[CRL.A 12/2016, CRL.A.148/2016, CRL.A.204/2016, CRL.A.327/2016, CRL.A.721/2016, Crl.MC.1538/2017]
1. The above appeals have been preferred by accused 1 to 5 and also by the State representing the prosecuting agency. The accused 1 to 17 were charged for offences punishable under Sections 120B and 124A of I.P.C., Sections 10(a)(i), 10(a)(ii) and 13(1)(b) of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as UAP Act). The prosecution allege that accused 1 to 17 assembled in an auditorium at Panayikulam on 15/8/2006. The meeting was arranged by accused 1 to 5 and attended by accused 6 to 17. The 13th accused was a juvenile and the case against him was split up to be considered separately and challenging the final report against him, he had filed Crl.M.C.No.1538/17. According to the prosecution, accused 1 to 5 organised the secret meeting. They brought pamphlets containing anti-national, seditious and inflamatory writings with intend to bring hatred and contempt against Government of India. Accused 2 to 4 addressed the audience and advocated for cession of Kashmir through Jihad and for bringing back Muslim rule in India. The books and pamphlets brought by accused 1 to 5 were publications of Students Islamic Movement of India ('SIMI' for short), a banned organization. Prosecution allege that the meeting of SIMI was convened by the accused with intend to cause disaffection towards Government of India, to conduct Jihad for cession of Kashmir from India and to bring back Muslim rule in India. It is alleged that all the accused had entered into a criminal conspiracy and committed act of sedition and advocated, abetted and incited the commission of unlawful activities and thereby committed the aforesaid offences.
2. In order to prove the case, prosecution examined PW1 to PW50 and placed reliance upon Exts.P1 to P213. MO1 to MO10 were identified. After completing the requisite formalities of trial, the Special Court for NIA cases convicted accused 1 to 5 for offence u/s 120B r/w 124A of I.P.C. and Sections 10(a)(ii) and 13(1)(b) of the UAP Act. Accused 2 and 3 were convicted for offence punishable u/s 124A I.P.C. simplicitor as well. Accused 1 and 2 were convicted for the offence u/s 10(a)(i) of the UAP Act. Accused 1, 4 and 5 had been acquitted for the offence u/s 124A of I.P.C. The accused Nos.6 to 12 and 14 to 17 were acquitted of all the charges levelled against them.
3. First accused is sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 25,000/- with default sentence of rigorous imprisonment for 6 months on conviction u/s 120B r/w S.124A. of I.P.C., rigorous imprisonment for 7 years and to pay a fine of Rs. 25,000/- with default sentence of rigorous imprisonment for 8 months on conviction u/s 13(1)(b) of UAP Act, rigorous imprisonment for two years and to pay a fine of Rs. 5,000/- in default of which rigorous imprisonment for a period of 3 months on conviction u/s 10(a)(ii) of UAP Act; rigorous imprisonment for 2 years and a fine of Rs. 5,000/- with default sentence of rigorous imprisonment for 3 months on conviction u/s 10(a)(i) of the UAP Act. 2nd accused had been sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 25,000/- with default sentence of rigorous imprisonment for 6 months on conviction u/s 124A I.P.C. In respect of other offences, the same punishment given to first accused had been imposed on him. The 3rd accused had been given the same punishment as that of the 2nd accused on conviction u/s 124A I.P.C., 13(1)(b) and S.10(a)(ii) of UAP Act. The 4th accused had been imposed with punishment given to the first accused for offence u/s 120B r/w 124A of I.P.C. and the same punishment for the other accused for offence u/s 13(1)(b) and 10(a)(ii) of UAP Act. The 5th accused on conviction u/s 120B r/w 124A I.P.C., is sentenced to undergo rigorous imprisonment the same as that of the first accused and also similar punishment for offence u/s 13(1)(b) and 10(a)(ii) of the UAP Act. The period of sentence was to run consecutively and therefore accused 1 and 2 will have to undergo substantive sentence of 14 years each and accused 3, 4 and 5, 12 years each.
4. We heard the learned counsel Adv.V.T.Reghunath appearing for accused 1 and 3, Senior Counsel Sri.B.Raman Pillai appearing for accused No.2, Adv.T.G.Rajendran, appearing on behalf of accused No.4, Adv.V.S.Salim, appearing for accused No.5 and also the accused in CC No.70/2016 of the Juvenile Justice Board, Ernakulam (13th accused in the case) and the Special Public Prosecutor for NIA Sri.M.Ajay, who had preferred a separate appeal challenging the acquittal of the other accused in the case.
