Judgment & Order [CAV]

[1] This Criminal Petition is for quashing FIR under section 482 Cr.p.c. (Now section 528 BNSS) against the FIR No. 386(9) 2015 IPS U/s 16/20 UA(P) Act, 25(1-B) A Act.

[2] The Petitioner/Accused namely Oinam Lukhoi Singh and one Oinam Pradipkumar Singh was arrested on 18.09.2015 at about 11.50. p.m. by the team of CDO/IW on the charge that the petitioner and one Oinam Pradipkumar Singh is in possession of some small arms which are to be used for attacking security forces in the Imphal area.

[3] The petitioner was produced before the Ld. Judicial Magistrate First Class, Imphal West-1 for custody remand on 19.09.2015. However, the petitioner was released on bail by rejecting the police remand prayer.

[4] Hence this present petition U/s 482 Cr.P.C 1973 for quashing FIR No. 386 (9) 2015 IPS U/s 16/20 UA(P) Act, 25(1-B) A Act.

[5] Grounds for filing this petition are as as follows:

                    (i) Charge sheet could not file by investigating agency for about 10 years.

                    (ii) FIR Copy was never furnished to the petitioner. Thus, the petitioner cannot exercise his rights against a mala-fide criminal proceeding.

                    (iii) The alleged incident had taken place on 18-09-2015 but charge sheet could not file till date. Considering the nature of the allegations the fact that there is no progress made in the proceedings since the arrest of the petitioner on 18-09-2015 and continuing the investigating proceeding without the leave for further investigation from the court would amounts to unauthorized investigation and bad in law;

                    (iv) Continuing investigating proceeding without the leave of Court for unable to file charge sheet would be a persecution to the petitioner;

                    (v) The petitioner has got prejudice by this dormant FIR as he was restricted for going abroad to meet his daughter;

                    (vi) while considering the length of delay, the Hon'ble Court, will take into account the period consumed in the investigation of the case and the delay caused in actual proceedings in Court after filing of the charge-sheet. A speedy investigation and a trial are equally mandated both by the letter and spirit of the Code of Criminal Procedure, 1973.

[6] The ld. Counsel of the petitioner Mr. M. Ibotombi Sharma has submitted that there is no actus reaus with allegation and the petitioner/accused never belongs to a terrorist gang or terrorist organization which is involved in terrorist act and that no terrorist act was committed by the petitioner at any point of time. There is no prima facie material against the petitioner that he has committed any prejudicial activities against the State or within the territorial jurisdiction of India.

[7] Ld. Counsel of the petitioner has submitted that even assuming that the petitioner/accused is a member of CO-ORDINATION COMMITTEE (in short “CORCOM”) which is not a banned organization, there is no prima facie materials to show that he did acts of the nature of violence nor incited people to imminent violence, nor did an act intended to create disorder or disturbance of public peace by resort to imminent violence. The allegation in the FIR against the petitioner is that he is a member of banned outfits but no overt act is alleged against him. Nowhere in the police report did find any terrorist act or activities if such act has resulted in the death of any person and there is not even a single point suspicion at any point of time.

[8] Mr. M I Sharma, ld. counsel further submitted that there has been significant delay in the investigation and it also clearly seen from the police papers that there is change of place of occurrence and considering the nature of the case quashing of the alleged FIR shall not impact on the society.

[9] Ld. Counsel has also submitted that the alleged incident had taken place on 18.09.2015 but the charge sheet could not file till date. It is now 10 years, considering the nature of the allegations the fact that there is no progress made in the proceedings since the arrest from 18.09.2015 and continuing the investigating proceeding without the leave for further investigation from the court would amounts to unauthorized investigation and bad in law. Mr. M I Sharma, ld. Counsel for the petitioner refers to the decisions in Arup Bhuyan v. State of Assam: (2011) 3 SCC 377 and Indra Das v. State of Assam: (2011) 3 SCC 380 to the point that mere membership of a banned organisation is not sufficient to make a person offender, unless he resorts to violence and some overt act. In the present case, there is no overt act alleged against the petitioner except for the accusation of being a member of banned organisation.

[10] Mrs. Ch. Sundari, learned PP has submitted that the case under the said FIR was registered at Imphal Police Station on 19.09.2015 at 4.45 PM for investigation on receipt of the written report lodged by the complainant namely SI Gunachandra Chanam on the arrest and recovery of arms and ammunition from the accused persons. Both the accused were arrested being members of CORCOM organization working under S/S Nganba of CORCOM. They collected two small arms with ammunitions from their commander Nganba to use during 2012 Assembly Election which were recovered at their instances from two places they disclosed.

[11] Ld. PP has pointed out that ‘CORCOM’ means Coordination Committee, a conglomerate of 7 (seven) Valley based militant outfits formed in July 2011, namely, (1) KCP, (2) KYKL, (3) PREPAK, (4) PREPAK-PRO, (5) RPF, (6) UNLF, (7) UPPK. CORCOM is the umbrella body of the 7 (seven) unlawful outfits and UPPK was expelled from the CORCOM in January 2013. Hence, CORCOM is an unlawful organization. Both the accused persons were arrested being the members of CORCOM with recovery of two small arms and ammunitions at their disclosure and pointing.

