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2010 DIGILAW 1849 (ALL)

Seema Azad v. State of U. P.

2010-05-28

A.P.SAHI

body2010
Hon'ble A.P. Sahi, J:- Heard Sri Ravi Kiran Jain, Sri D.S. Mishra assisted by Sri Ankur Sharma for the applicant and Sri J.P.N. Raj for the State. 2. The applicant and her husband Sri Vishwa Vijay @ Kamal are sought to be prosecuted by the State in Case Crime No. 37 of 2010 under the provisions of the Unlawful Activities (Prevention) Act, 1967 read with a couple of Sections under the Indian Penal Code. The unlawful activities in essence are said to be related to an association of individuals connected with the Communist Party of India (Maoist), now included as a Terrorist Organization in The Schedule appended to the 1967 Act under a notification dated 22.6.2009. 3. The present bail application is on behalf of the applicant Smt. Seema Azad wife of Vishwa Vijay stated to be operating along with her husband in the aforesaid unlawful activities of spreading violence and instigating the public at large to wage war against the State. The activities of the applicant are alleged to have its connections with such similarly involved persons and their linkage is alleged to be established through evidence discovered by the investigating agency. For this a recovery of substantial material in the form of printed pamphlets and booklets containing intimidating and incriminating literature is said to have been made from the applicant as well. Apart from this a couple of witnesses who have given the statement identifying the applicant and her husband is the evidence which has been collected to have given rise to the prosecution and the consequential arrest of the applicant. 4. Sections under which the applicant is sought to be prosecuted are Sections 18/20/21/23(2) of the Unlawful Activities Act, 1967 read with Sections 120-B/121/121-A of the Indian Penal Code. The allegations are in essence of the applicant being involved in a conspiracy of terrorist activities and aiding and abetting them. 5. The applicant in Paragraph 26 of her application admits herself to be the organizing Secretary of the U.P. Chapter of People's Unions For Civil Liberties. The said organization is said to be founded by the Late Sri Jai Prakash Narain and an eminent jurist Sri V.M. Tarkunde was its founder president. 5. The applicant in Paragraph 26 of her application admits herself to be the organizing Secretary of the U.P. Chapter of People's Unions For Civil Liberties. The said organization is said to be founded by the Late Sri Jai Prakash Narain and an eminent jurist Sri V.M. Tarkunde was its founder president. The applicant, being an influential person by virtue of her such position, has been charged with offences which are not even remotely made out and as a matter of fact the applicant is sought to be prosecuted because of her alleged connections which is nothing else but a mere political association with no connection with any terrorist activity. 6. According to the applicant the word "Maoist" does not by itself include a Naxalite and the whole story has been widely reported as if the applicant and her husband were involved in an internal war against the State. It has also been stated that the applicant and the co-accused are not required for any further investigation and the police had sought remand which was rejected by the Magistrate and the revision filed by the State has also been dismissed. 7. It may be noted at this stage that the State filed an application under Section 482 Cr.P.C. being Criminal Misc. Application No. 9106 of 2010 in which a direction has been issued to the Learned Magistrate concerned to reconsider the application for police remand by passing a fresh order in accordance with law. The order earlier passed by the Magistrate on 6.3.2010 were set aside. It is further directed that the Magistrate shall proceed to pass the order of remand ignoring the earlier refusal on the first application as noted above. 8. Sri D.S. Mishra learned counsel for the applicant invited the attention of the Court to the order dated 23.4.2010 passed in the same matter whereby the learned Single Judge who had passed the order in Section 482 Cr.P.C. on 19.4.2010. The matter was again heard on a recall application filed by the applicant whereby the learned Single Judge directed the Magistrate not to pass any effective orders on the remand application. The matter was posted for final hearing on 10.5.2010 and orders have been reserved on 20.5.2010. It is stated at the bar that no orders have been passed till date. 9. The matter was posted for final hearing on 10.5.2010 and orders have been reserved on 20.5.2010. It is stated at the bar that no orders have been passed till date. 9. Sri Mishra has relied on several decisions of the Apex Court and has also urged that if the procedure prescribed in law has not been followed then it violates the principle laid down by the several courts that if a thing is prescribed to be done in a particular manner then it should be done in that manner alone. 10. The applicant contends that she is being prosecuted almost entirely on account of the statement of the co-accused namely her husband. This according to the learned counsel is in violation of Articles 20, 21 and 22 of the Constitution of India and such statement of the co-accused at the stage of the investigation cannot be read against the applicant. The allegations according to the applicant are reckless and without any basis. 11. The applicant has further submitted that she is the Editor of Monthly Magazine "Dastak" which has a wide circulation. It expresses the political views as well as individual opinions on social aspects which may be described as a fair criticism of the system of governance of this country. 