Naresh Kumar Khubwani ''alias'' Nandu and Another Vs State of Chhattisgarh

@JUDGMENTTAG-ORDER

D.R. Deshmukh, J.@mdashThis criminal revision arises out of the order dated 11-9-2008 passed by the IIIrd Additional Sessions Judge, Raipur in Sessions Trial No. 76/2008, whereby charge under Sections 2(b) and 8(3) of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005 (henceforth ''the Adhiniyam'') was framed against the petitioners. The charge reads as under:

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2. In this criminal revision it is not in dispute that by Notification No. F-4-101/Home-C/07, dated the 12th April, 2007 the Communist Party of India (Maoist) has been declared by the State Government as an "unlawful organisation" with effect from 12th April, 2007 for a period of one year.

3. Brief facts in nutshell are that the petitioners are partners of the Firm "Naresh Bazar" situated in Bilaspur (Chhattisgarh). It is alleged that on 10-4-2007 one Sunil Choudhary placed an order with the petitioners for supply of 5,000 meters of olive green cloth for stitching uniforms for the Industrial Detective and Security Services at Raipur and paid Rs. 50,000/- in cash as advance. Order form was signed by Sunil Choudhary. On the same day, the petitioners placed order with Janta Cloth Syndicate which delivered 2219 meters of olive green cloth to the Firm "Naresh Bazar" on 9-7-2007,24-11-2007 and 7-12-2007. In the meanwhile, on 4-6-2007, an amount of Rs. 3,50,000/- was also paid in cash by the said Sunil Choudhary to the petitioners. Sunil Choudhary made further payments of Rs. 1,00,000/- on 15-7-2007, Rs. 1,00,000/- on 18-8-2007, Rs. 2,65,709/- on 21-8-2007, Rs. 1,00,000/- on 13-10-2007, Rs. 20,000/-on 28-10-2007 and Rs. l,00,000/-on 10-11-2007. It is further alleged that 1550 olive green uniforms worth Rs. 10,76,853/- for 725 security guards were got tailored by the petitioners and delivered to Sunil Choudhary. It is further alleged that the petitioners had got uniforms for Security Guards tailored from Dayaram Sahu, N. Murli and his wife N. Sujata under specific instructions to the tailors for not putting their label and for not stitching the label of the Industrial Detective and Security Services at Raipur on the uniforms and to maintain absolute secrecy about the order. It is also alleged that the petitioners were in constant touch with K.S. Priya wife of Sunil Choudhary on mobile phone. Records of calls made to K.S. Priya and Sunil Choudhary were also seized during investigation. On 22-1-2008, K.S. Priya and one Ku. Meena Choudhary, active members of an unlawful organisation namely Communist Party of India (Maowadi), were arrested and interrogated. Cash Rs. 5,31,000/-, huge quantity of fire arms, ammunitions and walkie-talkie were seized on 22-1-2008 at Bhilai from K.S. Priya wife of Sunil Choudhary. One black colour bag containing circulars and literature of the unlawful organisation, one live cartridge, Rs. 6,400/-, one transistor and Nokia Mobile Phone were recovered from the possession of Ku. Meena Choudhary from the Kaamkaji Mahila Chhatrawas Maharashtra Mandal, Choubey Colony, Raipur. It was alleged that both the petitioners had assisted in the management of the unlawful organisation by accepting order for supply of huge quantity of tailored uniforms of olive green colour of the unlawful organisation and by actually supplying the order after getting the uniforms tailored in absolute secrecy.

4. In the impugned order the learned IIIrd Additional Sessions Judge, Raipur mentioned the following reasons for framing charge against the petitioners:

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5. Arguments of Shri Surendra Singh, learned Senior Advocate appearing on behalf of the petitioners and Shri G.D. Vaswani, learned Government Advocate for the State/non-applicant were heard. Copies of documents u/s 173 of the Code of Criminal Procedure were perused.

6. The main thrust of the arguments advanced by Shri Surendra Singh, learned Senior Advocate appearing on behalf of the petitioners is that the petitioners were wholly ignorant of any connection of Sunil Choudhary with the unlawful organisation and had acted bonafide while supplying the tailored olive green colour uniforms to Sunil Choudhary. The petitioners maintained receipts of purchase and made entries in their books of account and did not charge any excess profit. Thus, the transaction was a perfectly normal and natural transaction in due course of business. Bilaspur (Chhattisgarh), not being a specified area, the petitioners can also not be said to have abetted the unlawful activities of the unlawful organisation. Placing reliance on Sanghi Brothers (Indore) Pvt. Ltd. Vs. Sanjay Choudhary and Others, , learned Senior Advocate for the petitioners argued that even if the entire prosecution case is accepted at its face value, there was noprima facie case for framing charge under Sections 2(b) and 8(3) of the Adhiniyam against the petitioners. Learned Senior Advocate for the petitioners did not dispute that the police had seized the call records showing that the petitioners had made calls on mobile phone to K.S. Priya and Sunil Choudhary.

