amit Kumar Das, Advocate Mr. Saurav Kumar, Advocate ….. C.A.V./Reserved on 20.02.2024 Per Sujit Narayan Prasad, J.: Prayer: Pronounced on 14/03/2024 1. The instant criminal writ petition has been filed under Article 226 of the Constitution of India for the following reliefs: “(i) For a declaration that there cannot be a charge bereft of the materials collected during investigation and a trial based upon such charge would be violative of Article 21 of the Constitution of India. (ii) For issuance of an appropriate writ of, or in the nature of prohibition restraining the order dated 24.11.2021 in the Court of Sri Madhuresh Kumar Verma, learned Spl. Judge (AJC-XVI) Ranchi from proceeding with Trial of NIA (National Investigation Agency) case R.C. Case No.2/2018 charges till the compliance of Section 211(5), 212, 213 is made and the trial of the petitioner be segregated as there is/was no component of joint trial u/s 223 Cr.P.C.” Facts: 2. The prosecution story in brief, which is required to be referred herein, reads as under: 2 W.P.(Cr.) No. 226 of 2023 On 10.11.2016, on receiving secret information, the informant namely Mr. Bindeshwari Das, Officer In-charge of Bero P.S. registered an information received regarding the associates of Supremo PLFI depositing ill-gotten money of crime proceed realized as extortion of levy at SBI, Bero, Ranchi. After having informed his superior authorities and having received their directives, he proceeded for its verification alongwith other police officials and reserve guards. At about 03.15 PM, he reached along with his team at SBI, Bero, Ranchi, and after surrounding the same waited in ambush. In the meantime, after having seen the police party, 3-4 persons making hue and cry attempted to flee away with bag having articles carrying in their hand, and one of the persons was apprehended from campus of the Bank and three persons were apprehended while boarding Safari Vehicle No. JH-01-Y-2898. On asking, the persons apprehended disclosed their name as co-accused Binod Kumar, Chandra Shekhar Kumar, Nand Kishore Mahto and Mohan Kumar. The Informant conducted search of these persons in presence of independent witnesses and alleged levy/extorted amount of Rs. 25,38,000/- was recovered. The co-accused were unable to show any document and one of the co-accused confessed before the Informant that the PLFI Supremo Dinesh Gope had instructed him on mobile phone after the Central Government Policy of demonetization to deposit the amount. It was further confessed by a co-accused that levied, extorted money was given by PLFI extremist organization for getting it converted to white money by depositing in the name of the said petrol pump. Accordingly, all the said articles were seized in presence of independent witnesses and seizure list was prepared. On these grounds, the informant claimed that these accused persons were involved in the extortion of levied amount and such ill-gotten money was being converted by hardcore outlawed PLFI extremist people which is dangerous to the national interest and helpful for the extremist organization.
Legal Reasoning
Accordingly, a First Information Report was instituted against six accused persons including four arrested persons namely Binod 3 W.P.(Cr.) No. 226 of 2023 Kumar, Chandra Shekhar Kumar, Nand Kishore Mahto and Mohan Kumar 3. By this writ petition, direction has been sought for by way of declaration that there cannot be a charge bereft of the materials collected during investigation and a trial based upon such charge would be violative of Article 21 of the Constitution of India with a further direction to be issued in the nature of prohibition restraining the learned trial court from proceeding with Trial of NIA case being R.C. Case No.2/2018 charges till the compliance of Section 211(5), 212, 213 is made and the trial of the petitioner be segregated as there is/was no component of joint trial u/s 223 Cr.P.C. Arguments on behalf of the Petitioner:
Legal Reasoning
4. Mr. Rajeev Kumr, learned counsel for the petitioner assisted by Mr. Amlan Palit has taken the following grounds that: (i) Charge is absolutely incorrect reason being that the charge has been framed referring in the order framing charge with respect to the date of occurrence of 10.11.2016 but the petitioner has come for the first time in picture in the month of March-April, 2018 as per the prosecution version and the material gathered in course of investigation by the NIA; (ii) The ground has been taken that the chargesheet has already been submitted by the State Police in the year 2007 but without taking acquaintance of the same, the Central Government in view of the provision of Section 6(5) of the NIA Act, 2008 has handed over the investigation on its suo motu power to the NIA which cannot be permitted since once the charge sheet has been submitted there is no occasion for further investigation by the different agency; (iii) If the charge itself is contrary to the material collection in course of investigation, then why the petitioner will be forced to face the rigour of trial; 4 W.P.