[12] Learned PP has further stated that investigation is almost completed and further report will be submitted soon as strong prima facie evidences have already collected against the two accused persons. The plea of the petitioner that there has been change of place of occurrence is not true. It is clarified that the FIR was registered in Imphal Police Station, Imphal West District and the petitioner was arrested from Thoubal District. Arresting from another district does not amount to change of occurrence. It is urged that place of arrest and place of occurrence has no relevancy in deciding the place of jurisdiction for the case. With respect to the decisions of Arup Bhyuan (supra) and Indra Das (supra), learned PP submits the above cited decisions of 2 Judges Bench have been overruled by 3 Judges Bench in the case of Arup Bhuyan v. State of Assam: (2023) 8 SCC 745 holding that continued membership of a banned organisation will attract penal provisions under UAPA. It is also stated that delay in filing charge sheet is not a ground for quashing FIR as held in the celebrated case of State of Haryana v. Bhajan Lal: 1992 Supp (1) SCC 335. The following case laws have been relied by learned PP.

                    (i) Arup Bhuyan v. State of Assam, (2023) 8 SCC 745 (in short, Arup Bhuyan2)

                    100. In view of the above and for the reasons stated above we hold that the view taken by this Court in State of Kerala v. Raneef [State of Kerala v. Raneef, (2011) 1 SCC 784 : (2011) 1 SCC (Cri) 409] ; Arup Bhuyan v. Union of India [Arup Bhuyan v. State of Assam, (2011) 3 SCC 377 : (2011) 1 SCC (Cri) 855] and Indra Das v. State of Assam [Indra Das v. State of Assam, (2011) 3 SCC 380 : (2011) 1 SCC (Cri) 1150] taking the view that under Section 3(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and Section 10(a)(i) of the Unlawful Activities (Prevention) Act, 1967 mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incites people to violence and does an act intended to create disorder or disturbance of public peace by resort to violence and reading down the said provisions to mean that over and above the membership of a banned organisation there must be an overt act and/or further criminal activities and adding the element of mens rea are held to be not a good law. It is observed and held that when an association is declared unlawful by the notification issued under Section 3 which has become effective of sub-section (3) of that Section, a person who is and continues to be a member of such association is liable to be punished with imprisonment for a term which may extend to two years, and shall also be liable to fine under Section 10(a)(i) of the UAPA, 1967.

                    (ii) State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335

                    102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we have given the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

                    (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

                    (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

                    (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

                    (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

                    (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

                    (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

                    (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

                    (iii) Union of India v. Ramesh Gandhi, (2012) 1 SCC 476

                    31. Coming to the question of the scope of the jurisdiction to quash an FIR, either in the exercise of statutory jurisdiction under Section 482 CrPC or under Article 226 of the Constitution of India, the law is well settled and this Court in a catena of decisions laid down clear principles and indicated parameters which justify the quashing of an FIR. We do not propose to catalogue all the cases where the issue was examined but notice only two of them and indicate the consistent principles laid down by this Court in this regard.

                    (iv) Skoda Auto Volkswagen (India) (P) Ltd. v. State of U.P., (2021) 5 SCC 795

                    40. It is needless to point out that ever since the decision of the Privy Council in King Emperor v. Khwaja Nazir Ahmad [King Emperor v. Khwaja Nazir Ahmad, 1944 SCC OnLine PC 29 : AIR 1945 PC 18] , the law is well settled that the courts would not thwart any investigation. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the court will not permit an investigation to go on.

[13] This Court has perused the materials on record, considered the submissions of the parties and the decisions cited at bar. It is an admitted fact that the petitioner and another were arrested on allegation of planning violence with firearms during the 2012 Assembly Election and are alleged to be member of CORCOM, an umbrella organisation of 7 banned militant organisations from Manipur. The plea of the petitioner to the point that CORCOM is not a banned organisation has no substance for two reasons- (i) an association of banned organisations as notified in the Scheduled of UAPA will also be an unlawful organisation without being notified so; and (ii) CORCOM is also one of the ‘unlawful organisations’ as notified by the Central Government in Gazette of India dated 13.11.2013. It may be noted that vide Gazette of India dated 13.11.2023, Govt. of India banned ‘Corcom’ and others as ‘unlawful assembly’ for a period of five years under Section 3 of UAPA and the same is still an ‘unlawful association’. Relevant portion of the Notification dated 12.11.2023 is reproduced below:

                    “THE GAZETTE OF INDIA

                    Extraordinary

                    Part II Section 3 Sub Section (ii)

