Hon'ble Prakash Krishna,J.
THE FACTS
1. Smt. Seema Azad (the petitioner) and her husband Sri Vishwa Vijai alias Kamal (both are referred to as the Accused) were arrested at about 21:30 hours on 6.2.2010.
2. Subsequently, an F.I.R. was lodged at Police Station Khuldabad, District Allahabad on the same day at 23:50 hours by Sri Ved Prakash Rai STF Field Unit Allahabad (the Informant). It was registered as Case Crime No.37/2010 under sections 18/20/21/23(2) of the Unlawful Activities (Prevention) Act, 1967 (the Act) and section 120 B/121/121A IPC.
3. Broadly, the material allegations in the FIR are as follows:
(i) The Special Task Force (the STF) Headquarters received information that--similar to the State of Bihar, Jharkhand, and Chhattisgarh--the banned organisation Bhartiya Communist Party (Maoist) {Communist Party of India (Maoist)} (the CPI-Maoist) is increasing its activities in this State. This information was also passed on to the Allahabad Unit of the STF. An instruction was received to collect information regarding the same;
(ii) On 6.2.2010, Sri Manoj Kumar Jha, the Additional Superintendent of Police, informed that one Ms. Asha alias Hira Mani Munda wife of Balraj alias CR alias Arvind alias Bachcha Singh resident of Tilkar, Police Station Ekma, District Chhapra (Bihar), an active member of CPI-Maoist has been arrested and she informed that:
In District Allahabad, the Accused are members of the CPI-Maoist. Vishwa Vijay is chief of the Organising Committee of CPI-M in UP.
They live near Durga Pooja Park, E.W.S. Colony, Govindpur, Allahabad. And Information regarding them should be obtained forthwith;
(iii) On receiving instruction, the Informant along with other police personnels started searching the Accused. They were arrested near Khushro Bagh, Jal Sansthan near Railway Station City side, Allahabad;
(iv) At the time of arrest some documents and pamphlets (mentioned in the FIR) along with some money and a camera were recovered from them. They informed the police (recorded separately in the FIR) that:
The Accused are active members of the CPI-Maoist. Balraj is General Secretary of CPI-Maoist and is responsible to increase the activities of this Organization in UP. Balraj met the accused Vishwa Vijay at Allahabad and appointed him (Vishwa Vijay) as the Chief of the State Organising Committee of CPI-Maoist.
The petitioner is also active member of the CPI-Maoist and overlooks literary work and publicity.
She motivates other women to join the Organization.
Balraj keeps on coming to Kanpur, where a meeting was to be held. In that meeting, other office-bearers from Bihar, Jharkhand and Chhattisgarh are also likely to come.
They were also going there. Their aim was to wage armed war against the Government of India and to establish Maoist regime after uprooting the Government of India.
(v) After inquiry and considering the literature, it is clear that the Accused are members of the banned organisation CPI-M and anti-national literature has been recovered from them,
(vi) They were arrested u/s 18, 20, 21, 23(2) of the Act and u/s 120B, 121, 121A IPC at about 21:50 hours after informing them the reasons of arrest,
(vii) The illegal material found during search was kept in the sealed cover.
4. The Investigating Agency filed an application before the Magistrate for grant of police custody. It was rejected on 20.2.2010. The revision against the same was also dismissed on 4.3.2010.
5. Subsequently, another application was filed on 5.3.2010 for the police custody. This application was also rejected on 6.3.2010.
6. Against the orders dated 4.3.2010 and 6.3.2010, an application under Section 482 CrPC numbered as application no. 9106 of 2010 was filed.
7. The Single Judge without issuing any notice to the petitioner or hearing her, partly allowed the application on 19.4.2010. By this order, the order dated 6.3.2010 was set aside and the Magistrate was asked to pass fresh order in accordance with law. However, before it could be given effect to, the petitioner filed an application on 22.4.2010 to recall it. On this application, the operation of the dated 19.4.2010 was stayed on 23.4.2010 and the matter was posted for rehearing.
8. The order on the recall application was reserved on 28th of May, 2010. Subsequently, the recall application was dismissed on 7.7.2010.
9.The petitioner filed a Special Leave Petition before the Supreme Court against the aforesaid order. The Supreme Court dismissed the said Special Leave Petition on 25.8.2010. However, the question of law was left open.
Other Developments
10. In the meantime, the petitioner filed a bail application before the Sessions Judge, Allahabad. It was rejected on 11.3.2010.
11. She filed criminal bail application No. 11679 of 2010 before this Court. By the order the Court deferred the hearing of the bail application till the final order was passed on the recall application of the petitioner against the order dated 19.4.2010. However, liberty was granted to the parties to file an application for hearing the bail application after the orders are passed.