5. The main contention urged by the learned counsel appearing for the accused is that there is no evidence in the case to infer that an offence u/s 124A has been made out. The prosecution was not even in a position to prove that a meeting itself was held at Happy Auditorium, Panayikulam on 15/8/2006 as alleged. Even assuming that there was a meeting, there is no evidence to prove that any of the participants in the meeting had committed any seditious act warranting a crime u/s 124A of I.P.C. The alleged conspiracy is also not proved. The prosecution mainly relies upon the oral testimony of PW1, an approver. There is absolutely no corroboration to the approver's evidence. Other than the approver's evidence, the only other evidence sought to be adduced is the evidence of the police officers who had allegedly heard the speech. Even assuming that they have heard the speech, there is absolutely nothing to indicate that it was seditious in any form. Further it was not a meeting of SIMI at all. None of the accused were members of SIMI and there is no evidence to prove that, after SIMI was banned under the provisions of the UAP Act, any of the accused had projected themselves as members of SIMI. It is also argued that the documents, which are alleged to have been seized had been fabricated. After several years of investigation, when the National Investigating Agency (NIA) took over investigation, a diary was sought to be recovered from PW2 regarding the allotment of the hall during the said period. A bare look at the said diary (Ext.P10) would indicate that it is a fabricated document. That apart, the prosecution case is that, on an information received by the police regarding a secret meeting being held by SIMI activists, the police party had come to the hall at 1.00 p.m. It is stated that the police heard the speakers making seditious speech against Government of India. It is also stated that, on seeing the police party, accused 1 to 5 took the books and pamphlets which were on the dais and those were concealed in their dress. PW37, the officer who conducted the inspection on that day took all the 18 persons who had assembled there to Aluva Police Station. They were questioned by several senior officers, but no FIR was prepared at the relevant time. The FIR was prepared only at 8.15 p.m. and that too after recording statement of one of the persons who attended the meeting. Initially the case was taken against accused 1 to 5 and others were sent away. During further investigation, when NIA came to the picture, all the 18 persons had been implicated for various offences as stated above and one of them was made an approver. The FIR is seen to have been recorded only at 8.15 p.m though the accused were being held in the police station since 2 p.m and the police was aware of the commission of cognizable offence. Defence has a case that though the FIR was prepared at Aluva Police station, it was later corrected subsequently to make it appear that the statement was recorded and FIR was prepared at Binanipuram Police Station. That apart, it is contended that despite the fact that all the accused were in the police custody since 2 p.m. on the said day, they were arrested only at 9.30 p.m and body search was conducted only at that time. It is at that time, according to the police that the records were seized from accused 1 to 5. It is contended that the entire seizure has been fabricated. The accused had not kept anything in their body and all the documents had been brought by the police from some other source and the accused had been allegedly implicated. It is further argued that there is no evidence to prove that the meeting was convened or conducted by SIMI. The documents relied upon and produced were all publications made several years back even before SIMI was banned by Government of India. None of the documents contain any seditious material warranting any action to be taken pursuant to the same. It is argued that unnecessarily some persons from different areas were brought to the Aluva Police Station and the aforesaid charges were fastened on them. It is also argued that the Court below had not properly appreciated the factual circumstances relating to the case. Primarily, the Court had considered extraneous materials like the materials available on website regarding the organization SIMI and had approached the case with a prejudiced mind. That apart, the Court below did not care to find out whether there was any corroboration to the approver's evidence. The Court below had relied upon extraneous materials to arrive at the guilt of the accused and therefore learned counsel for accused 1 to 5 sought for an acquittal and learned counsel appearing for the 13th accused (Juvenile) sought for quashing the final report.
