R.K.Krishna
Kumar, Sayeed Kidwai, K. Sridhar Vs. State of Assam & Ors [1997] INSC 893
(3 December 1997)
M.K.
MUKHERJEE, K.T. THOMAS
ACT:
HEADNOTE:
THE
3RD DAY OF DECEMBER, 1997 Present:
Hon'ble
Mr.Justice M.K.Mukherjee Hon'ble Mr.Justice K.T.Thomas Soli J.Sorabjee, Shanti Bhushan,
Arun Jaitley, Sr. Advs., Mahesh Jethmalani, Arvind Kumar, Upamanyu Hazarika, R.N.Karanjawala,
Ms.Nandini Gore, Ms. Karanjawala, Advs.
with
them for the appellants.
K.T.S.Tulsi,
Sr.Adv., Sunil Jain, Vijay Hansaria, Vikas Pawha, Advs. for M/s. Jain hansaria
& Co., Advs. with him for the Respondents.
The
following Judgment of the Court was delivered:
WITH CRIMINAL
APPEAL NO. 1158 OF 1997.
(Arising
out of SLP (Crl.) No. 3500 of 1997) WITH CRIMINAL APPEAL NO. 1159 OF 1997
(Arising out of SLP (Crl.) No. 3502 of 1997) WITH CRIMINAL APPEAL NO. 1160 OF
1997 (Arising out of SLP (Crl.) No. 3508 of 1997)
M.K.
MUKHERJEE, J.
Leave
granted in all these petitions Heard the learned counsel for the parties.
2. On
a First Information Report (F.I.R.) lodged by the Superintendent of Police,
Special Operation Unit (SOU), Assam, a case under Sections 120 B, 121, 121A and
122 of the Indian Penal Code and 10 and 13 of the Unlawful Activities
(Prevention) Act, 1967 (`Act' for short) was registered by the SOU Police
Station. The F.I.R. was based the State of Assam regarding secessional
activities of some militant organisations including United Liberation Front of
Assam (ULFA). In connection with that case three ULFA activists were arrested
by the police at Mumbai Airport on August
23, 1997. It is
alleged that their interrogation revealed that their hotel bills and the
medical bill of one of them, namely Mrs. Pranati Deka, who was admitted in a
hospital for child birth, were borne by TATA Tea Company Ltd. (`Company' for
short) under instructions from, amongst others, Shamsher Singh Dogra, the
General Manager of the Company. A few days later, a report appeared in various newspaper
circulating throughout the country of a Press Conference held by the Director
General of Police, Assam to the effect that the Company had not only paid the
personal bills of top ULFA militants but had also paid money, which ran to
several lakhs, to ULFA on various occasion. On perusal of the report Shri R.K.
Krishna Kumar, Shri S. Kidwai and Shri K. Sridhar, the Managing Director,
Executive Director and a Consultant of the company respectively, (the three
appellants before us) apprehended that they might be arrested in connection
with the above case. They then filed separate applications before the Bombay
High Court under Section 438 of the Code of Criminal Procedure praying that
they might be directed to be released for with in the event of their, arrest at
the instance of the Director General of Police of Assam in connection with the above
case, or any other case that may be filed concerning the allegations of funding
of ULFA militants. Their prayer was allowed by the Bombay High Court; and
aggrieved thereby the State of Assam preferred appeal in this Court after
obtaining special leave. This Court set aside the order of the Bombay High
Court as it was passed ex parte and transferred the anticipatory bail
applications filed by the appellants to the Gauhati High Court for disposal by
a Division Bench. This Court, however, permitted the appellants to continue on
the anticipatory bail granted by the Bombay Court till November
7, 1997.
Pursuant
to the said direction the applications for anticipatory bail were heard on November 7, 1997 by a Division Bench of the Gauhati
High Court and the prayer of the appellants was rejected. Hence these appeal at
their instance.
3.
Briefly stated, the case of the appellants, as can be culled out from the
affidavits (and the annexures thereto) filed before this Court, is as under:
(a)
The Company owns 21 tea gardens in the State of Assam and has 21,000 employees
in its roll. The company have had been the targets of extortion, killing and
kidnapping by the militant organisations, including ULFA. In the post several
attempts had been made to intimidate the employees of the Company and make
ransom demands on it. In the year 1993, Mr. B Bordoloi, a Senior Executive of
the Company stationed at Gauhati, was captured by one of those militant organisations
and kept in detention for a period of eleven months. Though the Company was
pressurized by the public, and the family of Mr. Bordoloi in particular, to pay
the ransom demanded by the militant organisation for securing his release it
refused to do so. Later on ULFA repeatedly made several demands on the Company
in the forms of a tax for each of the tea estates owned by it, walkie talkie
sets etc.. On each of such occasions the Company brought the demands to the
notice of the appropriate authorities of the Central Government either
personally through their officers or by letters and the Central Government had
put the Company in touch with its Intelligence Bureau.