12. After the recall application of the petitioner was dismissed on 7.7.2010, the prosecution filed an application before the Magistrate, supported by an affidavit along with a certified copy of the order of this Court dated 19.4.2010 to pass fresh order on the second application for granting police custody.
13. The aforesaid application was allowed by the Magistrate on 19.7.2010 in light of amended Section 43 D (2) (A) of the Act. The police custody for three days was granted imposing the following conditions:
(i) Investigating Officer (the IO) was to take the Accused in the police custody at 8:00 hours of 20.7.2010 from Central Jail, Naini and again admit them there at 16:00 hours of 22.7.2010;
(ii)The IO was to get the Accused medically examined before taking them in the police custody and admitting them in the jail;
(iii) The Accused were not to be tortured;
(iv) The advocate of the Accused would remain with them at the appropriate distance during this time but was not to interfere with the work of the IO.
In the police custody, some recoveries were made, though they are disputed by the counsel for the petitioner.
14. The prosecution filed the charge sheet against the Accused on 31.7.2010 under sections 13, 18, 20, 21, 23(2), 38, 39 and 40 of the Act and under sections 120 B, 121 and 121A of IPC.
15. On the basis of the charge sheet, the Magistrate took cognizance on 4.8.2010 and the case was committed to the Session Court on 18.8.2010.
16. Thereafter, the present writ petition was filed for,
(a)Quashing, the first information report dated 6.2.2010;
the charge sheet dated 31.7.2010;
cognisance order dated 4.8.2010; and the order dated 19.7.2010 granting police custody;
(b)A declaration that the recovery in pursuance of the order dated 19.7.2010 to be illegal; and
(c)Granting bail to the petitioner in the case.
Today, the petitioner has also filed an application to amend the writ petition claiming the relief of damages to the tune of Rs.10 Lakhs. We have not formally allowed the application, but have considered this relief on merit.
17. The parties have exchanged their affidavits. However, some further developments have taken place, which have been brought on record by means of supplementary counter affidavit filed by the State today.
18. In this supplementary counter affidavit, it is stated that the Additional Sessions Judge Court No.26 Allahabad (the ASJ) framed charge on 5.10.2010 after rejecting the prayer of the Accused for their discharge and has fixed 27.11.2010 for evidence of the prosecution.
19. The counsel of the petitioner made a statement that he does not want to file rejoinder affidavit and the case be heard.
20. We have heard Sri Ravi Kiran Jain along with Sri RK Awasthi and Sri Ankur Sharma for the petitioner; Sri AK Sand and Sri Sudhir Mehrotra, AGA for the State.
THE DECISION In re Quashing of the FIR
21. It is a settled law that an FIR can be quashed in a proceeding under Article 226 of the Constitution of India. However, there are limitations to the exercise of its powers. It may be quashed only if, There are malafide in fact; or The FIR does not make out any offence against the petitioner, or in other words if the allegations mentioned in the FIR, even if they are taken to be true, do not make out any offence against the petitioner.
22. In the present case, no one has been impleaded in the personal capacity. There are no allegations of personal malafide. It is not even argued before us that the FIR be quashed on the grounds of personal malafides.
23. Section (2) (1) (m) of the Act defines 'terrorist organisation'. It means an organisation listed in the schedule or an organisation operating under the same name as an organisation so listed.
24. Schedule is also defined under section 2(1) (ha) of the Act to mean schedule to the Act. Chapter VI is titled as 'TERRORIST ORGANISATION'. Section 35 of the Act is titled as 'Amendment of Schedule, etc.' It provides that the central government may by order in the official Gazette add an organisation in the official gazette.
25. The CPI-Maoist was not included in the schedule however by notification dt. 22.6.2009 it has been included in the schedule. It is a terrorist organisation.
26. The FIR against the Accused was under the Act as well as under the IPC. The title of the sections of the Act under which the FIR was lodged are as follows:
27. The allegations of the FIR have been mentioned in paragraph 3 of this judgment. Considering the material allegation of the FIR and the fact that CPI-Maoist is a terrorist organisation--it cannot be said that they do not make out any offence against the petitioner.
28. Whether the prosecution is able to prove it is another question and would be seen in the trial. If the prosecution is not able to prove it, then, the Accused would be entitled for acquittal, nevertheless, the FIR cannot be quashed in the writ jurisdiction.
In re Taking Cognisance and the Charge Sheet
29. The counsel for the petitioner submits that:
The petitioner is being charged under Sections 120 B, 121 and 121A IPC;
The Court cannot take cognisance of this case unless there is no previous sanction of the State or the Central Government under Section 196 CrPC;
There is no such sanction by the State Government.
30. In paragraph 24 of the counter affidavit filed by Sri Rajesh Kumar Srivastava, it is mentioned that the State Government has granted sanction on 30.7.2010. This sanction order is also annexed as CA-2 to that Counter Affidavit. There is no denial of the same. In view of this the cognisance by the Magistrate cannot be quashed.
