ASIM SHARIFF versus NATIONAL INVESTIGATION AGENCY

[2019] 8 S.C.R. 799

ASIM SHARIFF

NATIONAL INVESTIGATION AGENCY

(Criminal Appeal No. 949 of 2019)

JULY 01, 2019

[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]

Code of Criminal Procedure, 1973:

s. 227 – Discharge under – Sought by appellant-accusedalongwith other accused – From the charges u/ss. 120B, 109, 150,153A, 302, 201 r/w s. 34 IPC; u/ss. 3 and 27 of Arms Act; and u/ss.16(1)(a), 18 and 20 of Unlawful Activities (Prevention) Act –Application dismissed by trial court – Dismissal order affirmed byHigh Court – Appeal to Supreme Court – Held: While examiningthe discharge application u/s. 227, court is expected to exercise itsjudicial mind to determine as to whether prima facie case is madeout against the accused – The facts of the present case persuadedthe trial court to arrive at conclusion that prima facie case ofalleged offences were made out, truth and veracity of which was tobe examined during the course of trial – Order of courts below donot call for interference.

Dismissing the appeal, the Court

HELD : 1. The Judge while considering the question offraming charge under Section 227 CrPC in sessions cases(whichis akin to Section 239 CrPC pertaining to warrant cases) has theundoubted power to sift and weigh the evidence for the limitedpurpose of finding out whether or not prima facie case againstthe accused has been made out; where the material placed beforethe Court discloses grave suspicion against the accused whichhas not been properly explained, the Court will be fully justifiedin framing the charge; by and large if two views are possible andone of them giving rise to suspicion only, as distinguished fromgrave suspicion against the accused, the trial Judge will bejustified in discharging him. Thus, while examining the dischargeapplication filed under Section 227 CrPC, it is expected from the

Atrial Judge to exercise its judicial mind to determine as to whethera case for trial has been made out or not. It is true that in suchproceedings, the Court is not supposed to hold mini trial bymarshalling the evidence on record. [Para 19] [807-E-G]

2. The facts of the present case persuaded the Court toBarrive to conclusion that there is prima facie material ofconspiracy among the accused persons giving rise to sufficientgrounds of subjective satisfaction of prima facie case of allegedoffences of conspiracy being hatched among the accused personsand truth & veracity of such conspiracy is to be examined duringthe course of trial. There is no error in the judgment passed byCthe trial Court and confirmed by the High Court. [Paras 23 and24] [810-A-C]

Union of India v. Prafulla Kumar Samal & Ors. (1979)3 SCC 4 : [1979] 2 SCR 229 ; Sajjan Kumar v. CentralBureau of Investigation (2010) 9 SCC 368 : [2010] 11DSCR 669 ; State v. S. Selvi and Ors. (2018) 13 SCC455 ; Vikram Johar v. State of Uttar Pradesh and Ors.(2019) 6 SCALE 794 – relied on.

FCRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 949 of 2019.

From the Judgment and Order dated 22.11.2018 of the High Courtof Karnataka at Bangalore in Writ Petition (Crl.) No. 13891 of 2018.

Kamini Jaiswal, Abdul Rahiman, Shereef K.A., Ms. Rani Mishra,GJatinderpal Singh., Advs. for the Appellant.

Aman Lekhi, ASG, Ms. Shraddha Deshmukh, Kanu Agrawal, B.V. Balaram Das, Advs. for the Respondent.

The Judgment of the Court was delivered by

RASTOGI, J. 1. Leave granted.

2. The present appeal has been preferred by the accused appellantagainst whom criminal case bearing no. RC 04/16-NIA-HYD cameto be registered along with four other accused persons for the offencespunishable under Sections 120-B, 109, 150, 153A, 302, 201 read withSection 34 of IPC; Sections 3 and 27 of the Arms Act and Sections15,16,17,18 & 20 of the Unlawful Activities(Prevention) Act,1967(hereinafter being referred to as “UAP Act”).

3. After completion of the investigation, final report was submittedbefore the trial Court against the accused persons including appellant.The appellant claims that there was no material for registering the criminalcase neither investigating nor submitting the final report against him. Atthis stage, the appellant filed application under Section 227 of Code ofCriminal Procedure, 1973(hereinafter being referred to as “CrPC”)seeking his discharge from the case for the aforesaid offences. Theapplication was dismissed by the trial Judge/Special Judge who orderedfor framing of charges against him for the aforesaid offences underOrder dated 2[nd] January, 2018 came to be challenged by the appellant ina writ petition filed under Article 226 and 227 of Constitution of Indiaread with Section 482 CrPC which was dismissed by lucid impugnedjudgment dated 22[nd] November, 2018 which is subject matter ofchallenge in the instant appeal.

