Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 1349 (ALL)

Mantu Sharma @ Sanjai Singh v. State of U. P.

2017-05-19

MAHENDRA DAYAL

body2017
JUDGMENT : Mahendra Dayal, J. Since a common question of law as well as facts is involved in both the aforesaid criminal cases, therefore they are being heard together and decided by a common judgment. 2. Heard Shri I.B. Singh, learned Senior Advocate, assisted by Shri Sajeet Kumar, learned counsel for the applicant, Shri Umesh Verma, learned Additional Government Advocate and Miss. Shikha Sinha, learned counsel appearing for National Investigating Agency and Shri Brijendra Vikram Singh, learned counsel for Union of India and perused the record. 3. Criminal Misc. Case No. 2424 of 2016 has been filed by Mantu Sharma @ Sanjay Singh for quashing of the order for framing of charge dated 22.12.2015 as well as the charges framed by Additional Sessions Judge, Court No.9/ Special Judge, Gangsters Act, Lucknow in Sessions Trial No. 296 of 2015, arising out of Crime No. 1/2013, under Sections 420, 467, 468, 471, 120-B and 121-A and 122 IPC and Sections 3/5/15/30/35 Arms Act, relating to ATS, District Lucknow. A prayer for quashing of the entire proceedings of Sessions Trial No. 296 of 2015, has also been made by the applicant. 4. Criminal Misc. Case No. 2998 of 2016 has been filed by Amit Pal Singh for quashing of supplementary charge sheet, under Sections 420, 467, 468, 471, 120-B IPC and Sections 5/25/30 of Arms Act, the supplementary charge sheet filed under Section 121 A and 122 I.P.C. as well as the entire proceedings of the Case No.1161 of 2014, arising out of Crime No. 1/2013, relating to ATS, District Lucknow, pending in the court of Additional Sessions Judge, Lucknow. 5. The FIR of this case was lodged on 17.4.2013 by Tej Bahadur, Inspector of ATS, Lucknow alleging therein that on 17.5.2013, he got an information that a person alongwith duplicate imported firearms, was coming on vehicle No. U.P 32 EE 2012 from Kanpur City and was going towards Lucknow. The information was forwarded to the Senior Officers and on their instructions, a police team was constituted. The police team along with informer reached Lucknow-Kanpur highway near Chamrauli Government Inter College. The police team tried to take some public witnesses but no one agreed to co-operate with the police team. It is said that at about 2.30 P.M. the vehicle bearing Registration No. U.P. 32 EE 2012 was seen coming from Kanpur which was stopped by the police team. The police team tried to take some public witnesses but no one agreed to co-operate with the police team. It is said that at about 2.30 P.M. the vehicle bearing Registration No. U.P. 32 EE 2012 was seen coming from Kanpur which was stopped by the police team. The person who was driving the car told that his name as Mohd. Khalid, R/o Lucknow he was found in possession of two pistols in working order. He was also found in possession of cash of Rs. 32,000/- When the police team took search of the car, certain other firearms were recovered. Mohd. Khalid was also found in possession of two Mobile Phones and cash. When he was asked about the firearms, he could not show any documents and stated that his maternal uncle Haji Afsar had introduced him to the Arms Dealer of Kanpur and in this process he came in contact with Anil Jain, an Arm Dealer of Haryana. He told him that in case he wanted to earn more money, he would have to join him in his business. He, also told that in case he supplied spare parts of the firearm, he would earn more money. He also told the police party that since then he was engaged in this business with Shiva Nand Setti. During the course of this business he also came in contact with Alvin Disha of Mumbai, who used to import spares of firearm from Canada and Singapore. When Shiva Nand Setti was arrested, he started his business with Alvin Disha. He also admitted having deposited huge amount in the account of Alvin Disha at Lucknow. He also told the police party that during the course of this business, he obtained permission of Gurcharan Singh of Kanpur to run his shop at Lucknow, which was closed since last several years. He then started selling old firearms with new forged numbers. He further stated that he used to sell one pistol for 6 to 14 lacs. He also admitted having sold more than 150 arms to different arm dealers including Bareilly Gun House, Meston road, Kanpur. On the basis of the aforesaid statement, the police team took Mohd. Khalid into custody and also seized firearm recovered from the car. After the registration of the First Information Report, the police proceeded with the investigation and took statements of witnesses. On the basis of the aforesaid statement, the police team took Mohd. Khalid into custody and also seized firearm recovered from the car. After the registration of the First Information Report, the police proceeded with the investigation and took statements of witnesses. During the course of investigation when the statement of Inspector NIA Hridaya Nand Pandey was recorded, the name of the applicant Mantu @ Sanjai Singh came into light and it is said that he purchased one Rifle and 20 cartridges. Thereafter statements of several witnesses including Vijay, Ritu, Ajai Pal Singh and Harish Chandra Pandey were recorded in which the name of the applicant was introduced. Thereafter the offence of Section 121 A and 122 I.P.C. was added. The police after completion of investigation, submitted charge sheet against Mohd. Khalid and 5 others, upon which the court also took cognizance on 16.7.2013. However, on the objection raised by Mohd. Kahlid, the Magistrate deleted Section 121 A and 122 I.P.C. and 3/5 Arms Act but subsequently on 19.7.2014 supplementary charge sheet was filed under Section 121 A and 122 I.P.C. along with permission for prosecution. 