CRL.REV.(P) No.600/2008 & Bail Appln.No.2165/2008 Page 1 of 22 IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.REV.P. 600/2008 & CRL.M.A. 12890/2008 Reserved on: 4th February 2009 Date of decision: 17th February 2009 THOUNAOJAM SHYAMKUMAR SINGH ..... Petitioner Through: Mr. K.K. Sud, Senior Advocate with Mr.Ghanshyam Sharma and Mr.Alok Rai, Advocates. versus STATE ..... Respondent Through: Mr.Pawan Bahl, APP for the State. BAIL APPLN. 2165/2008 THAOUNAOJAM SHYAMKUMAR SINGH ..... Petitioner Through: Mr. K.K. Sud, Senior Advocate with Mr. Ghanshyam Sharma and Mr.Alok Rai, Advocates. versus STATE (GOVT OF NCT OF DELHI) ..... Respondent Through: Mr.Pawan Bahl, APP for the State. CORAM: HON'BLE DR. JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes JUDGMENT 17.02.2009 S. Muralidhar, J. 1. The petitioner in both these cases is one of the accused in FIR No. 70 of 2006 registered at Police Station Special Cell under Sections 121/121- A/122/ 123, 419, 420, 468 and 471 IPC, Sections 18, 19 and 20 of the Unlawful Activities (Prevention) Act, 1967 [UAPA] and Sections 3 and CRL.REV.(P) No.600/2008 & Bail Appln.No.2165/2008 Page 2 of 22 9 of the Official Secrets Act, 1923(OSA). 2. By an order dated 25th July 2008, the learned Additional Sessions Judge (ASJ), Delhi passed an order on charge holding that prima facie the offences under Sections 120B, 474, 419, 468,471 IPC, Sections 3 and 9 OSA read with Sections 18, 19 and 20 UAPA are made out against the petitioner. Subsequently charge was framed against the petitioner by the learned ASJ by a separate order dated 2nd December 2008. Aggrieved by the order on charge dated 25th July 2008, the petitioner has filed Crl. Rev. (P) No. 600 of 2008. 3. In Bail Application No. 2165 of 2008 the petitioner seeks regular bail. Both petitions have been heard together and are being disposed of by this common order. 4. The case of the prosecution is that on 2nd October 2006 at about 11a.m specific information was received that high ranking two terrorists of the banned United National Liberation Front (UNLF) were going to Kathmandu from IGI Airport, Delhi by an Indian Airlines Flight No. IC 813. One sympathizer of the organization was also with them. The information was recorded in the daily diary. A team of police officials was constituted under the supervision of Inspector Mohan Chand Sharma. The raiding party rushed to IGI Airport at around 1.10 pm. There the police officials came to know that three passengers, Maibam Milan Singh, Shyam Kumar (the petitioner) and R.K. Romeo Singh had been off loaded by the airline. The said three persons were intercepted as CRL.REV.(P) No.600/2008 & Bail Appln.No.2165/2008 Page 3 of 22 they emerged from the airport. M.K. Singh and R.K.Romeo Singh were found in possession of fake identity cards apparently issued by the Forest Department, Government of Manipur, Imphal. It was also revealed that they were travelling to Nepal on the basis of those fake identity cards. The three persons were then brought to the office of Special Cell where they were interrogated. Their luggage was also checked. During interrogation, it was revealed that the actual name of M.Milan Singh was M.J.K. Singh. The real name of R.K. Romeo Singh was found to be P.G. Singh. The name of the third person was revealed as Thounaojam Shyamkumar Singh (T.S.K. Singh). 5. The charge sheet filed at the conclusion of the investigation sets out the further case of the prosecution as under: “In order to further verify the facts, all the three were brought to the office at Special Cell/NDR where a thorough interrogation was carried out from them and the search of their luggage was also carried out. During interrogation, real name of M. Milan Singh was revealed as Moirangthem Jayanta Kumar Singh S/o Mirangthem Ananda Singh R/o Wangkhei Keithel Asangbi PS Porompat Imphal East, Manipur, real name of Mr. R.K.Romeo Singh was revealed as Phanjoubam Ghanshyam Singh S/o Ph Bhorot Singh R/o Wangkhei Konsam Leiki, Imphal East, Imphal and the name of the third person was revealed as Thounaojam Shyam Kumar Singh S/o Th. Binoy Kumar Singh R/o Uripok Yambem Leiki, Imphal West Manipur. During the search of baggage of Moiranghthem Jayanta Kumar Singh, one Pend rive was recovered. During the search of baggage of Phanjoubam Ghanshyam Singh,one CD (Compact disk) was recovered. The recovered Pen Drive and CD were CRL.REV.