State vs Abdul Majid Dar

This revision petition is directed against the order dated 15061998 passed by the learned Sessions Judge, Badgam whereby he discharged the respondents herein for the commission of offences falling under sections 121A, 120Band 212 RPC. The factual matrix of the case as projected by the prosecution is that in the Police Station, Saddar Srinagar FIR No. 304 of 1997 was registered for the Commission of offences falling under section 10/11 of the Criminal Law Amendment Act and investigation thereunder was started. Bank account No. 191/2 in the Jammu and Kashmir Bank Branch, Rawalpora. Srinagar was found in the name of respondent No. 1 who is a vegetable vendor and runs his shop in Sant Nagar area of Srinagar City. Respondent No. 1 is an immediate neighbour of respondent No. 2 who is a senior leader of secessionist political organisation known as 'J&K Hurriat Conference. Respondent No. 2 has close relations with unlawful organisation known as 'Albarq' and in order to execute the secessional acts used to get secret monetary help from internal and external agencies who are hostile to the Union of India. In the year 1995. respondent No. 2 with an objective of carrying on these unlawful activities in a clandestine manner developed thick friendly relations with respondent No. 1 who became a frequent visitor to his house. For the safe custody of the money (which was so being received through 'Hawala' and other means) said account No. 191/2 in the J&K Bank Ltd. was opened. At the dictates of respondent No. 2, respondent No. 1 used to frequently deposit and withdraw the money. The withdrawn money was being spent for the procurement of illegal arms, ammunition and explosive materials which were being distributed to concerned groups of militants for the purpose of committing the acts of violence and sabotage in the State and thus threatening the integrity and security of the country. At the time of seizure of the said accounts, an amount of rupees one Crore was found in it.

The learned Sessions Judge before discharging the respondents had made the following observations in the impugned orders:

I am aware that at this stage the prosecution evidence has not to be scrutinized to ascertain the veracity of the witnesses or to look for contradictions, variations or commission in their deposition u/s 161 Cr. P.C. Even the probability of existence of allegations prima facie justified by the material on record is sufficient to charge accused. The measure which is to be applied to test the prosecution case at the conclusion of the trial has not to be applied with the same severity at the stage of ascertaining the grounds for involvement of the accused for purpose of charge but at the same time the courts have also a duty to prevent abuse of process of law and to safeguard the fairness of justice and pass appropriate orders when circumstances, facts and material on record demand.

While discussing the prosecution evidence, the learned Sessions Judge has held that ""there is no evidence to show that at any point of time any witness of the prosecution actually saw the accused Abdul Majid passing any money by cash or by cheque to the accused Abdul Gani Lone.

There is not even a single cheque or counterfoil of the cheque on the file to suggest that the accused Abdul Majid has ever paid any money to the accuse Abdul Gani Lone from account No. 191/2 in the Jammu and Kashmir Bank."" He had also found that there existed no conspiracy to purchase arms and ammunition including explosives as no recovery could be made of any such objectionable items. Equally, there was no evidence to suggest that any weapon or explosive material was ever purchased, procured or possessed by any of the accused. No prosecution witness even faintly had deposed that criminal force was applied in order to wage war with the aim of overthrowing the State. There was not even an iota of evidence to show that a particular militant was given shelter by respondent No. 2 in order to screen him from the legal consequences of the acts committed by them. The prosecution had even failed to trace the source of the money from where the deposits were made in the said account.

After making the discussion in the manner stated above, the learned Judge held that there was no prima facie evidence against the respondent so he discharged them.

This order of discharge has been challenged on the following grounds:

1.The learned Sessions Judge ignored the prosecution evidence which included entries made in the Bank regarding maintaining Account No. 191/2 and it being documentary evidence had great probative value. The accused had unaccounted amount in the sum of Rupees One Crore.

Respondent No. 2 had given a Fixed Deposit Receipt of the said Bank to respondent No. 1 containing an amount of rupees seven lakhs which was recovered from the latter;

ii) On 111996, an amount of Rs 30.00 lakhs was withdrawn from the above said account by respondent No. 1 and given to 'Alam Dar Fund' vide cheques bearing numbers 234418. 234419, and 234420. This withdrawal of amount was made to augment the political activities of respondent

No. 2 directed towards providing relief to the fire sufferers of 'CharaiShrief (a sacred shrine which was burnt by militants). The fire had also destroyed many dwelling houses in the vicinity). This was Camouflaged separatist activity. The offences of conspiracy does not require direct evidence but it can be inferred. The learned Sessions Judge had consciously ignored the oral testimony of three prosecution witnesses namely, Mohd Aslam Shah, Javed Ahmed Shah and Ghulam Ahmed Shah when they had established a link with the meeting of minds of respondents with ultra antinationalists who used to receive arms and ammunition.which was being purchased from the sums being withdrawn from the said amount.

iii) The learned Judge did not appreciate the evidence on its prima facie value but exceeded its jurisdiction when it appreciated it from the angle of bringing home the guilt beyond and shadow of doubt. This was a perverse appreciation of the evidence and requires reversal by invoking the revisional jurisdiction.