(Cr.) No. 226 of 2023 (iv) Placing reliance upon the judgment rendered by the Hon'ble Apex Court in Kalicharan and Ors. vs. State of Uttar Pradesh, (2023) 2 SCC 583, it has been submitted that in the aforesaid case the Hon'ble Apex Court based upon the fact that the charge itself was unfunded and not based upon the material collected has acquitted the concerned accused, the appellant of the said case. 5. Learned counsel for the petitioner, based upon the aforesaid ground has submitted that the petitioner is languishing in judicial custody in a case where there is no material collected basis upon which the charge has been framed, as such, it cannot be said to be a fair trial and in view thereof, incarceration in judicial custody is also illegal. Arguments on behalf of the Respondent: 6. Per contra, Mr. Amit Kumar Das, learned counsel for the respondent- NIA has argued that it cannot be said to be correct as has been argued on behalf of the petitioner that the charge is incorrect since the against the petitioner, the only charge is under Section 120-B of IPC and even though the imputation is there of making reference of the year 2016 and the petitioner has come in picture, as is being said, in March- April, 2018, then, the allegation of commission of offence under Section 120-B of IPC for conspiring with the other accused person cannot be said to be incorrect charge. 7. It has further been submitted that even accepting what is being contended on behalf of the petitioner to be correct for the sake of argument, even then, this writ petition cannot be allowed due to the reason that the discharge application has already been rejected by the learned Special Judge vide order dated 06.04.2021 which has not been challenged, thereafter, charge has been framed. 8. The present writ petition, according to the learned counsel for the NIA, is in the garb of challenging the order by which the discharge application has been rejected. Moreover, the aforesaid fact can well be appreciated by the learned trial court after conclusion of the trial but in
Decision
no case, the writ petition can be allowed at this stage where altogether 5 W.P.(Cr.) No. 226 of 2023 103 witnesses had already been examined and the trial is in progress for its conclusion in pursuance of the order passed by the co-ordinate Bench of this Court vide order dated 06.05.2022 passed in Cr. A (DB) No. 556 of 2020. 9. The argument has been advanced that by making reference of Section 215 and 216 of Cr.P.C. that the charge which is being framed, the same can be altered at any stage and once the charge has been framed, option left with the concerned accused person is to challenge the order framing charge or to contest the case by cross-examining the prosecution witnesses which the petitioner, at the moment, is doing and hence, it is not a case where the prayer so sought for in the writ petition is fit to be allowed. 10. It has been submitted that there is no jurisdictional error in passing the order by the Central Government to hand over the investigation under its suo motu power which is provided under Section 6(5) of the NIA Act, 2008 and merely because the charge sheet has been submitted by the State Police, there cannot be any restriction under the statute restricting the suo motu power of the Central Government to handover the investigation to the NIA in view of the provision of Section 6(5) of the NIA Act, 2008. 11. The argument has been advanced so far as the applicability of the judgment rendered by the Hon'ble Apex Court in Kalicharan and Ors. vs. State of Uttar Pradesh (supra) is concerned, in the aforesaid case, the same ended in acquittal, meaning thereby, the said judgment was not on the issue of consideration of the impropriety of the charge rather based upon illegal charge and purport of Section 313 of Cr.P.C., the judgment of conviction was quashed. But herein, the stage has not yet come, hence, the said judgment is not applicable. Analysis: 12. We have heard the learned counsel for the parties, gone across the pleading made by the parties as contained in various affidavits. 13. The undisputed fact in this case is that a criminal proceeding was set at motion on the basis of a report submitted by Officer-in-charge of Bero 6 W.P.