12. It is further submitted that the applicant being well educated is aware of the responsible statements which have been made by her through the publications and the applicant has no criminal antecedents so as to involve her in an offence of treason. 13. The prosecution through the learned A.G.A. contends that the recovery of the material which is on record during investigation unquestionably demonstrates that the applicant is intricately involved in the organization, propagation and indoctrination of the incriminating material which has been found in order to incite feelings, against a democratically and constitutionally established valid Government, through unlawful means and therefore it is a clear act of terrorism. 14. Learned A.G.A. submits that such activities by educated persons is more inflammatory and has a wide ranging impact on lesser educated masses. Individuals like the applicant who have a powerful bent mind are able to persuade and the idea is not only to propagate a political ideology but also to prepare people for an armed conflict through dubious methods in order to destroy the very foundation of democracy and to upturn a democratically elected Government. 15. Individuals like the applicant who have a powerful bent mind are able to persuade and the idea is not only to propagate a political ideology but also to prepare people for an armed conflict through dubious methods in order to destroy the very foundation of democracy and to upturn a democratically elected Government. 15. Learned A.G.A. invited the attention of the Court in two judgments of the Supreme Court in the case of State of Maharashtra Vs. Dhanendra Shriram Bhurle, reported in (2009) 11 SCC 541 decided on 11th February, 2009, and in the case of Redaul Husain Khan Vs. National Investigating Agency, reported in (2010) 1 SCC 521 decided on 19.11.2009. Apart from this learned A.G.A. submits that a request for extending the time for further investigation has been granted as per the provisions of the 1967 Act for 180 days which period will now come to an end on 3rd August, 2010 and, therefore, the bail should be refused at this stage on this ground alone. He submits that this further investigation had become necessary as the recital in the F.I.R. discloses the name of one Sri Balraj who has also been arrested and from the recovery of his electronic gadgets like his Laptop and certain Compact Discs there is further evidence that may link the applicant with a far wider range of such terrorist activity being carried out through out the nation including the sensitive places of Chhatisgarh, Lalgarh as well as Andhra Pradesh and pockets of Uttar Pradesh. Learned A.G.A., therefore, has sounded a caution to be observed in this matter which clearly involves the sovereignty, integrity and security of the entire nation. Learned A.G.A. submits that the activities of the applicant are subversive of a peaceful society and clearly tainted and aimed to encourage terrorism through unlawful violent means. This in his submission is outrageous and cannot be pardoned or condoned on any slight pretext. He further submits that the release of the applicant would be detrimental for further investigation and would impede the progress which has been made uptil now. 16. The contention advanced is that the such activities have disturbed the peaceful life of the entire nation and therefore, this huge dimension of the crime should not be underestimated with any compassion in favour of the applicant. 16. The contention advanced is that the such activities have disturbed the peaceful life of the entire nation and therefore, this huge dimension of the crime should not be underestimated with any compassion in favour of the applicant. The submission is that the Government is already facing huge obstacles on the administrative side in proceeding to tackle this ongrowing menace of terrorism and therefore release of the applicant would be not only against the interest of justice but also against the interest of the society at large. 17. Sri Daya Shankar Mishra, learned counsel for the applicant invited the attention of the Court to the First Information Report to contend that the place and time of the arrest of the applicant and the timing of the F.I.R. keeping in view the distance of the Police Station from the scene of occurrence is worth noting. He submits that the applicant is stated to have been picked up from the vicinity of the gates of Jal Sansthan which is right in front of the Allahabad Junction Railway Station at about 9.30 pm at night. At this point of time there is a huge rush of passengers coming and moving continuously, together with the movement of a large number of vehicles. He submits that the place of arrest is therefore conspicuous because of large movements aforesaid and is not an insignificant or unnoticed place. The vicinity has the presence of a huge crowd and there is a Crossing nearby leading several roads towards the city side with a considerable amount of traffic on it. He submits that if the arrest was made at 9.30 pm and the Police Station, Khuldabad is just 800 meters away, it is not understood as to why the timing of the F.I.R. is almost after 2 and ½ hours of the arrest. He submits that the preparation of the F.I.R. at the time of arrest or even in a close proximity makes it doubtful and he contends that the F.I.R. was prepared much later than the date and time as indicated therein. 18. He further submits that in view of the location of the scene of arrest it is strange that no independent public witnesses are either named in the F.I.R. or even mentioned for the sake of name having refused to become a witness. 18. He further submits that in view of the location of the scene of arrest it is strange that no independent public witnesses are either named in the F.I.R. or even mentioned for the sake of name having refused to become a witness. Not only this even the statements of the prosecution witnesses who are the Police Officials do not indicate any such recital. Accordingly, he submits that the very place of arrest in the aforesaid manner becomes highly doubtful. 