Joseph Kandula And Ors vs State Of Jharkhand

Heard learned counsel for the parties. Lower Court Records are already on record.

By filing this Criminal Revision, petitioners have challenged the judgement dated 29th May, 2019 passed by the District & Sessions Judge-I, Khunti

in Criminal Appeal No. 84 of 2014 whereby the appeal preferred by the petitioners against the judgement of conviction dated 5.4.2014 passed in G.R.

No. 200 of 2011 arising out of Khunti P.S. Case No. 80 of 2011 was dismissed.

The petitioners are accused of G.R. Case No. 200 of 2011 arising out of Khunti P.S. Case No. 80 of 2011 registered under Section 17 of the

Criminal Law (Amendment) Acts.

Prosecution case is that the police received an information that some Naxal miscreants are standing near a Kiosk adjacent to the Khunti Block

Officer, and are watching activities of the police. After receipt of this information, police reached at the place and apprehended these two petitioners.

It is alleged that from their possession some pamphlets, which is alleged to be Naxalite pamphlets, were recovered. On the aforesaid allegation the

case was lodged against the petitioners under Section 17 of the Criminal Law (Amendment) Act. Charge was framed and thereafter nine prosecution

witnesses were examined. After closure of the evidence, statement of the petitioners were recorded under Section 313 Cr.P.C. Thereafter trial

concluded by convicting these petitioners finding them to be guilty for the offence punishable under Section 17 of the Criminal Law (Amendment)

Acts.

An appeal was filed, which was heard by the Additional Sessions Judge, Khunti being Criminal Appeal No. 84 of 2014 which was also dismissed.

Challenging the aforesaid judgments counsel for the petitioners submits that there is no ingredients of offence under Section 17 of the of the

Criminal Law (Amendment) Acts. He submits that on the facts of this case, coupled with law the petitioners could not have been convicted. He

submits that both the courts below have failed to take into consideration the law while passing the impugned judgments of conviction. He submits that

mere possession of naxal literature will not attract Section 17 of the Criminal Law (Amendment) Acts. He submits that evidences, which are

inconsistent, has failed to bring home the charge under Section 17 of the Criminal Law (Amendment) Acts.

Learned APP submits that from the possession of this petitioners some nexalite literature were recovered which has been proved, so the petitioners

have been convicted.

After hearing the parties and after going through the records, I find that petitioners were apprehended while standing near Kiosk and from their

possession some Naxalite pamphlets were recovered. All the witnesses supported the aforesaid facts. The pamphlets which were recovered were

also exhibited and it is stated that in the pamphlets protest was raised against the police and administration.

Now the question is whether this fact can lead to conviction under Section 17 of the Criminal Law (Amendment) Acts. Section 17 of the Criminal

Law (Amendment) Acts reads as follows:-

“17. 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 find, 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.â€​

From the aforesaid provision of law, to bring home the charge under Section 17 of the Criminal Law (Amendment) Acts, the prosecution has to

prove that an accused is a member of an association which is unlawful or the accused has taken part in any meetings of such unlawful association or

has contributed or received or has solicited any contribution for the purpose of such association or in any way the accused has assisted in the

operation of any such association.

In this case admittedly, it is not the prosecution case that petitioners had attended any meeting or had contributed or received or solicited any

contribution on behalf of any unlawful association. Further there is nothing on record to suggest that petitioners were members of unlawful association

as it is the case of the prosecution that petitioners were standing and were watching the activities of the police and some pamphlets were recovered

from their possession. If a person assists the operation of unlawful association he can be punished under Section 17 of the Criminal Law

(Amendment) Acts, 1908 but in that case there should be evidence to suggest that the accused has assisted or assisting the operation of such

association. In this case there is nothing to suggest that petitioner has assisted any operation of the association. Some pamphlets were recovered from

the possession of these petitioners. It is also not case of the prosecution that they were distributing the pamphlets. There is no evidence to the effect

that petitioners are using the said pamphlets for any purpose. Mere possessing some pamphlets which imprint some protests against the administration

cannot be a material or substantive proof to conclude that the accused is assisting the operation of the unlawful association.

From the admitted evidence which has been led, I find that the prosecution has failed to prove the ingredients of Section 17 of the Criminal Law

(Amendment) Acts so far these petitioners are concerned in this case. Thus both courts below have failed to take into consideration the aforesaid

provision of law while arriving at a conclusion while convicting the petitioners. Finding merits in this revision application, I set aside the appellate

judgment dated 29.5.2019 passed in Criminal Appeal No. 84 of 2014 by District & Additional Sessions Judge-I, Khunti and also the trial court

judgment dated 5.4.2014 passed in Khunti P.S. Case No. 80 of 2011, corresponding to G.R. No. 200 of 2011 by Additional Chief Judicial Magistrate,

Khunti.

This application stands allowed.

Petitioners are directed to be released from custody forthwith if not wanted in any other case.