(P) No.600/2008 & Bail Appln.No.2165/2008 Page 4 of 22 scrutinized and after scrutiny it was revealed that the pen drive contains the information regarding deployment of Army, BSF, CRPF etc. in Manipur, the details of their outfit members, details of Arms/ammunition and explosives etc. available in their organization (AK-47, 6 Assault rifles, missiles, RDX etc.) The scrutiny revealed that their organization UNLF was maintaining full fledged brigades/battalions of their militants on the parallel lines of Indian Army and these members of the banned militant organizations were even being paid salaries according to different ranks. Scrutiny of the CD reveals about their training camps, strength of the organization, locations and deployment etc in the State of Manipur. The print outs of the data stored in the pen drive have been taken into police possession through a seizure memo. The scrutiny of the Pen drive, CD and interrogation of Moirangthem Jayanta Kumar Singh & Phanjoubam Ghanshyam Singh who are self-styled Lieutenant Colonel‟s in civil wing and Defence wing respectively, revealed that both were engaged in waging war against the nation and carrying out unlawful activities in the State of Manipur and in the consequence they had come to Delhi to set up a base for their organization in Delhi. Thounaojam Shyam Kumar Singh R/o above is also involved in harbouring them, aiding them financially to carry out their unlawful activities, thereby conspiring with them to wage a war against nation.” 6. As regards the precise role of the petitioner here the charge sheet states as under: “During interrogation, accused Thounaojam Shyam Kumar Singh disclosed that he is providing logistic and other supports to the members of banned terrorist outfit KYKL (Kanglei YawolKanna Lup) and UNLF. He is an active member of Indian National Congress-Congress-I in CRL.REV.(P) No.600/2008 & Bail Appln.No.2165/2008 Page 5 of 22 Manipur. He has contested for MLA in 2001 from Nationalist Congress Party (NCP) and in 2002 from Congress-I. After completing graduation in 1993, he opened a school in his village to teach village children by investing Rs. 3000/-. He run this school for 2 years and closed it when he got married in 1995 as there was no profit in running school. Thereafter, he started farming in village along with other brothers and worked as artisan upto 1997. Thereafter, he engaged in social working in political field and started roaming in villages for support. During this period, many underground terrorists met him as there were the camps of PLA, UNLF, KYKL, KUKI etc. He started gaining support of local people as well as terrorist outfits and in the year 1999, he joined Nationalist Congress Party-Sharad Pawar- P.A. Sangma group as an active member and in 2000, contested the election for MLA as NCP candidate and lost. In November 2001, he left NCP and joined Congress (I) as member. In the year 2002, he contested for Andro seat as MLA from Congress (K) and lost. After losing election, he started working as a sub-contractor and got the job of constructing road in Andro area having estimated cost of 48 lakhs, he got this contract through political influence. Thereafter, he started getting more and more contracts. One of his village person namely Loya, a commander of KYKL (killed) was his very close friend before joining militancy. After joining KYKL, Loya used to talk him on telephone. During short span, he came close to other members of KYKL. In March 2003, some KYKL people came at village including Langanba and talked him about his previous election etc. and also promised him to help in next election if he provided them safer hideout and logistic help and he agreed. Thereafter, he developed close relation with KYKL people. In April 2003, the KYKL people kidnapped a businessman namely Manoj Kumar Sethi (Non-Manipuri) – CRL.REV.(P) No.600/2008 & Bail Appln.No.2165/2008 Page 6 of 22 a businessman and demanded a ransom of Rs. 1 crore, when the demand of KYKL people was not fulfilled, KYKL people killed him. He was also named in this case and arrested along with KYKL people namely Jadumani and 4 more people for assisting in kidnapping. The NSA was also imposed upon him for this heinous crime. He is not having any contractor licence but due to political influence and support of the members of various terrorist outfit working as sub-contractor. On 26th August 2006, he visited Kolkata to get a contract for the Manipur House, Kolkata. While staying at Staden Hotel, he met SS Lt. Col. Romeo through one Langanba KYKL Sec. Research & Publicity. They had come in Kolkata for a meeting with other outfit members to jointly wage war against India. Lamngamba asked him to bring two ladies of KYKL outfit from Guwahati to Delhi and he brought them to Delhi and stayed at Swisden Palace, Karol Bagh. He contacted with Langamba and the sameday Langamba and