REPORTABLE

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

     CRIMINAL APPEAL NO(s). 949  OF 2019     (Arising out of SLP(Crl.) No(s). 1253 of 2019)

ASIM SHARIFF   ….Appellant(s)

VERSUS

NATIONAL INVESTIGATION AGENCY …Respondent(s)

J U D G M E N T

Rastogi, J.

1. Leave granted.

2. The present appeal has been preferred by the accused

appellant against whom a criminal case bearing no. RC 04/16­

NIA­HYD came to  be registered along with  four other  accused

persons for the offences punishable under Sections 120­B, 109,

150, 153A, 302, 201 read with Section 34 of IPC; Sections 3 and

27 of the Arms Act and Sections 15,16,17,18 & 20 of the

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Unlawful Activities(Prevention) Act, 1967(hereinafter being

referred to as “UAP Act”).

3. After completion of the investigation, final report was

submitted before the trial  Court against the  accused  persons

including  appellant.   The  appellant claims that there  was  no

material for registering the criminal case neither investigating nor

submitting the final report against him.   At this stage, the

appellant filed application under Section 227 of Code of Criminal

Procedure, 1973(hereinafter being referred to as “CrPC”) seeking

his discharge from the case for the aforesaid offences.   The

application was dismissed by the trial Judge/Special Judge who

ordered for framing of charges against him for the aforesaid

offences under Order dated 2nd  January, 2018 came to be

challenged by the appellant in a writ petition filed under Article

226 and 227 of Constitution of India read with Section 482 CrPC

which was dismissed by a lucid impugned judgment dated 22nd

November, 2018 which  is a subject matter of  challenge  in the

instant appeal.

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4. The background facts giving rise to this appeal which needs

to be noted are that a criminal case came to be registered as

Crime No. 124/2016 on 16th  October, 2016 for the offences

punishable under Section 302 read with Section 34 IPC by

Commercial Street Police after a complaint was filed by one

Jayaram(CW­1), who stated that on 16th October, 2016 at around

12.40  p.m.  when  he along  with  his friends  namely  Rudresh,

Harikrishna and Kumar assembled near Srinivas Medical Stores,

Shivajinagar, one person(accused) being the pillion rider of  the

motorcycle hacked Rudresh with a sharp edged and lethal

machete on the right side of his neck and fled.   Rudresh was

taken to a hospital wherein he was declared brought dead.

5. Initially, four accused persons (Accused nos. 1 to 4) were

arrested on 27th October, 2016.  Accused no. 5(appellant herein)

was arrested on 2nd November, 2016.   Subsequently, the task of

investigation was entrusted to National Investigating Agency(NIA)

by the Union of India, Ministry of Home Affairs, New Delhi on 7th

December, 2016.  NIA registered FIR in RC No. 24/2016 against

all five accused persons including the appellant.   After

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investigation, the charge sheet  was submitted  against all five

accused persons on 21st  April, 2017 which stated that accused

nos. 1 to 4 conspired with the accused appellant(accused no. 5)

to kill RSS  members and in furtherance of their acts, they

committed offence punishable under Sections 302, 201 read with

Section 34 IPC.   The accused persons were said to be in

possession of weapons without license, thereby it attracted the

offence punishable  under Sections 3 and 27 of the  Arms Act.

Further, the acts of the accused persons including the accused

appellant amounted to offences punishable under Sections 120B,

109, 150, 153A, 302, 201 read with Section 34 IPC and under

Sections 16(1)(a), 18 and 20 of the UAP Act.

6. The  appellant sought  discharge  under  Section  227  CrPC

along with other accused persons which came to be rejected vide

order dated 2nd  January, 2018 and framed charges against the

accused persons including accused appellant.  Special NIA Court

under its Order dated 2nd  January, 2018  while deciding the

application of appellant seeking discharge under Section 227

CrPC observed that it was admitted by the defence counsel that

the appellant is the President of Bengaluru unit of Popular Front

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of India(PFI) and the other accused persons nos. 1 to 4 are also

the members of PFI.  It was also admitted by the defence counsel

that there  was frequent telephonic/mobile  phone  conversation

among the accused persons nos. 1 to 5 prior and subsequent to

16th October, 2016(the date of the incident) which gave rise to the

Special  NIA  Court to  arrive  at  a conclusion that the  material

placed in the charge­sheet on record gives rise to sufficient

grounds of subjective satisfaction of prima facie case of alleged

offence of conspiracy being hatched among the accused persons.