6. During the course of investigation the applicant Amit Pal Singh was also arrested and charge sheet was submitted against him also. 7. The main ground for quashing of the proceeding of trial and the charge sheet taken by the applicants, is that the offence under Sections 121 A and 122 I.P.C. are the scheduled offences as per section 2(g) of National Investigation Agency Act, 2008. The Scheduled offences as per the Act is to be investigated by National Investigation Agency and it is duty of the officer-in-charge of the concerned police station to forward a report to the State Government under Section 6(1) of the Act, which requires that 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. 8. Sub-section (2) provides that on receipt of the report the State Government shall forward the report to the Central Government as expeditiously as possible. 8. Sub-section (2) provides that on receipt of the report the State Government shall forward the report to the Central Government as expeditiously as possible. Sub-Section (3) provides that on receipt of report from the State Government, the Central Government shall determine on the basis of the information made available by the State Government within 15 days from the date of receipt of the report, whether the offence is 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. According to Sub-section (4) of Section 6- 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. However, the Central Government may suomoto direct the Agency to investigate the said offence. Section 6 further provides that where any such direction is given, 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 record to the Agency. However, Sub-section (7) makes it clear 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. 9. The submission of the learned Senior Advocate is that when the offence under Section 121A and 122 I.P.C., which is Scheduled Offence, was attracted, it was the duty of the officer-in-charge of the investigation, to inform the State Government and the State Government was under obligation to forward the report to the Central Government. In the present case no such information was admittedly given to the State Government and consequently, the State Government also did not forward any report to the Central Government. Thus the entire investigation conducted by the State Police, is vitiated and no cognisance could have been taken, upon the charge sheet submitted by the State Police. Thus the proceedings of Sessions Trial pending against the applicants are vitiated and are liable to be quashed on this very ground. 10. The learned Senior Advocate appearing on behalf of the applicant has relied upon a decision of the Hon'ble Apex Court reported in (2014) 8 SCC 425 Hussein Ghadially v. State of Gujarat. Thus the proceedings of Sessions Trial pending against the applicants are vitiated and are liable to be quashed on this very ground. 10. The learned Senior Advocate appearing on behalf of the applicant has relied upon a decision of the Hon'ble Apex Court reported in (2014) 8 SCC 425 Hussein Ghadially v. State of Gujarat. In this case the Hon'ble Supreme Court while dealing with the case under Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) examined the aforesaid questions and held that although at the time of initial investigation offence of Section 20-A of TADA was not in existence and the police continued with the investigation but as soon as the Act came into force and Section 20-A was enforced, the police was under obligation to obtain approval of the designated authority and if such approval has not been obtained the entire offence was vitiated. According to the Hon'ble Apex Court, the requirement was a mandatory provision and non compliance thereof will vitiate the trial and conviction. The Hon'ble Supreme Court on the aforesaid grounds allowed the appeal filed by the convicted appellants and set aside their conviction. The Honb'le Supreme Court has also observed that if the Statute provides a thing to be done in a particular manner, then it must be done in that matter alone. 11. The submission of the learned Senior Advocate is that when there is a prescribed procedure under NIA Act, that if the commission of Scheduled Offence is disclosed, the police officer-in-charge of the investigation, shall forthwith inform the State Government, upon which the State Government shall forward the report to the Central Government and thereafter Central Government will decide as to whether the investigation is to be conducted by the State police or by the National Investigating Agency or any other Agency, the procedure provided under Section 6 of the Act had to be followed. Since this procedure has not been followed in the case of the applicants, the entire prosecution is without jurisdiction and the applicants cannot be prosecuted on the basis of such invalid and unauthorized investigation. Neither the Magistrate could have taken cognizance nor the charges could have been framed against the applicants. 