Romeo came and met with him in Hotel. On 9-10 September 2006, SS Lt. Col. Romeo R/o Column No. 3 contacted him over phone and asked to visit Kathmandu for arranging a hotel. With the apprehension that the UNLF people would assist him in election commencing in 2007, he went to Kathmandu on 24th September, 2006 and searched two hotels-Tibet Inn and Saligram Apartment Hotels and returned back on 25th September and conveyed the details of Hotels in Kathmandu. Further Romeo asked him that he is arranging the tickets from Guwahati-Delhi for 01.10.06 and Delhi-Kathmandu. Further, Romeo asked him that he is arranging the tickets from Guwahati-Delhi for 01.10.06 and Delhi-Kathmandu for 02.10.06 to visit Nepal. On 01.10.06, he along with Romeo and Jayanta reached Delhi. On 02.10.06, they were apprehended at IGI airport, Delhi. The accused Thounaojam Shyam Kumar was found involved in heinous cases in Meghalaya and Manipur. During CRL.REV.(P) No.600/2008 & Bail Appln.No.2165/2008 Page 7 of 22 investigation, the identity cards of Forest Department, Manipur seized from accused Moriangthem Jayanta Kumar Singh and Phanjoubam Ghanshyam Singh both R/o Colum No.3 were sent for verification to Forest Department, Sanjenthong, Imphal and the report from the office of Principal Chief Conservator of Forests, Imphal Manipur has come and both seized identity cards are found fake. A request regarding confirmation of arrival/departure of accused Thounaojam Shyam Kumar Singh R/o Column No. 3 to Nepal before October 2006 to fix up the venue for meeting of UNLF outfit was made to. The Assistant Director, CFB, MHA, GOI, Delhi and its report has arrived. As per report, accused Thouanjam Shyam Kumar Singh left India on 24.09.06 via Delhi via Kolkata by Flight No.IC- 747 and came to India on 25.09.06 via Delhi by Flight No. IC-814. A request regarding verification of seized air tickets dated 02.10.06 from Delhi to Kathmandu (Nepal) was moved to the office of “The Manager, Agency Section, Indian Airlines Limited, Airlines House, 39-Chitranjan Avenue, Kolkata” and its report has arrived. As per report, the air tickets of accused Thouanjam Shyam Kumar Singh and Phanjoubam Ghanshyam Singh were sold on 20.09.06 and air ticket of accused M. Jayanta Kumar Singh was sold on 21.09.06 from M/s Green Valley Enterprise, P.O.- Naharlangun (Itanagar) Arunachal Pradesh.” 7. The seized documents were sent to the Office of the Director General, Military Intelligence, GS Branch, Army Headquarters, New Delhi for expert opinion. The charge sheet in this regards states as under: “The opinion on secret documents has been received from Military Intelligence through Lt. Col. P. Shreeram GSO-I (Int.) for GOC-IN-C Headquarters, Eastern Command Pin- 908542 C/o 99 APO vide No. 103710/Manipur/GSI (A) CRL.REV.(P) No.600/2008 & Bail Appln.No.2165/2008 Page 8 of 22 dated 30.11.06 which is reproduced below:- (a) The nature of the contents can be termed as “classified”. (b) The persons possessing the documents ibid, lack the authority to possess and documents and clear documents or know its content, they may be charged accordingly. (c) The information gleaned from the documents is connected with security and integrity of the country and hence the dissemination to any unauthorized entity considered as breach of security. (d) In our opinion the information contained in the document is connected with security/defence matters of the country and hence its importance to adversaries/terrorists including UNLF is axiomatic.” Submissions of Counsel 8. The contentions raised by the petitioner in Crl. Rev. (P) No. 600 of 2008 are to the effect that no case is made out against him for framing the charges under of the provisions noticed hereinbefore. Mr.K.K.Sud, learned Senior Counsel for the petitioner submits that the closeness of the petitioner with the other two accused persons who were in possession of the so-called secret information was a casual one. According to him, there is nothing in the charge sheet when read as a whole which points to the petitioner actually financing the operations of the other two accused or of the organization UNLF. He then submitted that since the pen drives were not recovered from the petitioner, the charges under Sections 18 to 20 UPA were not justified. It is submitted that the use of fake identity cards was really to no effect since entry into Nepal did not require any visa. The mere booking of tickets from one travel agent did not also point to the existence of any conspiracy or the commission of CRL.REV.