6. On the other hand, learned Special Public Prosecutor submitted that sufficient evidence is available in the case to prove the ingredients of sedition as well as commission of offence under the provisions of the UAP Act. It is argued that the delay in registering the FIR was on account of the fact that the officer had to ascertain various details before coming to a conclusion that an offence had been made out. All the particulars had been specifically detailed and explained during evidence and therefore delay in registering of FIR cannot be a reason for acquittal. That apart, the accused had not shown that any prejudice had been caused on account of the same. It is submitted that the arrest, body search and recovery of various publications had been made only after registration of the crime. As far as evidence is concerned, when PW1 had clearly spoken about the fact that it was a meeting of SIMI and they were in fact speaking about seditious materials, there is no reason to doubt the genuineness of the same. The evidence of PW1 is supported by the oral testimony of the police officers who had accompanied PW37 and there is no reason to doubt the veracity of their statements. Further, the Court below had considered the entire aspects of the matter in its proper perspective and has arrived at a conclusion which requires no interference.
7. First of all, we shall consider whether accused 2 and 3 have made any seditious speech. Section 124A reads as under:-
“124A. Sedition.—Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards,[***] the Government established by law in [India], [***] shall be punished with [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”
8. PW1 was the Imam of Panayikulam Salafi Masjid for about 4 years from February 2006 to March, 2010. He had acquaintance with Nizamudeen (A4) who was a member of the banned organization SIMI. A4 used to take books and CD from the mosque library. On 15/8/2006, A4 invited PW1 for a conference relating to the subject, 'Role of Muslims in Indian independence'. He was invited a week before 15th August. On enquiry, he was told that the meeting is only for an invited few. He reached Happy Auditorium at 10 a.m on 15/8/2006. He saw Nizamudeen (A4) and Hashim (A14) in the entry to the hall. Inside the hall, there were a few persons. On the northern wall, a black plastic sheet was displayed in which it was written as “Independence day thoughts 15th August, Panayikulam Islamic Students Center”. There was a dais in the hall and a few books were there. He just opened it and did not read. It was some books, notices and a few pamphlets. By about 11 in the morning, a few other persons came. Meeting started at 11 a.m. Including A4, five other persons were sitting on the dais. Including PW1, there were 13 persons as audience. First A4 introduced the persons on the dais. Thereafter Ansar (A3) read Quran for half an hour. Thereafter, Rasik (A2) spoke. He was speaking about Kashmir for about hour. When he was asked what Rasik was speaking, his answer was “Indian army is killing Muslims who are doing Jihad against Indian Army at Kashmir. Other Muslims in India are being tortured by laws like TADA, NSA etc., against which, under the leadership of SIMI, we have to fight”. During the speech, he was showing some English books and one of the book was “Mass Resistance in Kashmir”. After that Ansar (A3) spoke. His speech was “Whatever we see now in India is made by Britishers. We should move back to the period when Nizams and Mughals were ruling old India and for that you have to fight with SIMI and no one can destroy SIMI”. A3 spoke for about one hour. When PW1 was asked as to what he thought about the speech, his answer was that he thought that it was against our nation. He also stated that, on hearing the speech, the audience clapped their hands. He identifies A1 to A5 and A9 and A14. He further stated that while A3 was speaking, 5-6 police reached there in uniform. When they saw the police, A3 stopped speaking and the persons sitting in the dais took the books and pamphlets and concealed it inside their shirt. That was at about 1 p.m. Police asked for their names. When he was asked as to what happened after the police came, he said that police checked the books which were in the hands of the persons sitting in the dais and gave it back. Thereafter, all of them were taken to Binanipuram Police Station and he had given the information to the police. He said he had given Ext.P1 in writing. The marking of the document was objected. It was stated that the document is hit by S.161 Cr.P.C as it was obtained while the witness was in police custody and was not admissible in evidence and self incriminating. However the document was marked deferring the legal questions regarding admissibility. He also identified Exts.P2 to P6 subject to objection that it is not admissible in evidence. He further stated that after giving Ext.P1, his further statement was taken and in March 2010, NIA officers had also taken a statement. He was arrested by Dy.S.P. Mr.Sasidharan on 31/12/2008 and the arrest memo is Ext.P7. His statement was recorded u/s 164 Cr.P.C which is marked as Ext.P8. He filed an application to treat him as an approver and according to him he is made an approver based on Ext.P9.
9. PW15 is another witness. According to the defence, he is a planted witness. His evidence would show that he saw a police jeep and a few police officers along with the Sub Inspector of Police entering into Happy Auditorium. He also accompanied them. He heard a sound and what he heard was “this was a British country. Originally it was a Muslim country. Now the law is against Muslims.” Apparently, this evidence does not support PW1 in any manner. The other witnesses who speak about the same are PW31, PW32 and PW37.