Heard the arguments.

Mr. Qadri has contended that the learned Sessions Judge has misappreciated the evidence in a perverse manner when he ignored the statements of prosecution witnesses, namely, Gh. Ahmed Shah, Mohd Aslam Shah and Javed Ahmed Shah who in unequivocal terms have stated with one voice that respondent No. 2 used to pass on money illegally received by him to respondent No. 1 who was depositing it in account No. 191/2. On demand, the money was being withdrawn and then arms and ammunition purchased. The documentary evidence in the nature of entries made in the bank lend corroboration for making such deposits and withdrawals. The money was being received from unknown sources. Such oral and documentary evidence had probabilised the guilt or raised a strong suspicion of its existence but the trial court brushed asidex such evidence. The appraisal on the line that there was not even an iota of evidence to establish the use of criminal force to overawe and through away the established Government was an extraneous exercise on the part of the court. The learned trail Judge had failed to note the explanation appended to section 121A RFC which clearly lays down that in order to constitute a conspiracy under the section it is not necessary that any act or illegal omission shall take place in pursuance thereof. The prosecution evidence to the effect that militants belonging to various banned organisations used to frequently visit the house of respondent No. 2 who had been harbouring them by concealing their activities having the knowledge or reason to believe that they were the offenders and this was being done with the intention of screening them from legal punishment could not be ignored. During the trial, the names of those militant/offenders could be ascertained from the concerned witnesses and rejection of the whole evidence at pretrial stage was unwarranted.

In rebuttal, it has been contended by Mr. S.R. Hussain that there is no evidence on the record to establish any conspiracy to commit the offence punishable under section 121 RFC as well as the offence falling under section 121 RFC. He has also contended that the commission of offence under section 120B RFC is not attracted because an offence falling under section 121A RFC itself pertains to a conspiracy to commit offences punishable by section 121 RFC. Section 121A embraces two kinds of conspiracies viz (i) conspiracy to commit any of the offences punishable under section 121 RFC; (ii) conspiracies to overawe, by means of criminal force or the show of criminal force, the Government or the Govt. of India or any other State Govt. in India. Under section 121 RFC the expression used is "whoever wages war against the Government of India or attempts to wage such war or abets the waging of such war etc. etc." He contends that the expression "waging war" means waging war in the. manner usual in war. In other words, to support a charge of waging war, it is not enough to show that the persons charged have contrived to obtain possession of armoury and in order to have it used the rifles and ammunition but it must also be shown that the seizure of armoury was part and parcel of planned policy and their intention in resisting the troops of the Government was to overwhelm and defect those troops and to then go on and crush any opposition with which they might meet until the Government yielded to the demands of their leaders. The evidence collected by the prosecution in this case did not establish these ingredients of the conspiracy to wage war against the Govt. as the allegations relate to money transactions and at the most their could be violations of Income Tax Act and there was no evidence to establish that any arms and ammunition and other explosive materials were ever purchased and then supplied to the militants. The commission of economic offences does not amount to waging war against the State. According to him, the money deposited in the account in question had been received through voluntary contributions towards the religious trust known as "Alam Dar Fund" and the money was being utilized to provide the relief to the fire sufferers of ""CharaiiSharief incident. That in order to bring homean offence under section 212 RFC, respondent No. 2 should have known or believed that a person who was being harboured by him was an offender but prosecution evidence is lacking in this behalf.

On the legal aspect of the case, the learned counsel has contended that the learned Sessions Judge had no jurisdiction to take cognizance of the alleged offences as there was noncompliance of the mandatory provisions of section 196 Cr. P.C.

The learned counsel appearing for the petitioner (Mr. M.I. Qadri) was given a chance to show the prosecution record which could rebut the submission of Mr. Hussain and he frankly admitted that these proceedings are only based on the final report submitted by the police under section

173 Cr. P.C. In order to understand this controversy, it is advantageous to produce section 196 Cr, P.C. hereundenr:

Section 196: ""Prosecution for offences against the State No Court shall take cognizance of any offence punishable under Chapter VI or IXA of the Ranbir Penal Code (except section 127 and section 171F, so far as it relates to the offence of personation) or punishable under section 108A, or 295A) or section 505 of the Ranbir Penal Code, unless upon complaint made by order of or under authority from (the Govt. or District Magistrate or such other officer as may be empowered by the Govt. in this behalf.