(Cr.) No. 226 of 2023 police station. The aforesaid criminal case was instituted on the basis of an information received regarding the associates of Supremo of PLFI depositing money of crime proceeds realized as extortion of levy at SBI, Bero, Ranchi. The investigation completed and the charge sheet has also been submitted in the year 2021 but the Central Government in exercise of power conferred under Section 6(5) of the NIA Act, 2008 has handed over the investigation under its suo motu power to the NIA vide order dated 16.01.2018. After conclusion of the investigation the charge sheet was submitted on 24.11.2021 whereby and whereunder the charges which has been framed against the petitioner is as follows: “Firstly-That you, accused, on or about 10.11.2016, under Bero P.S. within Ranchi district, being an associate of PLFI hatched criminal conspiracy with accused Dinesh Gope, the chief of terrorist gang PLFI which had been declared proscribed organization by the Government of Jharkhand and other associate, members of PLFI namely Sumant Kumar @ Pawan Kumar, Nandlal Swarnakar, Chandra Shekhar Singh, Arun Gope, Jitendra Kumar and Binod Kumar and for channelizing the extorted levy amount into legitimate means through banking channel deposited them in the bank account of Hira Devi, Shakuntala Kumari and other through various banking channels using Pragya Kendra operatives and that you thereby committed an offence punishable under Section 120B of the Indian Penal Code within my cognizance. Secondly-You, on or about 10.11.2016 under Bero P.S. within Ranchi district, being an associate of PLFI a terrorist gang PLFI which had been declared proscribed organization by the Government of Jharkhand hatched the conspiracy with Dinesh Gope and other associates members of PLFI namely Sumant Kumar @ Pawan Kumar, Nandlal Swarnakar, Chandra Shekhar Singh, Arun Gope, Jitendra Kumar, Binod Kumr on the direction of Dinesh Gope formed two companies namely M/s Bhavya Engicon Pvt. Ltd. Co. and M/s Shiv Aadi Shakti Minerals Pvt. Ltd. with partnership of Shakuntala Kumari and an unregistered Palak Enterprises as a proprietor and knowingly retained the cash amount collected by the operatives of PLFI from illegitimate sources from the coal transporters/contractors/coal traders in the form of levy from commission of terrorist act and you also used them for purchasing lands, expensive cars etc. and that you thereby committed an offence punishable under Section 21 of the Unlawful Activities (Prevention) Act, 1967 within my cognizance.” 14. The main thrust of argument of the petitioner is that the date of reference as available in the first charge is dated 10.11.2016 while for the first time the name of the petitioner has come in the month of March-April, 2018 as per the statement of one of the witnesses 7 W.P.(Cr.) No. 226 of 2023 recorded. On the aforesaid ground, the very framing of charge has been questioned. 15. Further the jurisdiction of Central Government has also been questioned in handing over the investigation to the NIA and particularly the opportunity of fair trail being taken away due to wrong framing of charge. 16. This Court is of the view that the first issue regarding the jurisdictional issue which has been exercised by the Central Government under the provision of Section 6(5) of the Act, 2008 is required to be answered first since jurisdiction goes to the root of the issue. 17. The said issue is to be decided on the basis of the provision of Section 6 of the NIA Act, 2008 which reads as under: “6. Investigation of Scheduled Offences.—(1) On receipt of information and recording thereof under section 154 of the Code relating to any Scheduled Offence the officer-in-charge of the police station shall forward the report to the State Government forthwith. (2) On receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible. (3) On receipt of report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency. (4) Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence. (5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence. (6) Where any direction has been given under sub-section (4) or sub- section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency. (7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue the investigation.” 18. It is evident from the provision of sub-section (1) of Section 6 of the Act, 2008 that on receipt of information and recording thereof under section 154 of the Code relating to any Scheduled Offence the officer- 8 W.P.(Cr.) No. 226 of 2023 in-charge of the police station shall forward the report to the State Government forthwith. Sub-section (2) of Section 6 of the Act, 2008 stipulates that on receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible. Sub-section (3) of Section 6 of the Act, 2008 stipulates that on receipt of report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency. Sub-section (4) of Section 6 of the Act, 2008 stipulates that where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence. Sub-section (5) of Section 6 of the Act, 2008 stipulates that notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence. 19. Thus, it is evident that the provision of Section 6(5) of the Act, 2008 confers suo motu power upon the Central Government to handover the investigation to the NIA then under the said provision the investigation can well be handed over to the NIA with respect to the offence in which the charge sheet has also been submitted. 20. The aforesaid very issue has already been decided by the Hon'ble Apex Court in the case of Pradeep Ram vs. State of Jharkhand and Anr., (2019) 17 SCC 326, wherein the Hon'ble Apex Court has been pleased to hold that there is no bar in exercising the suo motu power 9 W.P.