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Jharkhand High Court · body

2009 DIGILAW 1485 (JHR)

Ashish Sharma v. State of Jharkhand

2009-11-20

R.R.PRASAD

body2009
JUDGMENT On getting secret information, that some materials to be used by the extremists for strengthening communication system have reached to Air India Office, Ranchi from Delhi, the Officer In-charge, Chutia Police Station-respondent no. 2 along with police party reached to the office of Air India, Ranchi and found this petitioner and one other person present over there, who had taken delivery of those materials. On being quizzed, they disclosed that they had received it at the instance of one Naresh Sharma, Proprietor of M/s Shekhar Construction Pvt. Ltd., Daltonganj, and they would take it to his house at Ashok Nagar Ranchi. They also told to the police officials that said Naresh Sharma is presently residing at Daltonganj. Thereafter, the materials, such as Walkie Talkie, 60 in numbers, Transistors, Micro Cassettes Recorders, Contact Antenna etc. were seized. After seizure of those materials, Officer In-charge of Chutia P.S. on the direction of the superior police officials came to Daltonganj and took Naresh Sharma in custodywho on interrogation confessed that those materials had been brought for giving it to Sandeep Jee and Prashant Jee, who are members of Central Committee of an extremist group, and those two persons, who had received those articles at Ranchi, were well aware of this fact. On the disclosure made by said Naresh Sharma, one bullet proof jacket, brought from Delhi for giving it to them, was also seized from the house of Naresh Sharma. On getting these informations, this petitioner and other person including Naresh Sharma were arrested and a case was registered as Chutia P Case .S. No. 136 of 2009 under Section 13(2) of the Unlawful Activities (Prevention) Act, 1967 and also under Section 17 of the C.L.A. Act against them. On completion of the investigation, the police submitted charge-sheet on the basis of which learned Chief Judicial Magistrate, Ranchi by its order dated 17.9.2009 took cognizance of the offences under Section 13(2) of the Unlawful Activities (Prevention) Act, 1967 as well as under Section 17 of the C.L.A. Act against the petitioner and other accused persons. On completion of the investigation, the police submitted charge-sheet on the basis of which learned Chief Judicial Magistrate, Ranchi by its order dated 17.9.2009 took cognizance of the offences under Section 13(2) of the Unlawful Activities (Prevention) Act, 1967 as well as under Section 17 of the C.L.A. Act against the petitioner and other accused persons. Being aggrieved with the said order, this writ application has been filed, wherein the order taking cognizance has been challenged to be bad, as according to the learned counsel for the petitioner, learned Chief Judicial Magistrate, Ranchi took cognizance of the offences under Section 13(2) of the Unlawful Activities (Prevention) Act, 1967 as well as under Section 17 of the C.L.A. Act without there being any sanction by the competent authority, whereas sanction from the competent authority is a condition precedent for taking cognizance of offences under the Unlawful Activities (Prevention) Act, 1967. Learned counsel appearing for the petitioner submits that as per the case of the prosecution, this petitioner had received certain materials meant to be used for the purpose of communication, but he was quite ignorant that the same was meant to be used by the members of extremist group banned by the Government, and as such, this petitioner cannot be held liable for the offence either under Section 13(2) of the Unlawful Activities (Prevention) Act, 1967 or under Section 17 of the C.L.A. Act and as such, the order taking cognizance is bad on this count. In this regard, it was further submitted that once the order taking cognizance is found to be bad, the petitioner is entitled to be released on bail. Having heard learned counsel appearing for the parties, it does appear that the police after investigating the case found the allegations, levelled in the FIR, to be true and hence, submitted charge-sheet upon which, cognizance of the offence was taken by learned Chief Judicial Magistrate, Ranchi under Section 13(2) of the Unlawful Activities (Prevention) Act, 1967 as well as under Section 17 of the C.L.A. Act, but admittedly, sanction required for the prosecution of the persons for the offence relating to Unlawful Activities (Prevention) Act was not there before the court taking cognizance, though the same in terms of the provisions, as contained in Section 45 of the Unlawful Activities (Prevention) Act, was a condition precedent for taking cognizance of the offence under the said Act. Therefore, order taking cognizance under Section 13(2) of the Unlawful Activities (Prevention) Act, 1967 is quite bad. However, I do not find any illegality in the order taking cognizance so far as the offence under Section 17 of the C.L.A. is concerned, as the act, allegedly done by the petitioner, is fully covered under Section 17 of the C.L.A. Act, which reads as follows :- "Penalties.-- (1) Whoever is a member of an unlawful association, or takes part in meetings of any such association, or contributes or receives or solicits any contribution for the purpose of any such association, in any way assists the operations of any such association, shall be punished with imprisonment for a term which may extend to six months, or with fine, or with both. (2) Whoever manages or assists in the management of an unlawful association, or promotes or assists in promoting a meeting of any such association, or of any members thereof as such members, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both. (3) An offence under sub-section (1) shall be cognizable by the police, and notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898) shall be non- bailable. On going through the FIR, I do find that the co-accused has confessed before the police that this petitioner was knowing fully well that the materials, which he had received, had been brought for the use of the members associated with the extremist group and as such, I do not find any illegality in the order, under which cognizance of the offence has been taken under Section 17 of the C.L.A. Act. Accordingly, only part of the order dated 17.09.2009, under which cognizance of the offence has been taken under Section 13(2) of the Unlawful Activities (Prevention) Act, being found bad, is hereby set aside. In the result, this writ application is partly allowed.