4. The background facts giving rise to this appeal which needs tobe noted are that criminal case came to be registered as Crime No.124/2016 on 16[th] October, 2016 for the offences punishable under Section302 read with Section 34 IPC by Commercial Street Police after acomplaint was filed by one Jayaram(CW-1), who stated that on 16[th]October, 2016 at around 12.40 p.m. when he along with his friends namelyRudresh, Harikrishna and Kumar assembled near Srinivas Medical Stores,Shivajinagar, one person(accused) being the pillion rider of the motorcyclehacked Rudresh with sharp edged and lethal machete on the right sideof his neck and fled. Rudresh was taken to hospital wherein he wasdeclared brought dead.

5. Initially, four accused persons (Accused nos. 1 to 4) werearrested on 27[th] October, 2016. Accused no. 5(appellant herein) wasarrested on 2[nd] November, 2016. Subsequently, the task of investigation

Awas entrusted to National Investigating Agency(NIA) by the Union ofIndia, Ministry of Home Affairs, New Delhi on 7[th] December, 2016.NIA registered FIR in RC No. 24/2016 against all five accused personsincluding the appellant. After investigation, the charge sheet wassubmitted against all five accused persons on 21[st] April, 2017 whichstated that accused nos. 1 to 4 conspired with the accusedBappellant(accused no. 5) to kill RSS members and in furtherance of theiracts, they committed offence punishable under Sections 302, 201 readwith Section 34 IPC. The accused persons were said to be in possessionof weapons without license, thereby it attracted the offence punishableunder Sections 3 and 27 of the Arms Act. Further, the acts of the accusedCpersons including the accused appellant amounted to offences punishableunder Sections 120B, 109, 150, 153A, 302, 201 read with Section 34 IPCand under Sections 16(1)(a), 18 and 20 of the UAP Act.6. The appellant sought discharge under Section 227 CrPC alongwith other accused persons which came to be rejected vide order datedD2[nd] January, 2018 and framed charges against the accused personsincluding accused appellant. Special NIA Court under its Order dated2[nd] January, 2018 while deciding the application of appellant seekingdischarge under Section 227 CrPC observed that it was admitted by thedefence counsel that the appellant is the President of Bengaluru unit ofPopular Front of India(PFI) and the other accused persons nos. 1 to 4Eare also the members of PFI. It was also admitted by the defencecounsel that there was frequent telephonic/mobile phone conversationamong the accused persons nos. 1 to 5 prior and subsequent to 16[th]October, 2016(the date of the incident) which gave rise to the SpecialNIA Court to arrive at conclusion that the material placed in the charge-

Fsheet on record gives rise to sufficient grounds of subjective satisfactionof prima facie case of alleged offence of conspiracy being hatched amongthe accused persons. It further observed that the accused appellant hasfailed to justify the necessary ingredients of Section 227 CrPC and finallyheld that the matter deserved to be proceeded with framing of charge.

The said order came to be affirmed by the High Court on dismissal ofGthe writ petition preferred by the unsuccessful appellant vide its impugnedjudgment dated 22[nd] November, 2018.

7. Ms. Kamini Jaiswal, learned counsel for the appellant submitsthat the impugned judgment has resulted in grave miscarriage of justiceand is based on an erroneous interpretation of the factual circumstancesH

of the case and the High Court has not taken into consideration the oraland documentary evidence on record in the proper perspective whichhas vitiated the entire proceedings and led to gross injustice.

8. Learned counsel further submits that the bare reading of theextract of charge sheet reveals that the prosecution has failed to adduceevidence which was against the appellant. That CW 1 to 53, 55 to 76, 78to 86, 86-92, 94 to 96 and 98 to 112 did not whisper anything against theappellant and the other witnesses relied by the prosecution to make outa case against him are the witnesses of the Mahzar proceedings whoprovided some information like bank account details and call data records,which in no way discloses any incriminating material against the appellant.