10. PW31 was a Police Constable at Binanipuram police station for the period from 6/6/2006 and he also was a member of the police party who had conducted search at Happy Auditorium on 15/8/2006. The speech which he heard was that “the Indian Nation was created by British. Before that, it was Mughals and Nizams and they were ruling as separate countries. Present Government is not taking care of the interests of Muslims. Laws are made against Muslims. They are being tortured by using oppressive laws like NSA and TADA. Indian Army is killing those persons who are doing Jihad for Kashmir. Muslim interests can be protected only if we fight through SIMI and whoever objects to it, nobody can stop the activities of SIMI”.
11. PW32 is yet another Police Constable of Binanipuram Police Station. He deposed that he saw 4 persons in the dais. One was speaking. The audience was clapping hearing the speech. The moment they saw the police, they stopped the speech. Thereafter they were seen concealing the books, brochures and pamphlets in their shirt.
12. PW37 was the Sub Inspector of Police during the relevant time and he conducted the search.
13. Though it is contended by learned counsel for appellants that no such meeting was held, the fact that a meeting was convened on the said day is spoken to by PW2, who is the sister of the owner of building. Of course, there is some discrepancy in Ext.P10, the diary which is alleged to have been maintained by her. The diary is of the year 2004 and it contains an entry on 15/8, recorded as Quran class. But, no year was mentioned. The said diary is not something which is kept in the usual course of business. But it is only a rough diary. Even without the said diary being made available, evidence of PW2 is enough to prove that a meeting was convened on the said day. But there was no publication as such that the meeting was with reference to SIMI organization. Even according to PW2, the persons who had booked the room for the meeting stated that it was to conduct Quran class and not for any other purpose. Therefore, this is a case in which we have to arrive at a conclusion that a meeting was held on 15/8/2006 and evidence of PW31, PW32 and PW37 would prove the fact that all the persons who were made accused attended the meeting and were in the room, when they were taken to the police station.
14. Of course, the defence has a case that they were taken into custody from several other places and they were deliberately made accused in the case. But we do not think it necessary for us to disbelieve PW31, PW32 and PW37 and their evidence is supported by PW15 and PW1. Therefore, we have to proceed on the basis that all the accused were present at the time when PW37 conducted raid in the auditorium and they were taken to the police station.
15. Let us now consider whether the accused had been involved in any of the offences as alleged by the prosecution. Ext.P1 is the FI Statement and Ext.P1(a) is the FIR. The FI Statement was taken from PW1 on 15/8/2006 at 8.15 p.m. After recording the FIS and registration of the crime, the case was taken only against accused Nos.1 to 5, who were the persons who were allegedly sitting on the dais. According to the police, others were sent away. Accused Nos.1 to 5 were arrested and their body search was conducted. Ext.P63 is the seizure mahazar as per which Exts.P2, P55 and P64 were seized from the first accused, Exts.P3, P53 and P58 from the 2nd accused, Exts.P4, P59 and P60 from the third accused, Exts.P5, P52, P61 and P62 from the 4th accused and Exts.P6, P54 and P56 from the fifth accused. The very seizure and registration of the FIR itself had been questioned by the accused. Court below however rejected the said argument and found that there is no illegality in the registration of the FIR and the seizure was done in accordance with the procedure prescribed.
16. In Marudanal Augusti v. State of Kerala [(1980) 4 SCC 425], the Apex Court held that if the FIR is held to be fabricated or brought into existence long after the occurrence, any number of witnesses could be added without there being any check to the authenticity of their evidence and the prosecution case would collapse. That was a case in which there was a delay of 29 hours in sending the FIR to the Sub Magistrate which had been deprecated by the Apex Court.
17. In Arjun Marik v. State of Bihar [1994 Suppl. (2) SCC 372], it was observed that the FIR was sent to the Magistrate only on the third day of occurrence. S.157 of Cr.P.C. mandates that the FIR should be sent forthwith i.e., without any delay and immediately. A combined reading of Sections 157 and 159 Cr.P.C. would indicate that it has a dual purpose. Firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch in the progress of the investigation.
18. Importance of registering FIR at the earliest opportunity has been stated by the Apex Court in an earlier judgment in Thulia Kali v. State of Tamil Nadu [(1972) 3 SCC 393], wherein it was held that importance of First Information Report in a criminal case is that it is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced during trial. Delay in lodging FIR often results in embellishment which is a creature of afterthought. On account of such delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in the form of introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.