19. Sri Mishra further submits that the manner in which the memo of arrest has been prepared indicates that the information would be tendered in future and if the information was to be given in future it is strange as to how it bears the signatures of the accused-applicant. He submits that even this document was prepared by the Police without taking care of the niceties of law. Sri Mishra further submits that the provisions of Section 100 Cr.P.C. have not been observed or followed and even if some of the provisions are directory the authority is bound to comply with the same. 20. Sri Mishra then next submitted that no full particulars were disclosed to the applicant and the action of taking the applicant into custody was in violation of Article 22 of the Constitution of India read with Section 50-A of the Criminal Procedure Code. According to him there is a total non-compliance of the said provisions and therefore, the detention and arrest is unlawful as it does not prescribe to the procedure laid down in law. 21. Coming to the provisions of the Unlawful Prevention of Activities Act, 1967, Sri Mishra submits that no ingredients of Sections 18, 20, 21 or 23 of the Act are available on the allegations made in the F.I.R. nor is there any evidence collected by the prosecution which may even remotely support the same. The applicant is neither a member of a terrorist gang nor a member of the terrorist organization. He submits that there is no such recital in the F.I.R. and in the absence of any such material to corroborate such allegations the story set up by the prosecution must fail. 22. He further submits that even though the provision relating to conspiracy is contained in Section 18 of the Act for reasons best known to the prosecution Section 120-B has been mentioned. 22. He further submits that even though the provision relating to conspiracy is contained in Section 18 of the Act for reasons best known to the prosecution Section 120-B has been mentioned. He submits that for a conspiracy there has to be meetings of mind with preintention to commit an offence. In the instant case there is no such ingredient so as to attract the Section 120-B of the Indian Penal Code. The contention is that at best Section 120-A may be attracted which is a bailable offence. 23. On the strength of the said submissions Sri Mishra inviting the attention of the Court to Section 43-D of the Act contends that if the substantive offences against the applicant are not made out then the argument of the prosecution that they had the authority to extend the period of investigation is not available. He therefore submits that the aforesaid argument that they have a right to proceed to investigate for a further period of 180 days under the proviso of the aforesaid section is not available. 24. Learned counsel contends that the prosecution had attempted to increase the period of remand in police custody which was refused by the Magistrate and revision filed against the same has been dismissed. He further submits that a 482 petition was filed by the State in which certain directions were issued without issuing any notice to the applicant who was made a party and upon having come to know the applicant moved an application as a result whereof the direction contained in the application under Section 482 Cr.P.C. has been stayed by the Court and orders have been reserved as noted above. 25. Sri Mishra then urged that the notification which has declared the Communist Party of India (Maoist) and its other associated organizations to be an unlawful association is through an invalid notification inasmuch as the notification was not preceded by any exercise by the Central Government as contemplated under Sections 4 and 5 of 1967 Act. In this view of the matter the notification relied upon in the counter affidavit has no force of law. 26. The investigation should find material to give a direction to establish the prosecution story firmly at least in a prima facie manner. It should lead to somewhere and not nowhere. In this view of the matter the notification relied upon in the counter affidavit has no force of law. 26. The investigation should find material to give a direction to establish the prosecution story firmly at least in a prima facie manner. It should lead to somewhere and not nowhere. The pursuit of the prosecution cannot be a chase of a mirage but with some definite horizons. The links should appear to be real and the corroborative material an indicator towards the commission of the offence by the accused. It has to at least blink, if not a bright search light focus. The evidence if weak cannot bring about clarity that may prove fatal to the prosecution. An act of treason or high treason usually involves conspiracy which commences with meeting of minds. Section 18 of the 1967 Act points out the broad ingredients and any evidence collected has to fall within its definition so as to constitute terrorist conspiracy. 27. The F.I.R. is no encyclopaedia but the case diary is the basis of the charge that may bring home the conviction of the accused with the aid of evidence led during trial. All combined it has to be as clear as the night sky in the summers or as clear as daylight. In both cases it is the impact of the Sun whose energy is the source of the best disinfectant. This is how truth can be discovered and deciphered from any imagination or hearsay. The tool of an honest and vigorous investigation is that source in a criminal trial as witnesses during trial waver and have to be tested before being accepted. It is the truthfulness of the evidence collected during investigation that plays a vital role in either bringing home the charge or acquittal. 