7. On the other hand, Shri G.D. Vaswani, learned Government Advocate for the State/non-applicant argued that the learned Additional Sessions Judge has, while framing charge, passed a well reasoned and speaking order and while exercising revisional jurisdiction, this Court should not readily interfere with the impugned order unless it is shown to be perverse. Learned Government Advocate for the State/non-applicant further argued that the law relating to framing of charge is well settled that a meticulous examination of materials u/s 173 of the Code of Criminal Procedure is not to be undertaken by the Court and a strong suspicion regarding the involvement of the petitioners in the commission of the offence would by itself be sufficient ground for framing charge against the petitioners. The probative value of the materials placed by the petitioners is not to be seen and the probable defence to be taken by the petitioners was not to be considered at the stage of framing of charge. On these premises, it was urged that no interference is called for in the impugned order.

8. Having heard the rival submissions, I have perused the record. Section 8(3) of the Adhiniyam provides as under:

8. Penalties. (1) *** *** ***

(2) *** *** *** ***

(3) Whoever manages or assists in the management of an unlawful organization or promotes or assists in promoting a meeting of any such organisation or any member thereof, or in any way indulges in any unlawful activity of such organization in any manner or through whatever medium or device shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

9. The test for framing of charge has been discussed in State of Maharashtra, Etc. Etc. Vs. Som Nath Thapa, Etc. Etc., , which was also relied in Sanghi Brothers (Indore) Pvt. Ltd. (supra), as under:

7. In State of Maharashtra and Ors. v. Som Nath Thapa and Ors. (1996) 4 SCC 659, this Court observed as follows:

***                                  ***                     *** 

32. The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence; a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.

In Sanghi Brothers (Indore) Pvt. Ltd. (supra), the Supreme Court also noted a decision in State of Karnataka Vs. L. Muniswamy and Others, , in which it was held that--

At the stage of framing the charge the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of offence by the accused. The Court has to see while considering the question of framing the charge as to whether the material brought on record could reasonably connect the accused with the trial. Nothing more is required to be inquired into.

In Sanghi Brothers (Indore) Pvt. Ltd. (supra), the Supreme Court further observed in Paragraphs 10 and 11 as under:

10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of & prima facie cease to be applied.

11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned Counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the Court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction ...

10. Keeping in mind the principles laid down by the Supreme Court of India for framing of charge, I have carefully perused the copies of documents u/s 173 of the Code of Criminal Procedure filed by the prosecution in Sessions Trial No. 76/2008. The following material produced by the prosecution arouses a strong suspicion against the petitioners for being involved in providing assistance in the management of an unlawful organisation:

(a) Acceptance of huge amount of money in cash for supply of tailored uniforms from Sunil Choudhary without verifying whether the organisation called Industrial Detective and Security Services existed at Raipur.

(b) Placing orders by the petitioners to the tailors Dayaram Sahu, N. Murli and his wife N. Sujata for tailoring olive green coloured uniforms with a specific direction not to stitch their label or the label of the security organisation while maintaining absolute secrecy about the same.

(c) Seizure of huge quantity of arms and ammunition and cash by the police from K.S. Priya wife of Sunil Choudhary.

(d) The fact that the petitioners were in constant touch on mobile phone with K.S. Priya and Sunil Choudhary.

(e) The fact that 1550 uniforms were tailored without taking measurement of any security personnel.

(f) The agreement dated 10-4-2007 was seized by the police from the house of K.S. Priya alias Malti wife of Sunil Choudhary.

(g) Statement of tailor Kamod Kumar Dewangan u/s 161 of the Code of Criminal Procedure which reveals that N. Murli had entrusted him the work of tailoring 252 uniforms and given instructions that the orders for tailoring uniforms had been placed by the petitioners herein who had specifically directed that label of the tailor or any other label was not to be stitched on the uniforms and uniforms were to be stitched under strict secrecy.

(h) Statement of Mohsin and Santosh u/s 161 of the Code of Criminal Procedure reveals that on 26-1-2008 police had seized naxalite uniforms from Santosh, the servant of tailor N. Murli who had divulged that thousands of similar uniforms were tailored by them in the past on the orders placed by Naresh Bazar and that there were instructions from the owner of Naresh Bazar that no stickers were to be stitched on the uniforms which had to be tailored under strict secrecy.

11. Thus, the documents u/s 173 of the Code of Criminal Procedure if accepted at its face value, raise a strong suspicion of the involvement of the petitioners in providing assistance in the management of an unlawful organisation by supplying tailored uniforms. I am, therefore, of the considered opinion that the learned IIIrd Additional Sessions Judge, Raipur rightly held that there is aprima facie case u/s 8(3) read with Section 2(b) of the Adhiniyam against the petitioners. No such illegality as would warrant any interference in exercise of revisional jurisdiction is seen in the impugned order.

12. The criminal revision being devoid of any merit is dismissed.