(P) No.600/2008 & Bail Appln.No.2165/2008 Page 9 of 22 any terrorist act as defined under Section 15 of the UAPA. In any event when the learned ASJ found that not even a prima facie case was made out against the petitioner for the offences under Sections 121, 121-A, 122 and 123 IPC, the question of invoking the provisions of the UAPA did not arise. It is vehemently argued that the information contained in the pen drives pertained to the UNLF itself and therefore not even the bare ingredients of the offence under Sections 3 OSA was made out. Since there was no material to show the abetment by the petitioner of the commission of the offence under Section 3 OSA, the offence under Section 9 OSA was not made out. Mr.Sud addressed elaborate arguments to persuade this Court to hold that there was no case made out, even prima facie, against the petitioner for the offence of „harbouring‟ as contemplated under Section 19 UAPA read with Sections 52-A and Section 212 IPC. The decision in Kalpnath Rai v. State (1997) 8 SCC 732 is relied upon. A reference is made to para 19 of the charge sheet which refers to substantial amounts having been contributed by the petitioner to the UNLF. It is submitted that there is no material at all to substantiate such allegation. Mr. Sud also points out that the charge drawn up by the order dated 2nd December 2008 does not square with the order on charge dated 25th July 2008. 9. As regards the plea for grant of regular bail, Mr. Sud refers to the earlier order passed by this Court on 5th February 2007 rejecting the petitioner‟s application for regular bail and the subsequent order dated 14th March 2007 granting him interim bail. When the matter went back before the learned Special Judge (ASJ), the plea of the petitioner for CRL.REV.(P) No.600/2008 & Bail Appln.No.2165/2008 Page 10 of 22 regular bail was again rejected by an order dated 10th September 2008. However, by the order dated 23rd September 2008, the learned ASJ continued the interim bail on medical grounds since it was stated that at that time the petitioner was an indoor patient in the Regional Institute of Medical Sciences, Imphal. This interim bail was to expire on 11th November 2008, by which time on 20th October 2008 the present Bail Application was filed by the petitioner in this Court. 10. Mr. Sud submits that whatever may have been the position as regards the petitioner being on interim bail earlier, when his Bail Application No. 2368 of 2007 was dismissed as withdrawn by this Court on 28th August 2008 and all interim orders stood vacated, it was only the order dated 10th September 2008 passed by the learned ASJ and the orders thereafter passed by this Court in the present application that were required to be examined. It may be mentioned here that in the present bail application by an order dated 11th November 2008, the interim bail granted by the learned ASJ on 23rd September 2008 was extended till 17th November 2008 “solely for the reason that the counsel is unwell”. Thereafter by subsequent orders dated 17th November 2008, 20th November 2008, 24th November 2008, 25th November 2008, 1st December 2008, 2nd December 2008, 5th December 2008, 15th December 2008, 16th December 2008, 17th December 2008 and 16th January 2009, the interim bail was kept extended for one reason or the other. 11. After change of roster the bail application was placed before this Court on 23rd January 2009 when again an adjournment was sought till CRL.REV.(P) No.600/2008 & Bail Appln.No.2165/2008 Page 11 of 22 27th January 2009 on the ground that Mr. Sud, the learned Senior Counsel, was unwell. As a last opportunity, the case was adjourned to 2nd February 2009 when arguments were concluded both on the bail application as well as the criminal revision petition. 12. Mr. Sud, makes an earnest plea for grant of regular bail to the petitioner. It is stated that the petitioner was elected as a Member of the Legislative Assembly in the elections held to the Manipur State Legislative Assembly in March 2007 on the ticket of the Manipur Peoples‟ Party. The petitioner was subsequently elected as the Deputy Speaker of the Manipur State Legislative Assembly since then. Mr.Sud submits that the petitioner being an MLA and a Deputy Speaker of the Manipur Legislative Assembly cannot, but be expected to comply with the court orders and not avoid the process of law. He points out that the petitioner was in custody from 2nd October 2006 till 18th March 2007 when he was released on interim bail. He has already surrendered his passport. He submits that the petitioner will appear before the trial court on every date, fully cooperate in the conclusion of the trial and not seek unnecessary adjournments. He submits that the trial is already underway and no such prejudice would be caused if on the petitioner undertaking to appear on all the dates of trial, he is enlarged on bail. It is submitted that as a holder of a public office, the petitioner would not avoid attending the trial court, subject of course to any contingency for which he will seek specific orders from the trial court. Although he does not dispute the fact that the petitioner has been only on interim bail for nearly two years now Mr.Sud submits that the petitioner has never violated any of the CRL.REV.