19. In the above case, PW37 in his evidence had stated that, on hearing the speech and on verification of the books and pamphlets, he knew that they have committed the offence u/s 124A and 120B. According to him, all the accused were apprehended when he conducted search of the auditorium premises at about 1.00 p.m. But, it seems that the crime was registered only at 8.15 p.m. Further, the FIR reached the learned Magistrate only at 8.30 p.m on 16/8/2006. There is absolutely no explanation for the said delay. That apart, the body search of accused 1 to 5 were conducted only at 9.30 p.m., though, according to PW37, they were in the police station since 2.00 p.m. Ext.P63 was sent to the Magistrate Court only on 18/8/2006. The Court below however did not accept the argument of the accused regarding the delay in registering the FIR. This is a case which involves very serious allegations against the accused and therefore, when PW37 had a clear idea about the involvement of the accused for having committed such offences, he should have registered the FIR then and there. As far as the FI Statement given by PW1 is concerned, which again is recorded at 8.15 p.m. on 15/8/2006, wherein he states that police had come when Rasik was delivering a speech on Kashmir and the attrocities against Muslim, which were anti-national. In such instances, PW37 ought to have registered the crime at the earliest, especially when PW1 was very much available in the Police Station. The defence also points out that the FI Statement was prepared at Aluva Police Station and it was later concocted to make it appear that the FIR was registered at Binanipuram Police Station.
20. PW37, the Investigating Officer has deposed that he questioned all of them at the Police Station after they were brought to the station at 2.00 p.m. He informed the matter to his superior officers and the Circle Inspector of Aluva, Dy.S.P. Aluva and S.P. Rural Ernakulam also came and at 8.15 p.m, he recorded the statement of Rasheed (PW1) on the basis of which crime was registered. Apparently, being a very serious issue wherein sedition and conspiracy charges were involved, probably the Sub Inspector of Police might have thought that the presence of the senior officers are also required to have a clear understanding of the same and that might be the reason for the delay. But, such an approach of the concerned Station House Officer can only be deprecated. When a cognizable offence is made out or comes to his notice, he will have to register an FIR and should not wait for even getting statement of witnesses. The witness is none other than a person who participated in the meeting, which meeting itself is alleged to be violating the provisions of the UAP Act. The only factor which we have to examine is whether the delay in registering the case has resulted in any prejudice to the accused which we shall consider later if material before us would show that the offences are made out.
21. Yet another important fact is the recovery of the materials from the accused. The accused were brought to the Police Station at 2.00 p.m and it is not known why a body search was not conducted immediately. PW37 deposes that when he reached the auditorium, he saw accused 1 to 5 concealing the books, pamphlets and leaflets inside their shirt. He took it from them and gave it back. Thereafter, they were taken to the Police Station and no action had been taken to prepare a seizure mahazar immediately. They waited till the accused were arrested and it is at 9.30 p.m that the seizure mahazar had been prepared. Further, the seizure mahazar was sent to the Court only on 18/8/2006. The reason for such delay apparently had not been explained by the prosecution. According to the defence, the seizure mahazar was delayed with the specific purpose of bringing documents from elsewhere in order to implicate the accused. The question to be considered is whether such delay has caused any prejudice to the accused which we shall consider in due course.
22. The allegation of sedition, as already mentioned, is sought to be proved by the prosecution based on the evidence of PW1, the approver, PW15, PW31, PW32 and PW37.
23. When NIA through PW48, took over investigation, he had made all other persons who had attended the meeting accused in the case. PW1 had also given a statement u/s 164 Cr.P.C. on 19.4.2010. PW1 was made an approver. PW1 is a person who was originally a witness for the prosecution as he has given FI statement and later he was made an accused and thereafter an approver. The argument is two fold ie., first of all that he is not an approver and even if he is treated as an approver, his evidence requires corroboration and there is absolutely no corroboration for his evidence other than the interested version of the police officers.
24. In Rampal Pithwa Rahidas and Others v. State of Maharashtra (1994 Suppl.(2) SCC 73), the Apex Court held that the statement of the approver at the trial recorded more than three years after the occurrence is so detailed and it is difficult to believe its authenticity particularly when it also travels far beyond what was stated by the approver in his confessional statement recorded u/s 164 Cr.P.C only a few days after the occurrence. It is humanly not possible for an illiterate rustic person to remember all such minute details as have been given by the approver detailing even the sequence of evidence during alleged occurrence.