It further observed that the accused appellant has failed to justify

the necessary ingredients of Section 227 CrPC and finally held

that the matter deserved to be proceeded with framing of charge.

The said order came to be affirmed by the High Court on

dismissal of the writ petition preferred by the unsuccessful

appellant vide its impugned judgment dated 22nd  November,

2018.  

7. Ms. Kamini Jaiswal, learned counsel for the appellant

submits that the impugned judgment has resulted in grave

miscarriage of justice and is based on an erroneous

interpretation of the factual circumstances of the case and the

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High Court has not taken into consideration the oral and

documentary evidence on record in the proper perspective which

has vitiated the entire proceedings and led to gross injustice.

8. Learned counsel  further submits that the bare reading of

the extract of charge sheet reveals that the prosecution has failed

to adduce evidence which was against the appellant. That CW 1

to 53, 55 to 76, 78 to 86, 86­92, 94 to 96 and 98 to 112 did not

whisper anything against the appellant and the other witnesses

relied by the prosecution to make out a case against him are the

witnesses of the Mahzar proceedings who provided 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 the

appellant is without any basis and merely on suspicion as there

is nothing to reveal that the appellant was the main conspirator

behind the alleged  murder termed as a terror attack.   The

allegation that he planned the conspiracy along with other PFI

members to kill RSS members and arranged conspiracy meetings

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and executed the plan of striking terror among a section of people

belonging to  RSS  is concocted  and  without  any  substance  as

nothing incriminating has been recovered from the appellant or

to support the prosecution story and in the given circumstances,

rejecting his application for discharge under Section 227 CrPC by

the trial Judge and affirmed by the High Court is not sustainable

in law.

10. Learned  counsel further  submits that though  the  alleged

incident as per the case of  prosecution has been planned and

executed on the last day of Navaratri being Vijayadashmi whereas

it is a matter of record that the Navaratri was already over on the

said date and the Vijayadashmi was on 11th October, 2016 and

the alleged incident was on 16th  October, 2016.   Such a

statement was made just to prejudice the mind of the Court to

frame charge against the appellant which is unreasonable and

unjustified and this has not been looked into and appreciated by

the High Court in its impugned judgment.

11. Learned counsel further submits that none of the accused

in this case are the member of any terrorist organisation which

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are banned under the schedule of UAP Act and, therefore, the

question of invocation of UAP Act, after completion of

investigation, was not attracted and at least the charge framed

against him for the offences under UAP Act was not legally

sustainable in law.

12. Per contra, Mr. Aman Lekhi, learned ASG appearing for the

respondent with his usual vehemence submits that Section 15 of

UAP  Act covers  both the  act of an individual  and  a terrorist

gang/association and as per Section 20 of the UAP Act, it is not

necessary for an association/organisation to be included in the

schedule, for punishing a terrorist act carried out by them.   

13. Learned counsel further submits that the incident occurred

on a day when the RSS workers had organised a path sanchalan,

and the deceased, who was dressed  in uniform, was brutually

attacked by the accused persons whereby his throat was slit in a

single blow, resulting in his immediate death.  Admittedly, there

is no animosity between the appellant and deceased.  The nature

of the act including the recoveries made shows that the

consequences were intended to be beyond the physical act itself

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and was to create fear in the minds of the people at large and to

create insecurity and foster disharmony.

14. Learned counsel further submits that the series of evidence

reveals the appellant’s involvement in the commission of crime:­

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

ii) Seizure of banner dated 12th  December, 2016 which bore the names and photograph of all the accused including the accused appellant.

iii) Several telephone exchanges between accused no. 1 to 4 and the accused appellant.

iv) Disclosure report dated 4th November, 2016 which reveals that a leather purse containing a letter written by accused no.  4 was discovered at the office of the appellant, wherein accused no. 4 list out  17 murders committed by PFI in  near  past with  a  note  as to  why the  murder of  deceased Rudresh had attracted so much attention as compared to other murders.

v) Investigation revealed that about 8­9 months prior to the incident, all the accused had attended indoctrination classes organised by accused appellant and other members where accused persons were  recruited and brainwashed by  the appellant to kill RSS members.