(P) No.600/2008 & Bail Appln.No.2165/2008 Page 12 of 22 conditions on which interim bail was granted to him. Reliance is placed on the judgments in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra (2005) 5 SCC 294 and Jayendra Saraswathi Swamigal v. State of Tamil Nadu (2005) 2 SCC 13. 13. The plea of the petitioner is vehemently opposed by Mr. Pawan Behl, the learned APP. He points out that barring the period between 2nd October 2006 and 18th March 2007 when he was in custody, the petitioner never submitted to the process of law since he was released on interim bail by the order dated 14th March 2007. According to him despite there being no specific order continuing his interim bail during the period between 1st November 2007 and 18th September 2008, the petitioner did not surrender. He submits that it is needed extraordinary that despite this Court rejecting the petitioner‟s earlier Bail Application No. 2368 of 2007 for regular bail as withdrawn, his interim bail was continued from time to time for some reason or the other. He then points out that this position has continued even after his regular bail application was again rejected by the trial court on 10th September 2008. According to him, there is absolutely no warrant for continuing to extend such a benefit to the petitioner particularly given the gravity of the offence. 14. Mr. Behl adds that the mere fact that the petitioner is an MLA or a Deputy Speaker of the State Legislative Assembly of Manipur should not dilute the gravity of the offences which are extremely serious. He submits that the continued availability of the petitioner for the conclusion of the trial is absolutely essential, and if the petitioner is released on bail, CRL.REV.(P) No.600/2008 & Bail Appln.No.2165/2008 Page 13 of 22 he will go back to Manipur and it is highly unlikely that he will be regular in attending the trial in Delhi. He may find one excuse or the other to avoid presenting himself for the trial. He submits that the possibility of the petitioner influencing witnesses while continuing to hold an important public office cannot be ruled out. Also, the mere fact that the petitioner has complied with the conditions of interim bail, cannot really be a factor to grant him regular bail. The circumstances that should weigh with the court for grant of regular bail are different. Crl. Rev. P No.600 of 2008 15. This Court has considered the submissions of the petitioner both on the question of charge as well as the grant of regular bail. This Court first proposes to deal with the question of the validity of the order on charge insofar as the petitioner is concerned. The parameters that should weigh with the trial court while passing the order on charge have been well settled in the several judgments of the Supreme Court. The leading judgment in this regard is Kanti Bhadra Shah v. State 2001 (1) AD SC 1 where it was held: “12. If there is no legal requirement that the trial Court should write an order showing the reasons for framing a charge, why should the already burdened trial Courts be further burdened with such an extra work. The time has reached to adopt all possible measures to chalk out measure to avert all road-blocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail paced progress of proceedings in trial Courts would further be slowed down. We are coming CRL.REV.(P) No.600/2008 & Bail Appln.No.2165/2008 Page 14 of 22 across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order had been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial.” Also the decision in Hem Chand v. State of Jharkhand (2008) 5 SCC 113 the relevant portions of which read as under (SCC @ p.115-116): “9. It is beyond any doubt or dispute that at the stage of framing of charge, the Court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidence is brought on records at the trial. The documents whereupon the appellant intended to rely upon were: (i) an order of assessment passed by the Income Tax Authority and (ii) his declaration of assets. 13. The learned Counsel for the CBI is, thus, correct in his submission