                    November 13, 2023

                    MINISTRY OF HOME AFFAIRS

                    NOTIFICATION

                    New Delhi, the 13th November, 2023

                    S.O. 4899(E).—Whereas, the Peoples’ Liberation Army generally known as PLA, and its political wing, the Revolutionary Peoples’ Front (RPF), the United National Liberation Front (UNLF) and its armed wing, the Manipur Peoples’ Army (MPA), the Peoples’ Revolutionary Party of Kangleipak (PREPAK) and its armed wing, the “Red Army”, the Kangleipak Communist Party (KCP) and its armed wing, also called the “Red Army”, the Kanglei Yaol Kanba Lup (KYKL), the Coordination Committee (CorCom) and the Alliance for Socialist Unity Kangleipak (ASUK), (hereinafter collectively referred to as the Meitei Extremist Organisations) have, as their professed aim, establishment of an independent nation by secession of Manipur from India through armed struggle and to incite indigenous people of Manipur for such secession;

                    And, whereas, the Central Government is of the opinion that the Meitei Extremist Organisations have been,-

                    (i) engaging in activities prejudicial to the sovereignty and integrity of India;

                    (ii) employing and engaging in armed means to achieve their aforesaid objectives;

                    (iii) attacking and killing the Security Forces, the Police and Civilians in Manipur;

                    (iv) indulging in acts of intimidation, extortion and looting of civilian population for collection of funds for their Organisations;

                    (v) making contacts with sources abroad for influencing public opinion and for securing their assistance by way of arms and training for the purpose of achieving their secessionist objective; and

                    (vi) maintaining camps in neighbouring countries for the purpose of sanctuaries, training and clandestine procurement of arms and ammunition;

                    And, whereas, the Central Government is of the opinion that the activities of the Meitei Extremist Organisations are considered detrimental to the sovereignty and integrity of India and that they are unlawful associations;

                    And, whereas, the Central Government is of the opinion that if there is no immediate curb and control of the Meitei Extremist Organisations they will take the opportunity to,-

                    (i) mobilize their cadres for escalating their secessionist, subversive, terrorist and violent activities;

                    (ii) propagate anti-national activities in collusion with forces inimical to sovereignty and integrity of India;

                    (iii) indulge in killings of civilians and targeting of the police and security force personnel;

                    (iv) procure and induct illegal arms and ammunitions from across the international border; and

                    (v) extort and collect huge funds from public for their unlawful activities.

                    Now, therefore, in exercise of the powers conferred by sub-section (1) of section 3 of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), the Central Government hereby declares the Meitei Extremist Organisations, namely, the Peoples’ Liberation Army (PLA) and its political wing, the Revolutionary Peoples’ Front (RPF), the United National Liberation Front (UNLF) and its armed wing, the Manipur Peoples’ Army (MPA), the Peoples’ Revolutionary Party of Kangleipak (PREPAK) and its armed wing, the “Red Army”, the Kangleipak Communist Party (KCP) and its armed wing, also called the “Red Army”, the Kanglei Yaol Kanba Lup (KYKL), the Coordination Committee (CorCom) and the Alliance for Socialist Unity Kangleipak (ASUK) along with all their factions, wings and front organisations, as unlawful associations.

                    The Central Government, having regard to the circumstances, is further of opinion that it is necessary to declare the Meitei Extremist Organisations viz., the Peoples’ Liberation army (PLA) and its political wing, the Revolutionary Peoples’ Front (RPF), the United National Liberation Front (UNLF) and its armed wing the Manipur Peoples’ Army (MPA), the Peoples’ Revolutionary Party of Kangleipak (PREPAK) and its armed wing, the “Red Army”, the Kangleipak Communist Party (KCP) and its armed wing, also called the “Red Army”, the Kanglei Yaol Kanba Lup (KYKL), the Coordination Committee (CorCom) and the Alliance for Socialist Unity Kangleipak (ASUK) along with all their factions, wings and front organisations as ‘unlawful associations’ and accordingly, in exercise of the powers conferred by the proviso to sub-section (3) of section 3 of the said Act, the Central Government hereby directs that this notification shall, subject to any order that may be made under section 4 of the said Act, have effect from the 13th day of November, 2023, for a period of five years.

                    [F. No. 11011/3/2023-NE-V]

                    PIYUSH GOYAL, Addl. Secy.”

[14] The plea of mere membership of a banned outfit will not attract penal offence unless such person does some overt act, is no longer a good law and the same has been overruled in Arup Bhuyan2 (supra) by a 3 Judges Bench of the Hon’ble Supreme Court. Hence, this Court is of the view that invocation of Sections 16/20 of UAPA against the petitioner does not suffer from any infirmity. In the present case, Mr. M I Sharma, learned counsel for the petitioner has miserably failed to show any other grounds for quashing of the FIR case as enumerated in the Bhajan Lal case (supra). It is the settled law that court will be very slow in interfering with criminal investigation and proceeding in absence of patent illegality. In the circumstances, the criminal petition is dismissed being devoid of merit. However, the I.O. is directed to complete the investigation as soon as possible and preferably within a period of six months from the date of receipt of this order keeping in mind the delay so caused. No cost.

[15] Registry is directed to send a copy of this order to the O.C., Imphal PS for information.