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

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15. Learned counsel further submits that there is a strong

suspicion which leads the Court to think that the appellant has

committed an offence which clearly borne out from the charge­

sheet placed on record and the trial Court rightly held that the

prima facie case was made out against the appellant and after

the matter has been elaborately considered by the High Court in

revisiting the factual matrix taken note by the trial Court under

its  Order  dated 2nd  January,  2018,  no interference  at least is

called 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  of the  Court  at the time  of considering the  discharge

application.  This Court in Union of India Vs. Prafulla Kumar

Samal & Ors.   1 had an occasion to consider the scope of Section

227 CrPC and it held in paragraph 7 as under:­

“7. Section 227 of the Code runs thus:

“If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he

1 1979(3) SCC 4

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shall discharge the accused and record his reasons for so doing.”

The words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post  office to frame  the  charge  at the  behest  of the prosecution, but has to exercise his  judicial  mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or  into a weighing and balancing of  evidence and probabilities which is really his function after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or  the documents produced before the court  which ex  facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.”

17. In  Sajjan Kumar  Vs.  Central Bureau of

Investigation   2, this  Court  had an occasion  to  consider the

scope of  Section 227 and 228 CrPC.  The principles  which

emerged therefrom have  been taken  note of in  para  21  as

under:­

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

(i)  The  Judge  while  considering  the  question  of framing the charges under Section 227 CrPC has the  undoubted  power  to  sift  and  weigh  the evidence  for  the  limited  purpose  of  finding  out whether  or  not  a  prima  facie  case  against  the accused  has  been  made  out.  The  test  to

2 2010(9) SCC 368

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determine prima facie  case would  depend upon the facts of each case.

(ii)  Where  the  materials  placed before  the  court disclose  grave  suspicion  against  the  accused which has not been properly explained, the court will  be  fully  justified  in  framing  a  charge  and proceeding with the trial.

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

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

(v)  At  the  time  of  framing  of  the  charges,  the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on  record  and  must  be  satisfied  that  the commission  of  offence  by  the  accused  was possible.

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

(vii)  If  two  views  are  possible  and one of  them gives rise to suspicion only, as distinguished from

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grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.”

18. The exposition of law on the subject has been further

considered by this Court in State Vs. S. Selvi and Ors.   3 followed

in Vikram Johar Vs. State of Uttar Pradesh and Ors.   4

19. Taking  note of the exposition  of law  on the subject laid

down by this Court, it is settled that the Judge while considering

the question of framing charge under Section 227 CrPC in

sessions cases(which is akin to Section 239 CrPC pertaining to

warrant cases) has the undoubted power to sift and weigh the

evidence for the limited purpose of finding out whether or not a

prima facie case against the accused has been made out; where

the material  placed before  the Court  discloses grave suspicion

against the accused which has not been properly explained, the

Court will be fully justified in framing the charge; by and large if

two views are possible and one of them giving rise to suspicion

only, as distinguished from grave suspicion against the accused,

3 2018(13) SCC 455 4 2019(6) SCALE 794

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the trial Judge will  be  justified in discharging him.   It  is thus

clear that while examining the discharge application filed under

Section 227 CrPC, it is expected from the trial Judge to exercise

its judicial mind to determine as to whether a case for trial has

been made out or not.   It is true that in such proceedings, the

Court  is not supposed to hold a mini  trial  by marshalling the

evidence on record.

20. If  we advert to the facts of the instant case, initially a

criminal case came to be registered in Crime No. 124/2016 on

16th  October,  2016 for the offences  punishable  under  Section

302, 34 of IPC by Commercial 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 first information in R.C. No. 24/2016

including the appellant­Asim Shariff (accused no. 5) in the list of

the accused.   The task of investigation was entrusted to NIA by

the Union of India, Ministry of Home Affairs(Internal Security­1

Division),  North Block,  New Delhi through its orders dated 7th

December, 2016 as per Section 6(5) read with Section 8 of the

National Investigation Act.   In obedience to the said order, the

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NIA, Hyderabad Branch, registered the case in RC 04/16­NIA­

HYD for the offences punishable under Sections 120B, 109, 150,

153A, 302, 201 read with Section 34 IPC; Sections 3 and 27 of

the Arms Act and Sections 15, 16, 17, 18 & 20 of the UAP Act.

