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2007 DIGILAW 421 (CHH)

VINAYAKSEN v. STATE OF C. G.

2007-07-23

SUNIL KUMAR SINHA

body2007
ORDER Shri Sunil Kumar Sinha, J.:- 1. The petitioner, who has been arrested in connection with Crime No.44/2007 registered at Police Station Ganj, Raipur, u/ss 10(a)(i), 20, 21,38,39 of the Unlawful Activities (Prevention) Act 1967 and Sections 8(1)(2)(5) of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005 (hereinafter referred to as the Act of 1967 & Act of 2005) and Section 120-B, 121-A, 124-A of I.P.C., has filed this petition u1s 439 of the Code of Criminal Procedure for grant of regular bail as he is in jail since 14.5.2007. 2. The case of the prosecution is that one Narayan Sanyal@NavinSanyal (a co-accused of this case) is kept in custody in Central Jail, Raipur. He happens to be a member of terrorist organization namely Communist Party of India (Marxist- Leninist) enlisted at Entry No. 24 of the Schedule prepared u/s 2(1)(m) & 35 of the Act, 1967. The allegations are that the petitioner is also associated with the said organization with an intention to further its activities and he supports the activities of the said organization and the works pertaining to such activities by making support to Narayan Sanyal. The specific allegations art that he used to carry the secret letters written by Narayan Sanyal to his other associates regarding monitoring of the unlawful activities of the organization and for that he met Narayan Sanyal for about 33 times in Central Jail, Raipur, in between 26.5.2006 and 30.4.2007. The further allegations are that he had arranged for a house on rent for the activities of the said organization. It is also alleged that during his meetings with Narayan Sanyal in Jail, he had planned to commit unlawful activities in the area of Chhattisgarh and was deeply involved in such acts. 3. The facts of the case are that on 06.5.2007, another co-accused Piyush Guha was caught by the Police in suspicious condition. During his search, 3 letters (one written in Bangla and two written in English) were seized from his possession. Some objectionable literatures were also seized alongwith a cash amount of Rs. 49,000/-. 3. The facts of the case are that on 06.5.2007, another co-accused Piyush Guha was caught by the Police in suspicious condition. During his search, 3 letters (one written in Bangla and two written in English) were seized from his possession. Some objectionable literatures were also seized alongwith a cash amount of Rs. 49,000/-. When he was called upon to explain the possession, he stated that Narayan Sanyal, who is in jail, is a member of the terrorist organization (enlisted vide Entry No.24 referred to above) and he is the master mind and he had given 3 letters to the petitioner for handing over them to the concerned persons and the petitioner had handed over these letters to him for its delivery. After receipt of the said information, a search was conducted in the house of the petitioner on 19.5.2007. From there, a C.P.U., was seized on the suspicion of containing secrete information pertaining to Naxalite activities. A post-card written by Narayan Sanyal to the petitioner was also seized. Besides, 8 nos. of Compact Disc (CDs.) having objectionable material pertaining to Naxalite activities, were also seized. During the course of further investigation, information from the Superintendent of Police, Rajnandgaon and the Superintendent of Police, Dantewara (South Bastar) both Naxalite affected districts were also collected which reveals the association of the petitioner in many Naxalite operations in their area According to them, when they collected/seized the objectionable materials from the possession of Naxalites, some of those objectionable materials were also related to the petitioner, which shows the association of the petitioner with the said organization, the activities of which are being monitored by Narayan Sanyal. The over all allegations are that the petitioner played a vital role in communicating the instructions of Narayan Sanyal to the field workers of the said organization and in this manner, he is promoting the Naxalite activities in the area. 4. Learned Senior Counsel for the petitioner submitted that the petitioner is a social worker. He is a medical expert and he is also the Vice President of Chhattisgarh Unit of the Peoples Union of Civil Liberties (for short the P.U.C.L). 4. Learned Senior Counsel for the petitioner submitted that the petitioner is a social worker. He is a medical expert and he is also the Vice President of Chhattisgarh Unit of the Peoples Union of Civil Liberties (for short the P.U.C.L). He submitted that merely on the allegations that he met with the co-accused Narayan Sanyal for 33 times in jail would not by itself constitute the offence under the Act of 1967 unless there is some evidence of his association with the banned organization as alleged by the prosecution. He also argued that so for as seizure of the letters from the possession of the co-accused Piyush Guha is concerned, on the statement of Piyush Guha alone it will not be prima facie held that those letters were handed over to him by the petitioner. About the seizure of articles from the house of the petitioner on 19.5.2007, he argued that hardly any objectionable article has been seized which may show his association with the terrorists or the Naxalites and there is no evidence of direct nexus of the petitioner with the said organization. So far as seizure of the Computer set and C.P.U. are concerned, he argued that the results of the contents of the C.P.U., are still awaited as is also admitted by the State Counsel, therefore, there appears to be no prima facie evidence against the petitioner and the petitioner be released on regular bail. 5. During the course of arguments, firstly, he referred to the decision rendered by the Supreme Court in the matter of Usmanbhai Dawoodbhai Memon and others Vs. State of Gujratl. In the said case, while dealing with the provisions of bail in the matter of Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short "the TADA Act") with reference to section 20(8) of the said Act, the Apex Court laid down about the approach which the designated Court has to adopt while granting bail in