9. According to the learned counsel, the charge against theappellant is without any basis and merely on suspicion as there is nothingto reveal that the appellant was the main conspirator behind the allegedmurder termed as terror attack. The allegation that he planned theconspiracy along with other PFI members to kill RSS members andarranged conspiracy meetings and executed the plan of striking terroramong section of people belonging to RSS is concocted and withoutany substance as nothing incriminating has been recovered from theappellant or to support the prosecution story and in the givencircumstances, rejecting his application for discharge under Section 227CrPC by the trial Judge and affirmed by the High Court is not sustainablein law.

10. Learned counsel further submits that though the alleged incidentas per the case of prosecution has been planned and executed on thelast day of Navaratri being Vijayadashmi whereas it is matter of recordthat the Navaratri was already over on the said date and the Vijayadashmiwas on 11[th] October, 2016 and the alleged incident was on 16[th] October,2016. Such statement was made just to prejudice the mind of theCourt to frame charge against the appellant which is unreasonable andunjustified and this has not been looked into and appreciated by the HighCourt in its impugned judgment.11. Learned counsel further submits that none of the accused inthis case are the member of any terrorist organisation which are bannedunder the schedule of UAP Act and, therefore, the question of invocationof UAP Act, after completion of investigation, was not attracted and atleast the charge framed against him for the offences under UAP Actwas not legally sustainable in law.

A12. Per contra, Mr. Aman Lekhi, learned ASG appearing for therespondent with his usual vehemence submits that Section 15 of UAPAct covers both the act of an individual and terrorist gang/associationand as per Section 20 of the UAP Act, it is not necessary for anassociation/organisation to be included in the schedule, for punishing aterrorist act carried out by them.B

13. Learned counsel further submits that the incident occurred ona day when the RSS workers had organised path sanchalan, and thedeceased, who was dressed in uniform, was brutually attacked by theaccused persons whereby his throat was slit in single blow, resulting inhis immediate death. Admittedly, there is no animosity between theCappellant and deceased. The nature of the act including the recoveriesmade shows that the consequences were intended to be beyond thephysical act itself and was to create fear in the minds of the people atlarge and to create insecurity and foster disharmony.

14. Learned counsel further submits that the series of evidenceDreveals the appellant’s involvement in the commission of crime:-

i) Appellant is the District President of the Popular Front ofIndia(PFI) which has been involved in killings of several RSSmembers/Hindu leaders in Karnataka in the past three years.

Eii) Seizure of banner dated 12[th] December, 2016 which bore thenames and photograph of all the accused including the accusedappellant.

iii) Several telephone exchanges between accused no. 1 to 4 andthe accused appellant.Fiv) Disclosure report dated 4[th] November, 2016 which reveals thata leather purse containing letter written by accused no. 4was discovered at the office of the appellant, wherein accusedno. 4 list out 17 murders committed by PFI in near past with anote as to why the murder of deceased Rudresh had attractedso much attention as compared to other murders.G

v) Investigation revealed that about 8-9 months prior to theincident, all the accused had attended indoctrination classesorganised by accused appellant and other members whereaccused persons were recruited and brainwashed by theappellant to kill RSS members.H

vi) Accused no. 4 confesses that accused appellant was themastermind behind the killing of RSS members.

15. Learned counsel further submits that there is strong suspicionwhich leads the Court to think that the appellant has committed an offencewhich clearly borne out from the charge-sheet placed on record and thetrial Court rightly held that the prima facie case was made out againstthe appellant and after the matter has been elaborately considered bythe High Court in revisiting the factual matrix taken note by the trialCourt under its Order dated 2[nd] January, 2018, no interference at least iscalled for in the appeal preferred at the instance of the appellant.

16. Before we proceed to examine the facts of the present case,it may be apposite to take note of the ambit and scope of the powers ofthe Court at the time of considering the discharge application. ThisCourt in Union of IndiaVs. Prafulla Kumar Samal & Ors.1 had anoccasion to consider the scope of Section 227 CrPC and it held inparagraph 7 as under:-

“7. Section 227 of the Code runs thus:

“If, upon consideration of the record of the case and thedocuments submitted therewith, and after hearing thesubmissions of the accused and the prosecution in this behalf,the Judge considers that there is not sufficient ground forproceeding against the accused, he shall discharge the accusedand record his reasons for so doing.”