28. The Supreme Court has cautioned Judges from expressing opinions formed on the strength of news reports. In the case at hand, it is this printed material, particularly the magazine 'Dastak' edited by the applicant which is one of the material against the applicant. This is evidence and not a mere newspaper report for consumption of the public at large. The Court has to look into this material to gather a prima facie opinion of the commission of the offence. This is evidence and not a mere newspaper report for consumption of the public at large. The Court has to look into this material to gather a prima facie opinion of the commission of the offence. The Court has therefore not to merely see but also hear both sides on the material collected which has been projected as cogent evidence to establish a prima facie case for prosecution and trial. 29. The State alleges that the nation is facing a wider problem than what is perceived. The indication is that a certain section of the population is in the grip of a revolutionary cult, which in the name of malgovernance and failure to deliver social justice to the poor masses, has led to them to associate with violence. The older hands of such an organization lure and draw youngsters of tender age towards such activities with tall promises of improving their lot. They are the brains who always prefer to work from behind pushing their dupes towards destruction. This cult of violence is being preached to take hold of the young impressionable minds and is a cloak for furthering their own cause to have power through such violent methods. Their leaders are gifted sons possessing a rare power of analysis and oratory who with their able and forceful speeches and writings incite people to a frenzy instigating them to do everything through this revolutionary psychology to make the wheels of a popularly elected and established administration unworkable. The State contends that the material that has been recovered contains spurious logic aimed at treason. Allowing such people to live free and operate by their polluted ideals and wishes would be worse than folly. They have plunged the country in a morass of blood. They operate burrowed underground making misuse of their volunteers. They propagate a spirit of defiance to a legally constituted authority. This takes them to lawlessness with a deliberate departure from the path of non-violence. They should not be given time to allow them to discover their mistakes. This would be misplaced compassion and sympathy and against any logical strategy in the larger interest of the nation. They should not be given applause or encouragement in any form as it may lead to the slaughter and not legitimate sacrifice of innocent souls. 30. They should not be given time to allow them to discover their mistakes. This would be misplaced compassion and sympathy and against any logical strategy in the larger interest of the nation. They should not be given applause or encouragement in any form as it may lead to the slaughter and not legitimate sacrifice of innocent souls. 30. The applicant counters this by describing the act of the State as a State-sponsored terror mechanism to crush political opponents whereas the organisation to which the applicant belongs has nurtured its activities which would bring about a true symphony of life that would in turn knit humanity into an organic whole. This is a new awakening that would give the nation a new outlook with a clear denial to extremism coupled with violence. Terrorism will only lead us to a blind alley confusing the issue before the nation and set back the clock of India's progress. 31. The material which has been collected by the Investigating Agency is alleged to have been in the possession of the applicant's husband in a green bag of Gandhi Ashram. Sri Mishra contends that this material was not found in the possession of the applicant and the aforesaid material coupled with the confessional statement of the husband with the applicant who is a co-accused is sought to be utilized against the applicant. On a query made from Sri Mishra he contends that there is no indication of the denomination of the notes in the recovery memo or the source of their arrival. He further submits that there is no indication or any material that may indicate that the money was to be utilized for terrorist activities. The money is not alleged to have been obtained either by extortion or by any other method which may be suggestive of the same to be a fund of a terrorist organization. He further submits that there is no indication or any material that may indicate that the money was to be utilized for terrorist activities. The money is not alleged to have been obtained either by extortion or by any other method which may be suggestive of the same to be a fund of a terrorist organization. Sri Mishra vehemently contended that the Arresting Officer who prepared the memo of arrest and got the F.I.R. lodged did not make any mention of the aforesaid facts and it is only after the F.I.R. was lodged that in a query alleged to have been made by the Investigating Officer that a statement was made by the Arresting Officer that it was by mistake that he did not mention the aforesaid facts either in the memo of arrest or the F.I.R. Sri Mishra submits that such a concoction does not get explained keeping in view the fact that two and half hours were taken by the Arresting Officer to reach the Police Station which is 800 meters away and inspite of this expanse of time available he forgot to mention these small details which even in petty crimes of gambling is mentioned by the police at the time of the arrest or lodging of the F.I.R. 32. The Court wanted to know as to what was the explanation about the possession of the said amount by the applicant, Sri Mishtra contends that the applicant reserves