Excelsior Correspondent
Srinagar, Apr 29: High Court while quashing the judgment of NIA Court whereby six persons involved in the offices of NDPS Act, Arms Act and Unlawful Activities Act were discharged with other offences, directed the NIA Court to frame the charges against all the accused for commission of offences for which they have been discharged.
The appeal was filed by the National Investigation Agency against the order dated 02.03.2020 passed by the Special Judge, NIA court to the extent that the accused persons were discharged under Section 120-B, 121, 122 and 123 of the Ranbir Penal Code in an FIR.
An FIR bearing No. 45/2018 dated 9.7.2018 came to be registered at Police Station, Karnah, District Kupwara under Section 8/21 of the NDPS Act, 7/25 of the Arms Act and 13 of Unlawful Activities (Prevention) Act, 1967.
The FIR came to be registered for containing 02 AK 56 rifles, 02 AK56 magazines and 56 live rounds by two persons, namely, Mushtaq Ahmad Malik and Shabir Ahmed Gakhad and further during search of operation one bag containing 12 sealed packets of brown sugar were seized from two persons, namely, Zakir Hussain Mirand Rafiq Ahmed Magrey.
The involvement of two more persons, Alam Bhat and Mohammad Yousuf Khawaja- was also disclosed by these persons. The further case of NIA is that on the disclosure made by accused, namely, Alam Bhat, 02 grenades of Under Barrel Grenade Launcher (UBGL) were seized from his house and further that on the disclosure made by accused-Mohd. Yousuf Khawaja-, 10 rounds of AK rifle were also recovered from his house.
Thereafter the case registered under said FIR was re-registered as RC/01/2019/NIA at Police Station, NIA on 01.02.2019 pursuant to order dated 30.1.2019 issued by the Govt. of India, Ministry of Home Affairs.
The trial court discharged the accused in various offences on the ground that no cognizance could be taken in the absence of a complaint by the District Magistrate, Kupwara as defined under Section 4(e) of the Code of Criminal Procedure and without any preliminary investigation as prescribed under the relevant provisions of Section 196-B of the Code of Criminal Procedure.
The Division Bench of Justice D S Thakur and Justice Puneet Gupta while referring the Section 121 of RPC in which all the six persons were discharged, said it envisages that whoever wages war against the Government of India or attempts to wage such ware or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine.
With regard to Section 120-B(2) Court added, it envisages that whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable shall be punished with imprisonment of either description for a term not exceeding six months, or with fine, or with both.
Court for discharging these persons from the offences of Section 121 and 120-B of RPC by the NIA court said, it is unsustainable in law as these Sections are admittedly pertain to offences which are not cognizable.
“We cannot persuade ourselves to accept the view expressed by the NIA Court to the extent of discharging the respondents for the offences punishable under Section 120-B, 121, 122 and 123 of the RPC. The impugned judgment and order to that extent is, therefore, set aside. Trial Court is directed to frame the charges against the respondents for commission of offences under Section 120-B, 121, 122 and 123 RPC”, DB concluded.
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