(b)
According to the Company it was the Central Intelligence Agency which advised
it to continue negotiations with the militants but not to pay ransom/protection
money to them. Though the Company insisted that it would not make any payment
of unlawful money to the militants it formulated several social and community
welfare schemes for the people of Assam. The Company assets that all negotiation with militant organisations
took place with the knowledge and guidance of Central Government agencies.
(c)
While admitting that the Company negotiated with the ULFA, that some of its
officers met some leaders of that organisation in Bangkok in connection with
their demands, and that it paid the hospital bill and hotel bills of their
members in Mumbai it has submitted that to protect the larger interest of the
employees of the Company and its tea gardens, it was compelled to yield to some
of the demands of the organisations. The Company, however, categorically denied
to have paid any ransom to the ULFA or any other militant organisation.
4. On
the basis of the above facts and circumstances Mr. Shanti Bhushan who appeared
for the Company, contended that it could not be said that any officer of the
Company and committed any offence, far less the offences alleged against them.
5. Mr.
Tulsi appearing for the respondent-State of Assam, however, refuted the contentions of the Company and submitted that
investigation has revealed the involvement of a number of officers of the
Company, including the appellants, in the illegal and unlawful activities of
ULFA and other militant organisations and, therefore, the appellants should not
be granted anticipatory bail. Mr. Tulsi further submitted that denial of an
opportunity to have Investigating Agency to interrogate the appellants in
custody, confronting them with the information available with the Investigating
Agency, obtaining their version pursuant to the leads gained through
interrogation by conducting raids and searches of the hide-outs of the
militants has put the Investigating Agency at serious handicap in being able to
discover the extent and manner of the involvement of the employees of the Tata
Tea Company in `unlawful activities' within the meaning of the Act. To bring
home his contentions Mr. Tulsi handed over to us the case diary prepared and
maintained under Section 172 Cr.P.C.
6. On
a careful perusal of the case diary we find that the investigation has revealed
that some of the officers of the Company did meet top leaders of ULFA within
and outside India in which negotiations were held between them over the various
demands made by the latter and that the Company has expressed its willingness
to accede to some of those demands. The investigation has further reveled that
the Company has funded the organisation and the appellants had a role to play
in it.
7. On
the basis of the above materials collected during investigation, it is now to
be seen whether the appellants have committed the offences for which they are
sought to be made liable. Coming first to the offences under the Indian Penal
Code Section 120 B related to criminal conspiracy to commit any offence and
Sections 121, 121 A and 122 specifically relate to offences against the State.
While Section 121 provides for punishment of those engaged in waging war
against the Government of India, the other two Sections relate to conspiracy
and preparation to commit such offence by collecting arms etc., respectively.
8. To
ascertain the nature of offence envisaged under Sections 10 and 13 of the Act,
it wold be necessary to first refer to the definition of `unlawful activity' in
Section 2 (f) of the Act which reads as under:
"`Unlawful
activity', in relation to an individual or association, means any action taken
by such individual or association (whether by committing an act or by words,
either spoken or written, or by signs or by visible representation or
otherwise), - (i) Which is intended, or supports any claim, to bring about, or
any ground whatsoever, the cession of a part of the territory of India or the
secession of a part of the territory of India from the Union, or which incites
any individual or group of individuals to bring about such cession or
secession;
(ii)
which disclaims, questions, disrupts or is intended to disrupt the sovereignty
and territorial integrity of India;" 'Unlawful association' has been
defined in Section 2(g) to mean any association :
"(i)
which has for its object any unlawful activity, or which encourages or aids,
persons to undertake any unlawful activity, or of which the members undertake
such activity; or of which the members undertake such activity; or (ii) which
has for its object any activity which is punishable under Section 153-A of
Section 153-B of the Indian Penal Code, 1860 (45 of 1860), or which encourages
or aids persons to undertake any such activity, or of which the members
undertake any such activity:
Provided
that nothing contained in sub-clause (ii) shall apply to the State of Jammu
& Kashmir."
9.
Section 10 provides that whoever is and continues to be a member of an
association declared unlawful by a notification issued under Section 3 which
has become effective under sub-section (3) of that Section, or takes part in
meetings of any such unlawful association, or contributes to, or receives or
solicits any contribution for the purpose of any such unlawful association or
in any way assists the operation of any such unlawful association shall be
punishable with imprisonment for a term may extend to two years and shall also
be liable to fine.
10.
Section 13 speaks of punishment for `unlawful activities' and it reads as
follows: material allegations levelled against the appellants are considered vis-a-vis
the `unlawful activities' envisaged under the Act it cannot be said that they
are liable for an offence under Section 13 of the Act, much less under the
aforesaid offences under the Indian Penal Code. Resultantly, the question of
granting anticipatory bail to the appellants under Section 438 of the Code of
Criminal Procedure cannot and does not arise for an offence under Section 10 of
the Act is bailable; and a direction under the former can be issued only in
respect of a non-bailable offence. Viewed in that context the merits of the
appellants' contention that they have not committed any offence alleged against
them need not be gone into.
10.
With the above observations we dispose of these appeals.
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