her right of silence as it is not necessary for the applicant to disclose her defence at this stage of bail. 33. Having assessed the aforesaid submission the argument on behalf of the applicant is that there is a shaky and freak evidence which is being utilized for detaining the applicant. It is submitted by Sri Mishra that as a matter of fact the mere possession of the pamphlets in the bag which was hung around the shoulder of the applicant's husband would not constitute any material much less sufficient material to establish a prima facie case against the applicant. The subsequent investigation which is allegedly going on has not brought about any results or any additional material to corroborate the allegations against the applicant. In such a situation the applicant is entitled for bail. 34. The subsequent investigation which is allegedly going on has not brought about any results or any additional material to corroborate the allegations against the applicant. In such a situation the applicant is entitled for bail. 34. On the other hand the prosecution counsel Sri J.P.N. Raj vehemently submits that the applicant in association with her husband and in his company has been found with the material which has been discovered and the previous arrest of one Mr. Balraj has also led to indicators about the involvement of the applicant in terrorist activities which are reflected in the pamphlets and referred to as items No. 1 to 5 in the F.I.R. Sri J.P.N. Raj however, submits that the investigation was unable to proceed more effectively on account of the refusal of remand by the learned Magistrate which has now been directed to be looked into by this Court in the order dated 19.4.2010 in Criminal Misc. Application No. 9106 of 2010 in the exercise of inherent jurisdiction under Section 482 Cr.P.C. He submits that once the prosecution succeeds in getting a remand order from the Magistrate there is no doubt that with an opportunity of direct investigation of the accused they would be available more substantial material apart from what has already been collected to clinch the association of the applicant with the activities of the organization known as Communist Party of India (Maoist) and its other associated organisations. He submits that the pamphlets which have been recovered and the magazine "Dastak" with the applicant as its editor would leave no room for doubt that they cater to the said terrorist organisation. He, therefore, submits that since the question of remand is still engaging the active consideration of this Court and the learned Magistrate, which is to be shortly resolved the bail of the applicant should be deferred. The submission of Sri Ravi Kiran Jain that was raised on an earlier occasion while the matter was being heard was to the effect that Section 10 at best could be attracted and the other provisions are not attracted at all. It is to be noted that the applicant is not sought to be prosecuted under Section 10 of the Act and the F.I.R. does not mention Section 10 at all. 35. It is to be noted that the applicant is not sought to be prosecuted under Section 10 of the Act and the F.I.R. does not mention Section 10 at all. 35. There is one issue which deserves to be clarified at this stage as advanced by Sri Mishra is that relating to the notification under Section 35 of the 1967 Act whereby the organisation presently in question has been included in the schedule. The said notification dated 22nd June, 2009 is Annexure-1 to the counter affidavit. This is a matter relating to a terrorist organization as provided for under Chapter IV read with Chapter VI of the 1967 Act. In such a situation the argument of Sri Mishra that Sections 4 and 5 have not been followed and the notifications have not been observed in accordance with Section 3 of the Act cannot be pressed into service as they relate to unlawful associations only as defined in Section 2(p) of the Act read with the definition of Unlawful Activity under Section 2(o) of the Act. 36. The instant case is a prosecution under Chapter IV which indicates punishment for terrorist activities and the organisations relating to such activities are referred to in the schedule. The schedule, therefore, relates to the terrorist activities under Chapter IV and an amendment in the same would be brought about under Section 35 of the Act which is not concerned with Unlawful Associations under Chapter II. However, this argument shall be finally dealt with as and when the bail matter comes up for disposal. 37. Having considered the aforesaid submissions, this Court finds that the order in Criminal Misc. Application No. 9106 coupled with the subsequent order dated 23.4.2010 and the outcome of the final order to be passed thereon will have a direct bearing on the release or otherwise of the applicant. In this view of the matter I agree with the request of the learned A.G.A that the hearing of this bail application should be deferred till orders are passed in the application under Section 482 Cr.P.C. in which orders have been reserved on 20.5.2010 while hearing the recall application. 38. Accordingly the matter is deferred subject to the condition that the parties will be at liberty to move an application for hearing of this bail application immediately after orders are passed in Criminal Misc. Application No. 9106 of 2010. 38. Accordingly the matter is deferred subject to the condition that the parties will be at liberty to move an application for hearing of this bail application immediately after orders are passed in Criminal Misc. Application No. 9106 of 2010. The applicant will be at liberty through her counsel to move an application for hearing of this bail application as and when such orders passed for fixing the date in the matter. The matter shall then be listed before the appropriate bench as and when such an application is moved.