The words “not sufficient ground for proceeding against theaccused” clearly show that the Judge is not mere post office toframe the charge at the behest of the prosecution, but has toexercise his judicial mind to the facts of the case in order todetermine whether case for trial has been made out by theprosecution. In assessing this fact, it is not necessary for the courtto enter into the pros and cons of the matter or into weighingand balancing of evidence and probabilities which is really hisfunction after the trial starts. At the stage of Section 227, theJudge has merely to sift the evidence in order to find out whetheror not there is sufficient ground for proceeding against the accused.The sufficiency of ground would take within its fold the nature ofthe evidence recorded by the police or the documents produced

1 1979 (3) SCC 4

Abefore the court which ex facie disclose that there are suspiciouscircumstances against the accused so as to frame charge againsthim.”

17. InSajjan KumarVs. Central Bureau of Investigation2, thisCourt had an occasion to consider the scope of Section 227 and 228BCrPC. The principles which emerged therefrom have been taken noteof in para 21 as under:-

“21. On consideration of the authorities about the scope ofSections 227 and 228 of the Code, the following principles emerge:

(i) The Judge while considering the question of framing thecharges under Section 227 CrPC has the undoubted power tosift and weigh the evidence for the limited purpose of findingout whether or not prima facie case against the accused hasbeen made out. The test to determine prima facie case woulddepend upon the facts of each case.

(ii) Where the materials placed before the court disclose gravesuspicion against the accused which has not been properlyexplained, the court will be fully justified in framing chargeand proceeding with the trial.

(iii) The court cannot act merely as post office or aEmouthpiece of the prosecution but has to consider the broadprobabilities of the case, the total effect of the evidence andthe documents produced before the court, any basic infirmities,etc. However, at this stage, there cannot be roving enquiryinto the pros and cons of the matter and weigh the evidence asif he was conducting trial.

(iv) If on the basis of the material on record, the court couldform an opinion that the accused might have committed offence,it can frame the charge, though for conviction the conclusionis required to be proved beyond reasonable doubt that theaccused has committed the offence.

(v) At the time of framing of the charges, the probative valueof the material on record cannot be gone into but before framinga charge the court must apply its judicial mind on the material

placed on record and must be satisfied that the commission ofoffence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court is requiredto evaluate the material and documents on record with viewto find out if the facts emerging therefrom taken at their facevalue disclose the existence of all the ingredients constitutingthe alleged offence. For this limited purpose, sift the evidenceas it cannot be expected even at that initial stage to accept allthat the prosecution states as gospel truth even if it is opposedto common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise tosuspicion only, as distinguished from grave suspicion, the trialJudge will be empowered to discharge the accused and at thisstage, he is not to see whether the trial will end in conviction oracquittal.”

18. The exposition of law on the subject has been furtherconsidered by this Court in StateVs. S. Selvi and Ors.3 followed inVikram JoharVs. State of Uttar Pradesh and Ors.4

19. Taking note of the exposition of law on the subject laid downby this Court, it is settled that the Judge while considering the question offraming charge under Section 227 CrPC in sessions cases(which is akinto Section 239 CrPC pertaining to warrant cases) has the undoubtedpower to sift and weigh the evidence for the limited purpose of findingout whether or not prima facie case against the accused has beenmade out; where the material placed before the Court discloses gravesuspicion against the accused which has not been properly explained,the Court will be fully justified in framing the charge; by and large if twoviews are possible and one of them giving rise to suspicion only, asdistinguished from grave suspicion against the accused, the trial Judgewill be justified in discharging him. It is thus clear that while examiningthe discharge application filed under Section 227 CrPC, it is expectedfrom the trial Judge to exercise its judicial mind to determine as to whethera case for trial has been made out or not. It is true that in suchproceedings, the Court is not supposed to hold mini trial by marshallingthe evidence on record.

3 2018 (13) SCC 455

4 2019 (6) SCALE 794

A20. If we advert to the facts of the instant case, initially criminalcase came to be registered in Crime No. 124/2016 on 16[th] October,2016 for the offences punishable under Section 302, 34 of IPC byCommercial Street Police over the murder of one Rudresh. Initially,four accused persons were arrested in connection with the crime.Subsequently, National Investigation Agency(NIA) registered firstBinformation in R.C. No. 24/2016 including the appellant-Asim Shariff(accused no. 5) in the list of the accused. The task of investigation wasentrusted to NIA by the Union of India, Ministry of Home Affairs(InternalSecurity-1 Division), North Block, New Delhi through its orders dated7[th] December, 2016 as per Section 6(5) read with Section 8 of the NationalCInvestigation Act. In obedience to the said order, the NIA, HyderabadBranch, registered the case in RC 04/16-NIA-HYD for the offencespunishable under Sections 120B, 109, 150, 153A, 302, 201 read withSection 34 IPC; Sections 3 and 27 of the Arms Act and Sections 15, 16,17, 18 & 20 of the UAP Act.