view of the limitations placed on such powers u/s 20(8). It was held that section 20(8) in terms places fetters on the power of a Designated Court on granting of bail and the limitations specified therein are in addition to the limitations under the Code of Criminal Procedure. It was held that section 20(8) in terms places fetters on the power of a Designated Court on granting of bail and the limitations specified therein are in addition to the limitations under the Code of Criminal Procedure. Under Section 20(8), no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bailor on his own bond unless the two conditions specified in clauses (a) and (b) are satisfied. The Apex Court stated that in view of these more stringent conditions a Designated Court should carefully examine every case coming before it for finding out whether the provisions of the Act apply or not. It further said that since before granting bail the court is called upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail, the allegations of fact, the police report along with the statements in the case diary and other available materials should be closely examined and a prayer for bail ought not to be rejected in a mechanical manner. 6. I have keenly examined the provisions of the Act of 1967 as also the local Act of2005 and I do not find any such clause as section 20(8) of the TADA Act 1987. However, there are miscellaneous provisions in the present Act of 1967 in Chapter VII vide sections 44 to 47. Section 44 deals with the protection of witnesses along-with a provision to take a camera proceedings as also to hold the proceedings at a place to be decided by the Court and avoiding mention of the name and addresses of the witnesses in the orders or Judgments or in any record of the case accessible to the public. Section 46 deals with the admissibility of the evidence collected through the interception of communications and section 47 deals with the bar of jurisdiction with certain specific provisions. Section 46 deals with the admissibility of the evidence collected through the interception of communications and section 47 deals with the bar of jurisdiction with certain specific provisions. Therefore, a general approach has to be given to the matter of bail under the present Act keeping in mind the gravity of the offence and the miscellaneous provisions referred to above for conduction of the trial of such cases with an attention to the special provisions regarding admissibility of evidence collected through the interception of communications, which shall also be utilized to determine the prima facie case in such offences. 7. Secondly, he referred to the judgment of the Apex Court rendered in the matter of R.K. Krishna Kumar Vs. State of Assam and others & 3 other connected appeals', in which after due consideration off acts, the Apex Court held that prima facie, a case u1s 10 of the Act of 1967 was made out against the appellants as they had assisted the operations of the unlawful association and no other offence was made out and the offence u1s 10 of the Act being a bailable offence, provisions of anticipatory bail would not be applicable. The ratio of this case is not helpful to the petitioner of the present case because this is an application for grant of regular bail and apart from section 10 of the said Act, there are also allegations pertaining to other sections in which the punishments are more and they would be the non-bailable offences. 8. Learned senior counsel then referred to two decisions rendered in the matters of Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra and another and Chenna Boyanna Krishna Yadav Vs. State of Maharashtra and another. In the former case, he has drawn attention of this Court towards Para 35 in which referring to the decision rendered in the matter of Narendra Singh Vs. State of M.P, the Apex Court said "That presumption of innocence is a human right. Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefor." The Apex Court said "that sub-section (4) of section 21 must be interpreted keeping in view the aforementioned salutary principles. Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefor." The Apex Court said "that sub-section (4) of section 21 must be interpreted keeping in view the aforementioned salutary principles. Giving an opportunity to the Public Prosecutor to oppose an application for release of an accused appears to be reasonable restriction but clause (b) of sub-section (4) of section 2,1 must be given a proper meaning." In the latter case, the Apex said "That grant of bail in cases of offences under the Maharashtra Control of Organized Crimes Act, .1999 (for short ,"MCOCA"), cumulative conditions applicable are satisfaction of Court that there are reasonable grounds for believing that accused is not guilty of the' alleged offence, and that he is not likely to commit any offence while on bail. The Apex Court said that it is plain from a bare reading of the non obstante clause in Section 21(4) of MCOCA that the power to grant bail by the High Court or the Court of Session is not only subject to the limitations imposed by Section 439 Cr.P.C. but is also subject to the limitations placed by Section 21 (4) of MCOCA. The Apex Court said that at this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offences under Section 3(2) or Section 24 of MCOCA. What is to be seen is whether there is a reasonable ground for believing that the accused is not guilty of the two offences he has been charged with, and further that he is not likely to commit an offence under MCOCA while on bail." As I have already expressed with reference to the first judgment cited by Shri Tiwari that there is no such nonobstante clause in the present two Acts, to which we are concerned, therefore, the general provisions of the Code of Criminal Procedure are to be applied for grant of bail with no reasonable restrictions as are there in the MCOCA or TADA. 9. He then referred to the judgment of State of U.P. Vs. Amarmtmi Tripathi. 