ASIM SHARIFFversusNATIONAL INVESTIGATION AGENCY

                         [2019] 8 S.C.R. 799                            799


                          ASIM SHARIFF                                  A
                                 v.
             NATIONAL INVESTIGATION AGENCY
                 (Criminal Appeal No. 949 of 2019)
                           JULY 01, 2019                                B
      [A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]
      Code of Criminal Procedure, 1973:
       s. 227 – Discharge under – Sought by appellant-accused
alongwith other accused – From the charges u/ss. 120B, 109, 150,        C
153A, 302, 201 r/w s. 34 IPC; u/ss. 3 and 27 of Arms Act; and u/ss.
16(1)(a), 18 and 20 of Unlawful Activities (Prevention) Act –
Application dismissed by trial court – Dismissal order affirmed by
High Court – Appeal to Supreme Court – Held: While examining
the discharge application u/s. 227, court is expected to exercise its
                                                                        D
judicial mind to determine as to whether prima facie case is made
out against the accused – The facts of the present case persuaded
the trial court to arrive at a conclusion that prima facie case of
alleged offences were made out, truth and veracity of which was to
be examined during the course of trial – Order of courts below do
not call for interference.                                              E
      Dismissing the appeal, the Court
       HELD : 1. 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          F
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       G
one of them giving rise to suspicion only, as distinguished from
grave suspicion against the accused, the trial Judge will be
justified in discharging him. Thus, while examining the discharge
application filed under Section 227 CrPC, it is expected from the

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                                799
800            SUPREME COURT REPORTS                      [2019] 8 S.C.R.


A     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. [Para 19] [807-E-G]
            2. The facts of the present case persuaded the Court to
B     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. There is no error in the judgment passed by
C     the trial Court and confirmed by the High Court. [Paras 23 and
      24] [810-A-C]
            Union of India v. Prafulla Kumar Samal & Ors. (1979)
            3 SCC 4 : [1979] 2 SCR 229 ; Sajjan Kumar v. Central
            Bureau of Investigation (2010) 9 SCC 368 : [2010] 11
D           SCR 669 ; State v. S. Selvi and Ors. (2018) 13 SCC
            455 ; Vikram Johar v. State of Uttar Pradesh and Ors.
            (2019) 6 SCALE 794 – relied on.
                            Case Law Reference

E     [1979] 2 SCR 229               relied on               Para 16
      [2010] 11 SCR 669              relied on               Para 17
      (2018) 13 SCC 455              relied on               Para 18
      (2019) 6 SCALE 794             relied on               Para 18
F           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 949 of 2019.
            From the Judgment and Order dated 22.11.2018 of the High Court
      of Karnataka at Bangalore in Writ Petition (Crl.) No. 13891 of 2018.
            Kamini Jaiswal, Abdul Rahiman, Shereef K.A., Ms. Rani Mishra,
G     Jatinderpal Singh., Advs. for the Appellant.
            Aman Lekhi, ASG, Ms. Shraddha Deshmukh, Kanu Agrawal, B.
      V. Balaram Das, Advs. for the Respondent.


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   ASIM SHARIFF v. NATIONAL INVESTIGATION AGENCY                               801


      The Judgment of the Court was delivered by                               A
      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-NIA-HYD came
to be registered along with four other accused persons for the offences
punishable under Sections 120-B, 109, 150, 153A, 302, 201 read with            B
Section 34 of IPC; Sections 3 and 27 of the Arms Act and Sections
15,16,17,18 & 20 of the 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.        C
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            D
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                E
challenge in the instant appeal.
       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               F
complaint was filed by one Jayaram(CW-1), 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         G
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
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802            SUPREME COURT REPORTS                           [2019] 8 S.C.R.


A     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 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
B
      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
C     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
D     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 of India(PFI) and the other accused persons nos. 1 to 4
E     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 charge-
F     sheet 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
G     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
H
   ASIM SHARIFF v. NATIONAL INVESTIGATION AGENCY                              803
                     [RASTOGI, J.]

of the case and the High Court has not taken into consideration the oral      A
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       B
to 86, 86-92, 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.
                                                                              C
       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 and executed the plan of striking terror         D
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     E
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     F
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.
                                                                              G
       11. Learned counsel further submits that none of the accused in
this case are the member of any terrorist organisation which 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.                                           H
804             SUPREME COURT REPORTS                         [2019] 8 S.C.R.


A            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.
B
             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
C     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 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
D     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.

E          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.
F          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.
G
           v)   Investigation revealed that about 8-9 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.
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      ASIM SHARIFF v. NATIONAL INVESTIGATION AGENCY                               805
                        [RASTOGI, J.]

        vi) Accused no. 4 confesses that accused appellant was the                A
            mastermind behind the killing of RSS members.
       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           B
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,             C
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:-
                                                                                  D
             “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          E
             proceeding against the accused, he 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            F
         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        G
         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
1
    1979 (3) SCC 4                                                                H
806               SUPREME COURT REPORTS                         [2019] 8 S.C.R.


A              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 Investigation2, this
      Court had an occasion to consider the scope of Section 227 and 228
B     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
C                 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 determine prima facie case would
                  depend upon the facts of each case.
D                 (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
E                 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
F                 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.
G
                  (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

      2
H         2010 (9) SCC 368
      ASIM SHARIFF v. NATIONAL INVESTIGATION AGENCY                               807
                        [RASTOGI, J.]

            placed on record and must be satisfied that the commission of         A
            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      B
            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         C
            suspicion only, as distinguished from 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                   D
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             E
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      F
views are possible and one of them giving rise to suspicion only, as
distinguished from grave suspicion against the accused, 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     G
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.
3
    2018 (13) SCC 455
4
    2019 (6) SCALE 794                                                            H
808             SUPREME COURT REPORTS                            [2019] 8 S.C.R.


A            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
B
      information in R.C. No. 24/2016 including the appellant-Asim 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
      Security-1 Division), North Block, New Delhi through its orders dated
      7th December, 2016 as per Section 6(5) read with Section 8 of the National
C     Investigation Act. In obedience to the said order, the NIA, Hyderabad
      Branch, registered the case in RC 04/16-NIA-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.
D           21. After completion of the investigation, final report was submitted
      before the trial Court against the accused persons 1 to 5 on 21 st 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
E     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
F            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
G            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 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
H
   ASIM SHARIFF v. NATIONAL INVESTIGATION AGENCY                            809
                     [RASTOGI, J.]

      by it are sufficient enough to proceed with the case and that the     A
      same do give subjective satisfaction of existence of prima-facie
      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
                                                                            B
      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       C
      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      D
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   E
      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/    F
      S 302, 201 r/w Sec. 34 of IPC and Section 3 and 27 of Arms Act
      and under Section 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 charge-sheet placed on record for perusal, the fact      G
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 charge-sheet that there was
frequent telephonic/mobile conversation between appellant(accused no.
5) with other accused persons(accused nos. 1 to 4) prior and subsequent
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810             SUPREME COURT REPORTS                          [2019] 8 S.C.R.


A     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.
B
             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 the High Court by
      the impugned judgment dated 22nd November, 2018 which calls for our
      interference.
C
             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
D     in accordance with law.
             26. With these observations, the appeal is dismissed.
             27. Pending application(s), if any, stand disposed of.

E     Kalpana K. Tripathy                                         Appeal dismissed.




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G




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