D21. After completion of the investigation, final report was submittedbefore the trial Court against the accused persons 1 to 5 on 21[st] April,2017. At this stage, the application filed by the accused appellant underSection 227 CrPC seeking his discharge from the charge for the aforesaidoffences came to be dismissed by the trial Court, after recording cogentreasons and order of framing charge against him and other accusedEpersons (accused nos. 1 to 4) under its Order dated 12[th] January, 2018.The extract of the order is as follows:-

“22. It is needless to mention herein that this Court has alreadytaken the cognizance of offences alleged and it is needless tomention herein that obtaining of sanction is condition precedentas on the date of taking cognizance of the offences alleged. Thatthe Sanction having been obtained by the NIA at the time ofcognizance of alleged offences and the cognizance having beenalready taken by this Court, this court is of the firm view that it isnot good to pass any orders in respect of sanction for the simplestreason that passing of any orders with regard to genuineness orotherwise of sanction, the same would amounts to an act ofusurping of appellate or revisional jurisdiction. That the order oftaking cognizance is intact even on this day. Therefore, for thereasons assigned in these paragraphs and in the precedingparagraphs of this order, NIA has established that material adduced

by it are sufficient enough to proceed with the case and that thesame do give subjective satisfaction of existence of prima-faciecase of alleged offences. Therefore, the subject matter of PointNo.2 deserves to be answered in the Negative, that of Point No.3deserves to be answered in the affirmative and that of point No.4in the Negative and the said points are hereby answeredaccordingly. This court proceeds to pass the following:

ORDER

The application filed under Section 227 Cr.P.C. by the accusedNo.5 is hereby dismissed. That the case on hand deserves to beproceeded with framing of charge in respect of alleged offencesas mentioned in the charge sheet as against all the accusedpersons.”

22. The unsuccessful appellant filed writ petition under Article226 and 227 of the Constitution of India read with Section 482 CrPC.The High Court after analysing the entire material on record confirmedthe view expressed by the trial Judge and held as under:-

“ No doubt the present petition is invoking writ jurisdiction underthe Constitution of India and inherent powers of this Court, regardbeing had to the fact that in the earlier round of litigation, thestand of the petitioner was specifically negatived by the orders ofthis Court. The matter has been urged, assessed and adjudicatedin the proceedings and again the petitioner has come for the nextround. On facts or in law there is no material worth to suggestfallibility of the proceedings in Spl. C.C. No.181/2017 pending onthe file of XLIX Addl. City Civil & Sessions Judge (Special Courtof trial of NIA cases) at Bengaluru for the offences punishable u/S 302, 201 r/w Sec. 34 of IPC and Section 3 and 27 of Arms Actand under Section 15, 16, 17, 18 and 20 of Unlawful Activities(Prevention) Act, 1967.”

23. That apart, we have also gone through the relevant recordand extract of the charge-sheet placed on record for perusal, the factreveals that the accused appellant is the President of Bengaluru unit ofPopular Front of India(PFI) and the other accused nos. 1 to 4 are alsothe members of PFI. It reveals from the charge-sheet that there wasfrequent telephonic/mobile conversation between appellant(accused no.5) with other accused persons(accused nos. 1 to 4) prior and subsequent

Ato 16[th] October, 2016 (the alleged date of incident) which persuaded theCourt to arrive to conclusion that there is prima facie material ofconspiracy among the accused persons giving rise to sufficient groundsof subjective satisfaction of prima facie case of alleged offences ofconspiracy being hatched among the accused persons and truth &veracity of such conspiracy is to be examined during the course of trial.B

24. After going through the records and the judgment impugnedbefore us, in the present facts and circumstances, we find no error in thejudgment passed by the trial Court and confirmed by the High Court bythe impugned judgment dated 22[nd] November, 2018 which calls for ourinterference.

25. We make it clear that what has been observed by this Court isonly for the purpose of disposal of the present appeal and any observationsmade shall either way not prejudice the rights of the parties during thecourse of trial and the trial Court may also not to be influenced/inhibitedby the observations made by us and proceed with the trial independentlyDin accordance with law.

26. With these observations, the appeal is dismissed.

27. Pending application(s), if any, stand disposed of.

EKalpana K. Tripathy

Appeal dismissed.