21. After completion of the investigation, final report was

submitted before the trial Court against the accused persons 1 to

5 on 21st April, 2017.   At this stage, the application filed by the

accused appellant under Section 227 CrPC seeking his discharge

from the charge for the aforesaid offences came to be dismissed

by the trial Court, after recording cogent reasons and order of

framing charge against him and other accused persons (accused

nos.  1 to  4)  under its  Order  dated  12th  January,  2018.  The

extract of the order is as follows:­

“22. It is needless to mention herein that this Court has already taken the cognizance of offences alleged and it is needless to mention herein that obtaining of sanction is condition precedent as on the date of taking cognizance of the offences alleged.  That the Sanction having  been obtained by the NIA at the time of cognizance of alleged offences and the cognizance having been already taken by this Court, this court is of the firm view that it is not good to pass any orders in respect of sanction for the simplest reason that passing of any orders with regard to genuineness  or  otherwise  of sanction, the  same would amounts to an act of usurping of appellate or revisional jurisdiction. That the order of taking cognizance is intact

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even on this day. Therefore, for the reasons assigned in these paragraphs and in the preceding paragraphs of this order,  NIA has established that material  adduced by  it are sufficient enough to proceed with the case and that the same do give subjective satisfaction of  existence of prima­facie case of alleged offences. Therefore, the subject matter of Point No.2 deserves to be answered in the Negative, that of Point No.3 deserves to be answered in the affirmative and that of point No.4 in the Negative and the said points are hereby answered accordingly. This court proceeds to pass the following:

ORDER

The application filed under Section 227 Cr.P.C. by the accused No.5 is hereby dismissed. That the case on hand deserves to be proceeded with framing of charge in respect  of  alleged offences as mentioned  in  the charge sheet as against all the accused persons.”

22. The unsuccessful appellant filed writ petition under Article

226 and 227 of the Constitution of India read with Section 482

CrPC.  The  High Court  after  analysing the  entire  material  on

record confirmed the view expressed by the trial Judge and held

as under:­

“ No doubt the present petition is invoking writ jurisdiction under the Constitution of India and inherent powers of this Court, regard being had to the fact that in the earlier round of litigation, the stand of the petitioner was specifically negatived by the orders of this Court. The matter has been urged, assessed and adjudicated in the proceedings and again the petitioner has come for the next round. On facts or in law there is no material worth to suggest fallibility of the proceedings in Spl. C.C. No.181/2017 pending on the file of XLIX Addl. City Civil & Sessions Judge (Special Court of 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 Act and under Section

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15, 16, 17, 18 and 20 of Unlawful Activities (Prevention) Act, 1967.”

23. That apart, we have also gone through the relevant record

and extract of the charge­sheet placed on record for perusal, the

fact reveals that the accused appellant is the President of

Bengaluru unit of Popular Front of India(PFI) and the other

accused nos. 1 to 4 are also the members of PFI.  It reveals from

the charge­sheet that there was frequent telephonic/mobile

conversation between appellant(accused no. 5) with other

accused persons(accused nos. 1 to 4) prior and subsequent to

16th October, 2016 (the alleged date of incident) which persuaded

the Court to arrive to a conclusion that there is a prima facie

material of conspiracy among the accused persons giving rise to

sufficient grounds of subjective satisfaction of prima facie case of

alleged offences of conspiracy being hatched among the accused

persons and truth & veracity of such conspiracy is to be

examined during the course of trial.     

24. After going through the records and the judgment impugned

before us, in the present  facts and circumstances,  we  find no

error in the judgment passed by the trial Court and confirmed by

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the High Court by the impugned judgment dated 22nd November,

2018 which calls for our interference.

25. We make it clear that what has been observed by this Court

is only for the purpose of disposal of the present appeal and any

observations made shall either way not prejudice the rights of the

parties during the course of trial and the trial Court may also not

to be influenced/inhibited by the observations made by us and

proceed with the trial independently in accordance with law.

26. With these observations, the appeal is dismissed.

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

………………………..J. (A.M. KHANWILKAR)

………………………..J. (AJAY RASTOGI)

New Delhi July 01, 2019

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