Calcutta HC Commutes Life Sentence Of An Alleged Maoist Leader [Read Judgment]
The Calcutta High Court exonerated certain alleged Maoists from the charge waging war against India and commuted their life sentence to three years rigorous imprisonment, for lack of evidence.
The accused, Sagun Murmu, Sambhu Soren and Chhatradhar Mahato, were apprehended by a raiding party while working out an information regarding terrorist activities. Materials such as flash gun, iron pipe, electric wire, arms, video recordings and photographs, leaflets and Maoist gazettes/magazines were seized from them. They had also indulged in exploding IED to scare the police away in order to have a meeting.
It was alleged that the accused were members of Police Santras Birodhi Janasadharaner Committee (PSBJC) and Communist Party of India (Maoist) (CPI (Maoist)), associations declared unlawful by the Government of India. It was further alleged that they had entered into a conspiracy for abetting waging of war against the government and overawe them by show of criminal force. Chhatradhar Mahato was also alleged to be a Maoist leader.
Accordingly, a charge sheet was filed and an order of conviction under the Sections 121, 121A, 122, 123, 124A of IPC, Sections 18, 38(2), 39(2) and 40(2) of the Unlawful Activities (Prevention) Act (UAPA), was passed by the Additional Sessions Judge on conclusion of the trial.
Consequently, the present appeals titled "Sri Chhatradhar Mahato & Ors. v. State of West Bengal" and "Raja Sarkhel & Anr. v. The State of West Bengal", were filed before the high court. The convict-Appellants contested the order of the trial court, stating that the prosecution had failed to prove its case beyond reasonable doubt. It was submitted that:
- Sanctions for taking cognizance, both under Section 196 of CrPC and under Section 45(2) of the UAPA were obtained after cognizance was taken and it was not even clear whether the statements recorded during investigation or the case diary were sent to the sanctioning authorities for perusal. Therefore it was alleged that the entire prosecution was completely bad in law. Reliance was placed on State of Karnataka & Anr. v. Pastor P. Raju, (2006) 3 SCC (Cri) 179;
- The action of making a low grade bomb blast to scare police away did not possess the gravity or enormity to constitute waging of war against India. Reliance was placed on The State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru, 2005 SCC (Cri) 1715;
- There was no material to prove that the accused were members of PSBJC or the CPI (Maoist). It was further submitted that membership of an organization, if at all, did not impute a member with the same goals as those of that organization. Reliance was placed on State of Kerala v. Raneef, (2011) 1 SCC (Cri) 409;
- Seizure of video recordings and photographs as contained in the compact discs were inadmissible as evidence due to non-compliance of Section 65-B of the Evidence Act. Reliance was placed on Harpal Singh @ Chhota v. State Of Punjab, (2017) 1 SCC 734;
- Seizure of arms or Maoist magazines could not be proved as either the independent witnesses to the seizure turned hostile or they did not fully support the factum of seizure.
Atypically, the State itself chose to question the validity of the judgment and order of conviction and sentence. It submitted that there, in fact, was a defect in obtaining sanction which was fatal to the prosecution case. It was also submitted that legally admissible evidence was lacking in respect of the offences alleged under Sections 121 and 124A of IPC. Further, PSBJC did not appear to be a formation or a front organization of the CPI (Maoist).
Pursuing the facts and circumstances of the case, the division bench comprised by Justice Md. Mumtaz Khan and Justice Jay Sengupta upheld the conviction and sentence of the accused persons under Sections 121A, 122, 123 and 124A of IPC and under Section 18 of the UAPA. The court made the following observations:
- The prosecution case did not suffer any detriment in respect of the sanctions since not much happened between the date of taking of cognizance by the Trial Court and the obtaining of sanction. Thus, no prejudice was caused to the appellants. The court also noted that Section 465 of CrPC specifically provides that no finding, sentence or order passed by a Court shall be reversed or altered on account of any error, omission or irregularity in the sanction for prosecution unless in the opinion of the Court, a failure of justice is occasioned thereby. Reliance was placed on Nanjappa v. State of Karnataka, (2015) 14 SCC 186. The court added that the defence did not raise any objection to the purported defects in the sanction before the trial court and it could not be allowed to do so now.
- While a low grade bomb blast to scare away police in order to have a meeting does not constitute "waging of war" under Section 121 of IPC, it very well amounts to "terrorist act" under Section 15 of the UAPA and attract a charge under Section 18.
- There was no sufficient evidence to establish that the accused were members of any forbidden terrorist organization or that the PSBJC was a front organization or a formation of the CPI (Maoist). Therefore, the charges under Sections 38(2), 39(2) and 40(2) of the UAPA could not be sustained against any of the accused/appellants.
- The compact discs containing images and video recordings were seized from a place shown by the accused and hence certification under Section 65B of the Evidence Act was not required. Reliance was placed on Shafhi Mohammad v. State of HP, (2018) 2 SCC 801. However, the court observed that pictures and videos per se, especially in the absence of voice matching, were incapable of imputing charges of sedition and waging of war against the appellants and did not directly connect the appellants with the alleged events.
- "Apprehension of some accused at or from near the place of occurrence, the recovery of arms and ammunitions from some of the accused and the seizure of similar objectionable literature from most of them give a clear indication of a sinister design to commit terrorist acts and indulge in seditious activities". This gave a clear inkling of a conspiracy to wage a war against the State under Section 121A, 122, 123 and 124A of IPC. Reliance was placed on Mohamad Usman Mohammad Hussain Maniyar & Anr. v. State of Maharashtra, AIR 1981 SC 1062.
The court then went on to censure the prosecution for its feeble investigation. It said,
"we cannot but express deep anguish about the manner in which the investigation of such a serious case as the present one was conducted. The members of the other forces who were part of the raiding party were not examined in this case. Sufficient numbers of independent persons were not brought forward to witness seizures."
It then considered the mitigating factors in the case like acquittal of the accused under Section 307 of IPC by the trial court and the non-seizure of huge cache' of arms or more sophisticated and lethal weapons like rocket launchers or RDX. Accordingly, the sentence of life imprisonment was commuted to that of three years rigorous imprisonment.
The Appellants were represented by Advocates Sekhar Kumar Basu, Soubhik Mitter, Arushi Rathore and Rajnandini Das and the State by Advocate General Kishore Datta, PP Saswata Gopal Mukherjee and Advocates Ranabir Ray Chowdhury and Trina Mitra.