(Cr.) No. 226 of 2023 under the provision of Section 6(5) of the Act, 2008. Relevant paragraph of the said judgment is being referred as under: “49. We, thus, do not find any lack of jurisdiction in NIA to carry on further investigation and submit a supplementary report. In the counter-affidavit, it has been stated by the Union of India that NIA has concluded investigation and already a charge-sheet has been submitted on 21-12-2018 vide first supplementary charge-sheet. We, thus, do not find any lack of jurisdiction in the NIA to carry on further investigation in the facts of the present case.” 21. It is, thus, evident that the ground which has been taken questioning the issue of investigation having been handed over to the NIA by the Central Government is having no substance in view of the position of law having been already settled by the Hon'ble Apex Court in the case of Pradeep Ram vs. State of Jharkhand and Anr. (supra). 22. The second ground that the charge is wrong and as such the entire framing of charge and the trial is to be vitiated. 23. It needs to be referred herein that before framing charge, an application was filed for discharge under Section 227 of the Cr.P.C. but the said discharge application was rejected vide order dated 06.04.2021 and it is admitted fact that the aforesaid order refusing to discharge has not been assailed before the higher forum and thereby, the said order became final. 24. The learned trial court after rejection of the discharge application has proceeded to frame charge in view of the provision of Section 228 of Cr.P.C. and accordingly, the charge has been framed on 24.11.2021. 25. Thus, it is evident that the ground of discharge has already been dealt with by the learned trial court before framing of charge and once the same has attained its finality, the same issue cannot be allowed to be agitated by the petitioner without challenging the order by which the discharge application has already been rejected. 26. The ground which is being taken herein that the entire charge is bad in the eyes of law, as such, the entire criminal prosecution be vitiated but this Court is not impressed with this argument based upon the legal position that once the learned trial court has applied its mind refusing to discharge without assailing the said order, it is not available for the 10 W.P.(Cr.) No. 226 of 2023 litigant concerned to approach the High Court under Article 226 of the Constituting of India to quash the charge and consequential relief of quashing the entire criminal proceeding. 27. The charge now has been framed and as has been informed by the learned counsel for the respondent-NIA that the trial is at pace since 103 witnesses have already been examined in view of the direction passed by the co-ordinate Division Bench of this Court in Cr. Appeal (DB) No. 556 of 2020, whereby and wheruender, while rejecting the prayer for regular bail, this Court has directed to conclude the trial as expeditiously as possible preferably within a period of one year. 28. The petitioner against the said order has moved before the Hon'ble Apex Court by filing special leave to appeal being Special Leave Appeal (Crl.) No.5418 of 2022 wherein leave was sought for to withdraw the petition. The liberty was sought for to file application for regular bail in the High Court. Accordingly, the SLP was dismissed as withdrawn with the liberty to file regular bail in the High Court for consideration in accordance with law. 29. It has also been informed that the appellant has cross-examined the witnesses at length and as such, after examination/cross-examination of the witnesses, 103 in number, it is not available for the petitioner to raise the issue of quashing of charge at this stage. 30. So far as the charge having said to be improper, the law is already there under Section 216 of Cr.P.C. wherein charge can be altered at any stage but we are not dealing with such issue of alteration since the issue is not of alteration or addition in the charge rather the issue has been raised that charge itself is incorrect. Conclusion: 31. Since the witnesses are being examined and cross-examined, then, at this stage, it will not be proper for the High Court under its extraordinary original jurisdiction to quash the entire criminal proceeding against the petitioner. 11 W.P.(Cr.) No. 226 of 2023 32. This Court is not delving upon the issue regarding the commission of offence regarding coming into picture subsequently to the original occurrence, for the reason that if any observation will be made at this stage, the trial so far as it relates to the petitioner, will seriously be prejudiced. 33. In view thereof, this Court is of the view that the instant petition is not fit to be allowed. 34. Accordingly, the instant writ petition stands dismissed. 35. Pending interlocutory application, if any, also stands disposed of. I agree, (Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) (Pradeep Kumar Srivastava, J.) Jharkhand High Court, Ranchi Dated: 14/03/2024 Saurabh /A.F.R.