An offence falling under section 121A RPC falls under Chapter VI of the Ranbir Penal Code. A conspiracy to commit the offences punishable under section 121 is an offence under section 121A and punishable with imprisonment for life or with imprisonment of either description which may extend to 10 years and also be liable to fine. Section 196 Cr. P.C. creates a bar for taking cognizance for the commission of such an offence, unless a complaint is made by order of or under authority from the Government or District Magistrate or such other officer as may be empowered by the Govt. in this behalf. In other words, no prosecution can be initiated for an offence mentioned under section 196 Cr. P.C. without the sanction of the Govt. as provided in the section. Sanction to prosecute constitute a condition precedent to the institution of the prosecution, the giving of the sanction confers jurisdiction on the court to try the case and where there is no valid sanction there is defect in the jurisdiction of the Court which cannot be cured under section 537 Cr. P.C. This rule was laid down in the case of Abdul Mian and others Vs. The King (AIR (38)

1951 Patna 513). The present case is found suffering from this basic infirmity and on this view of the matter, the appraisal of evidence to constitute the offence is a futile exercise. Offence falling under section 212 RPC is not covered by section 196 Cr. P.C. Section 120B RPC is not attracted on the facts of the case. Independent trial for the commission of offence under section 212 RPC is permissible but on the facts and circumstances of the case it is not advisable to do so because the evidence collected overlaps. It shall not be in the interest of fair trial of the case to allow the major offence being eclipsed by minor when the allegations relate to the security of the State which is facing a proxy war. The lapse which has been committed on its face does not appear to be honest and bonafide.

The learned Sessions Judge has discharged the accused but the trial before it lacked compentency to hear and determine the case and to record a verdict. The Privy Council in the case of Yusof Alli Mulla Noorbhoy Vs. The King (AIR (36) 1449 Privy Council 264) has held that where sanction for prosecution as required by law is not obtained, the prosecution is illegal and the acquittal is without jurisdiction. Subsequent prosecution for same offence upon fresh legal sanction is valid and not barred under section 403 Cr. P.C. on the same facts.

The Hon'ble Supreme Court also in the case of Baij Nath Prasad Tripathi Vs. The State of Bhopal and another (AIR 1957 Sc 494) has held, that to bar second trail, the first trail should be by court of competent jurisdiction. Prosecution requiring sanction and trail without sanction is null and void being by court not competent to try it and subsequent trail with proper sanction is not barred. The same principle was reiterated by the Supreme Court in the recent case of State through CBI Vs. B.L. Verma and another (1997 (10) SCC 772). Para 7 of the judgment is reproduced hereundenr:

However, before parting with this order, we would like to clarify, lest there be any ambiguity, that the direction of the High Court to drop the proceedings against the respondent was on account of want of sanction under section 197 (1) Cr. P.C. and should be competent authority hereafter to grant sanction under section 197 Cr. P.C., it will be perfectly valid and open to the petitioner herein to activate the prosecution against the respondent and the order of the High Court dated 04121996 or this order shall not come in the way of the court to take cognizance nor shall the orders come in the way of the competent authority to grant sanction under section 197 Cr. P.C., after considering the facts and circumstances of the case if the CBI ap'plies for obtaining sanction. Nothing said hereinabove shall, however, be construed as any expression of opinion on the merits of the case and the competent authority as the case may be, shall decide the matter on its own merits.

On the views which has been taken in the matter, the revision petition is found of inconsequential legal value, which is dismissed. The competent authority is at liberty to decide about the second trial, after addressing itself that trial should not end as a damp squib.

Section 196 Cr. P.C. creates a bar for launching prosecution of the offences stated herein without a complaint being made by the named authorities. The legislature is primarily concerned to see that prosecution for offences in cases covered by prohibition shall not commence without complying with the conditions contained therein. An offence falling under section 121A RFC is of serious nature and the prosecution in a ham handed manner is not comtemplated. An innocent citizen should not be put to trail on the basis of evidence which is of nebulous nature or fallswithin penumbrai zone. All the concerned officials who under law were associated with the prosecution of this case are required to explain how they had been maladroiting it by giving a goby to the enabling provision of section 196 Cr. P.C. This legal wrong can only be jettisoned by ordering an inquiry by the Top brass of the Administration and suitable followup action by them.

This court has a constitutional duty to up hold the rule of law and not to allow the trial of serious cases involving the security of the State being scuttled or subverted enroute. It is flabbergasting to note how the higher echelons in the concerned hierarchy had failed to give Nelson's Touch to the trial of the case when in such like sensitive case supervision was required from the initial stage till the logical conclusion. In this view of the matter, the Chief Secretary of the State., is required to constitute a committee consisting of himself, Additional Chief Secretary (Home) and Director General of Police, to go into all the aspects of the case and submit their report in the Registry within four months. The Register (Judicial) shall put up the report before this bench for perusal. The record of the trial court be returned.