31.The filing of the charge sheet merely indicates that prosecution has sufficient material to proceed with the case. Whether it is sufficient for the trial to proceed or not can be seen at the time of framing charge and question of discharge can be raised at that time. The trial Court has refused to discharge the Accused and framed the charge. The charge sheet cannot be quashed.
In re Order for Police Custody and Recovery
32. The counsel for the petitioner submits that the order granting police custody is illegal as,
(i) The order was passed after 90 days;
(ii) It was not passed in the presence of the petitioner and without hearing her;
(iii) There was no affidavit in support of the application to grant the police custody;
(iv) The order granting police custody was illegal and consequently all recoveries are perse illegal and cannot be relied against the Accused.
33. The AGA submits that:
(i) The High Court passed an order on application of the State under Section 482 CrPC on 19.4.2010, but it could not be considered by the Magistrate as it was stayed from 23.4.2010 up to 7.7.2010 on the recall application filed by the petitioner. She cannot take advantage of her own act. This period has to be excluded from calculation and if this is excluded then the police custody was given within 90 days and was valid;
(ii) Under the First Proviso to sub-section (2) of Section 43D {section 43D(2)} of the Act, the detention of the accused can be more than 90 days. It could be upto 180 days. The petitioner was given in police custody within 180 days and it is valid;
(iii) The affidavit was proper and this is the way the affidavits are filed before the subordinate judiciary. In any case, this objection is merely of technical nature and it has not affected the merit of the case. If it is so required the proper affidavit can always be filed;
(iv) The Accused were in the judicial custody. The remand order for judicial custody was valid. By the order dated 19.7.2010 merely the custody of the Accused was changed to police custody from morning 8:00 hours on 20.7.2010 up to 16:00 hours of 22.7.2010. The proper safeguards were ensured. Neither the presence of the petitioner was necessary at the time of passing the order nor was she entitled to be heard at that stage.
34. In our opinion, it is not necessary to decide the submissions of the parties. Our reasons are as follows:
In pursuance of the order dated 19.7.2010, the Accused were given in the police custody and that period is over. It is fait accompli: an irreversible fact--it cannot be undone.
The only question that may arise is, if the order is illegal, then, whether recovery can be held to be perse untrustworthy so as to not place any reliance on the material recovered. It is appropriate to deal with this question in the trial rather than in the writ jurisdiction. The trial cannot be conducted here.
35. We leave these submissions to be decided in the trial.
In re Damages
36. The petitioner was arrested and a criminal case has been registered. The trial is going on. According to the State, tomorrow is the date fixed for the prosecution evidence.
37. At this stage, it cannot be said whether the prosecution is mallacious or not. If the need be, the petitioner would be at liberty to take appropriate proceeding after the trial is over.
In re Bail Application
38. The counsel for the petitioner has brought to our notice the paragraph 3 as well as paragraphs 64 to 71 of the writ petition and submits that:
There are difficulties in getting the bail application heard before the Single Judge; and We should hear and deal with the bail application.
39. The petitioner has already filed a bail application before this Court. Its hearing was deferred by the Single Judge on 28.5.2010 till the appropriate orders were passed on the application filed by the petitioner to recall the order passed by the Court on 19.4.2010. This was a proper order.
40. In this writ petition, an order was passed on 7.10.2010 directing the office to list the bail application in the next cause list before the appropriate bench peremptorily.
41. The order sheet of the bail application indicates that there is a report dated 26.10.2010 that the case is being listed in pursuance of the order dated 7.2.2010 passed in this writ petition.
42. The next order on the order sheet of the bail application dated 1.11.2010 indicates that 10 days time was granted to the State to place the details of the materials found in the recovery at the time when Accused were in the police custody. Thereafter, the order sheet indicates that on 12.11.2010 the case was adjourned on the request of the counsel for the petitioner.
43. It is not clear as to how this bail application was tagged up along with this writ petition. However, on 18.11.2010, when this writ petition was listed before us, the bail application was also listed.
44. On that date, the counsel for the petitioner stated that the reference to the bail application might be necessary and the bail application may be listed along with the writ petition. This is how the bail application continued here and could not be heard. This was at the request of the counsel for the petitioner.
45. The bail application is cognisable by a single judge. It is proper that it should be heard by the appropriate bench in its turn. There is no justification to hear it here. Let it be listed at an early date before the appropriate bench for disposal in accordance with law.
CONCLUSIONS
46.There is no merit in the writ petition. However, we wish to clarify that we have discussed the case or made observations for deciding this writ petition. They are for the purposes of this writ petition alone. The bail application and the trial of the Accused may be decided in accordance with law without being influenced by any observation made in this judgment.
47. With the aforesaid observations, the writ petition is dismissed.
Order Date :- 26.11.2010 LBY