9. He then referred to the judgment of State of U.P. Vs. Amarmtmi Tripathi. In the said judgment the Apex Co relying on various other judgments, laid down that the matters to be considered in an application for bail are (0 whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, or course, of justice being thwarted by grant of bail. 10. Lastly, on the allegations pertaining to criminal conspiracy etc.. learned Senior Counsel cited the decision in the matter of Nazir Khan and others Vs. State of Delhi'. It was held by the Apex Court in the said decision that it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Privacy and secrecy are more characteristic of a conspiracy, than of a loud discussion in an elevated place open to public view. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out all this is necessarily a matter of inference. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. The Apex Court, therefore, laid down that there is no difference between the mode of proof of the offence of conspiracy and that of any other offence. It can be established by direct or circumstantial evidence. 11. On the other hand, learned Addl. Advocate General opposed these arguments. He referred to the contents of the F.I.R., as also the statement of witness Gopanna, contents of seized letters as also contents of the reports of the Superintendent of Police, Bijapur and the records of the Central Jail Raipur, showing about the meeting of Narayan Sanyal and the petitioner. On the other hand, learned Addl. Advocate General opposed these arguments. He referred to the contents of the F.I.R., as also the statement of witness Gopanna, contents of seized letters as also contents of the reports of the Superintendent of Police, Bijapur and the records of the Central Jail Raipur, showing about the meeting of Narayan Sanyal and the petitioner. His submission was that in fact the petitioner was associated with Narayan Sanyal and he was also associated with the said organization and was working to support the activities of the said organization, for which he would be liable for punishment under the provisions of section 38 & 39 of the Act of 1967 as also under the provisions of Sections 8(1)(2)(3) & (5) of the State Act 2005. So far evidence of criminal conspiracy etc is concerned, he also relied on the same decision which was relied upon by learned Sr. Advocate for the petitioner in the matter of Nazir Khan 7 (supra). 12. I have heard learned counsel for the parties at length and have also perused the records produced before me. 13. So far as the matter of grant of bail in connection with the offences under the Act of 1967 or the State Act 2005 is concerned, they do not have any non-obstante clause as are there in TADA or in MCOCA and there are no such reasonable restrictions under the present Act, therefore, the application for grant of bail in this matter has to be considered on general principles and the jurisdiction for grant of bail has to be exercised on the basis of well settled principles having regard to the circumstances of this particular case, that is, keeping in mind the nature of accusations, the nature of evidence in support thereof, severity of punishment which conviction entail, the character, behaviour means and standing of the accused and while exercising such discretion, a judicious approach has to be given though there is no necessity to do detailed examination of evidence and documentation of merit of the case, but the material produced are to be considered for the purpose of prima facie case and a reason has to be assigned for prima facie conclusion keeping in mind further considerations as are laid down in Amarmani Tripathi's case (supra). 14. If we look into the evidence of instance case, prima facie the contents of the two letters. 14. If we look into the evidence of instance case, prima facie the contents of the two letters. written in English, would show that they have been written about certain activities of the concerned group at many places. In one letter, there is a mention about Jan Adalat and also about beatings and killing of two persons. Though these letters have not been signed and shown to be written by a particular person but their contents would show that they have been written to particular persons who are termed as "P'" and "V" etc. These letters also contain further directions as if certain activities are being monitored by the writer of the leller. The specimen handwriting has been taken from the co-accused Narayan Sanyal and an opinion has been obtained to the effect that the letters have been written by him. About the seizure of these letters from the possession of the co-accused Piyush and the statement made by Piyush that these letters were written by Narayan Sanyal and were handed over to him by the petitioner, two witnesses namely Anil Kumar and Rajesh Gupta have been examined. About making the house available to Narayan Sanyal on rent there is statement of one Deepak Choubey in which it comes that the house was given on the recommendations of the present petitioner. So far as the evidence of association of Narayan Sanyal with the banned organization is concerned, there is statement of one Gopanna@ Gajjala Satyam Reddi, who happens to be a member of Dandakaranya Zonal Committee. He stated that he is associated with the banned organization and by giving detailed information he has further stated that Narayan Sanyal is the member of the Polith Bureau of the banned organization and they all are indulged in various Naxalite activities. Apart from this, the reports from Superintendent of Police, Dantewara & Superintendent of Polio, Rajnandgaon, have been collected in which it is mentioned that the name of this petitioner comes in various Naxalite Literatures seized during the course of investigation of Naxalites cases in their districts. 15. In view of the above, there appears to be a prima facie case against the petitioner showing that he was associated with the banned organization and was indulged in helping and supporting the said organization in the manner indicated above. 16. 15. In view of the above, there appears to be a prima facie case against the petitioner showing that he was associated with the banned organization and was indulged in helping and supporting the said organization in the manner indicated above. 16. Since there appears to be a prima facie case against the petitioner under the aforementioned offences, I do not find it proper to release the petitioner on bail. His application filed u/s 439 Cr.P.C., is dismissed. Petition Dismissed.