12. Since this procedure has not been followed in the case of the applicants, the entire prosecution is without jurisdiction and the applicants cannot be prosecuted on the basis of such invalid and unauthorized investigation. Neither the Magistrate could have taken cognizance nor the charges could have been framed against the applicants. 12. Shri Umesh Verma, who has argued the matter on behalf of the State of U.P., has submitted that admittedly when the FIR was lodged, the offence under Section 121A or 122 I.P.C. were not attracted. It was only during the course of investigation, that the commission of Scheduled Offence, came into light. Thus there was no occasion for the police to forward any report to the State Government. The learned AGA has referred to Section 6 of the NIA Act and has argued that the provision of Section 6 of the NIA Act attracted only when the FIR itself discloses commission of a Scheduled Offence. Sub-Section (1) of Section 6 clearly provides that 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. The compliance of Sub-Section (1) is to be made only at the stage of Section 154 of the Code which provides registration of the FIR. If during the course of investigation, the commission of Scheduled Offence is found by the Investigating Officer, Section 6 will have no application. The learned AGA further submits that in order to remove any deficiently information has been sent to the State Government afterwards. With regard to the case referred to by the Senior Advocate, the submission of the learned AGA is that the law laid down by the Hon'ble Apex Court in the case of Hussein Ghadially (supra), has no application, because the matter before the Hon'ble Supreme Court was an appeal against the conviction, while in the present case the applicants have come for quashing of the criminal proceedings against them. Moreover under TADA, there is provision to obtain approval of Designated Authority but in the present case no such approval is required by the State Police to proceed with the investigation. Moreover under TADA, there is provision to obtain approval of Designated Authority but in the present case no such approval is required by the State Police to proceed with the investigation. The learned AGA has referred to Section 10 of the NIA Act, which is reproduced as under:- "10" Save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offence under any law for the time being in force." 13. The submission of the learned AGA is that a bare reading of the section discloses that the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences, would remain intact. In other words, if the investigation is entrusted to NIA, only then the power of the State Government to investigate and prosecute the Scheduled Offence will be seized. 14. The learned AGA has referred to a Full Bench Decision of Patna High Court reported in 2015 CrLJ 2134 Bahadur Kora v. State of Bihar. In this case a Full Bench of the Patna High Court has held that Section 6 of the NIA Act is the basis to bring any particular case within the ambit of the Act. The NIA is not giving freedom to investigate any case of its choice. It is only when the Central Government entrusts such case to do, the NIA can investigate the case. Thus in other words the NIA does not have power to investigate by itself a case even if it involves a Scheduled Offence. It has to wait, till the case is entrusted to it by the Central Government. The Hon'ble Full Bench has also held that as long as the investigation to a case is not entrusted to NIA, the powers of State Government and its investigating agencies, will remain intact and the investigation and trial of such cases must be proceeded under the Cr.P.C. without any reference to the Act. 15. Reliance has also been placed by the learned AGA upon a judgment of a Co-ordinate Bench of this Court rendered in Crl. 15. Reliance has also been placed by the learned AGA upon a judgment of a Co-ordinate Bench of this Court rendered in Crl. Appeal No. 889 of 2016, decided on 8.2.2017, whereby it has been held that a bare perusal of Section 6 of the NIA Act indicates that till the matter is handed over to the National Investigating Agency, the officer-in-charge of the police station will continue with the investigation and he could also file charge sheet, which has been filed in the present case and the court has also taken cognisance. The Hon'ble Single Judge has also held that the decision rendered in the case of Bahadur Kora (supra) with regard to above by Full Bench of Patna High Court, has laid down the law in this regard and has settled that in case any investigation has been done by the State Government before handing over investigation to the NIA, then there is no illegality in the same. So far as the creation of special courts for trial is concerned, Section 22 of the NIA Act provides that the Scheduled Offences are to be dealt with by a Session Court from beginning i.e. from the stage of registration and from the charge sheet but where such special courts have not been created any session court may conduct the trial. If any special court has been created by the Statute at Lucknow, the trial against the applicants may be transferred to that court on an application being moved in this regard. Thus the submissions made on behalf of the applicants are devoid of merit. 16. For the aforesaid reasons, the applications moved on behalf of the applicants have no merit and are accordingly dismissed.