25. In Mohd. Jamiludin Nasir v. State of West Bengal [(2014) 7 SCC 443], the Apex Court held that when a confession statement of an accused is examined in the touchstone of S.10 and 30 of the Evidence Act, it will have to be stated that the confession of a co-accused cannot be treated as substantive evidence to convict other than the person who made the confession on the evidentiary value of it.
26. In Pancho v. State of Haryana [(2011) 10 SCC 165], the Apex Court held at paragraphs 24 to 29 as under:-
"24. The law on this point is well settled by a catena of judgments of this Court. We may, however, refer to only two judgments to which our attention is drawn by Mr Lalit, learned Senior Counsel. In Kashmira Singh v. State of M.P., referring to the judgment of the Privy Council in Bhuboni Sahu v. R. and observations of Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty, this Court observed that the proper way to approach a case involving confession of a co-accused is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then it is not necessary to call the confession in aid.
25. This Court further noted that: (Kashmira Singh case, AIR p. 160, para 10) “10. … cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession, he would not be prepared to accept.”
(emphasis in original)
26. In Haricharan Kurmi v. State of Bihar the Constitution Bench of this Court was again considering the same question. The Constitution Bench referred to Section 3 of the Evidence Act, 1872 and observed that confession of a co-accused is not evidence within the meaning of Section 3 of the Evidence Act. It is neither oral statement which the court permits or requires to be made before it as per Section 3(1) of the Evidence Act nor does it fall in the category of evidence referred to in Section 3(2) of the Evidence Act which covers all documents produced for the inspection of the court. This Court observed that even then Section 30 provides that a confession may be taken into consideration not only against its maker, but also against a co-accused. Thus, though such a confession may not be evidence as strictly defined by Section 3 of the Evidence Act, “it is an element which may be taken into consideration by the criminal court and in that sense, it may be described as evidence in a non-technical way”. (Haricharan case, AIR p. 1188, para 11a.)
27. This Court in Haricharan case further observed that Section 30 merely enables the court to take the confession into account. It is not obligatory on the court to take the confession into account. This Court reiterated that a confession cannot be treated as substantive evidence against a co-accused. Where the prosecution relies upon the confession of one accused against another, the proper approach is to consider the other evidence against such an accused and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused, the court turns to the confession with a view to assuring itself that the conclusion which it is inclined to draw from the other evidence is right.
28. This Court in Haricharan case clarified that though confession may be regarded as evidence in generic sense because of the provisions of Section 30 of the Evidence Act, the fact remains that it is not evidence as defined in Section 3 of the Evidence Act. Therefore, in dealing with a case against an accused, the court cannot start with the confession of a co-accused; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.
29. Applying the above principles to the case on hand, we find that so far as A-2, Pancho is concerned, except the evidence of alleged belated discovery of certain articles at his instance, which we have already found to be doubtful, there is no other evidence on record to connect him to the offence in question. When there is no other evidence of sterling quality on record establishing his involvement, he cannot be convicted on the basis of the alleged extrajudicial confession of the co-accused A-1, Pratham, which in our opinion, is also not credible. Once A-1, Pratham’s extra-judicial confession is obliterated and kept out of consideration, his conviction also cannot be sustained because we have come to the conclusion that the alleged discovery of articles at his instance cannot be relied upon. There is thus, no credible evidence to persuade us to uphold the conviction of A-1, Pratham".
27. A Division Bench of this Court in Pushpangadhan v. State of Kerala [ILR 2004 (3) Ker.254], while considering the evidentiary value of an accomplice held that the accomplice is a competent witness and if his evidence inspires confidence in the mind of the Court, he can be believed and on his evidence, guilt can be inferred. However, as a matter of prudence, the Court will always insist on corroborative evidence. If no direct corroboration is necessary, it may be circumstantial or additional evidence to inspire confidence of the Court that the approver is deposing true fact in all material particulars to connect the crime.
28. The learned Public Prosecutor also placed reliance on the judgment of the Apex Court in Central Bureau of Investigation v. Ashok Kumar Aggarwal and Another (2013) 15 SCC 222] wherein the Apex Court after having referred to illustration B of S.114 and S.133 of the Indian Evidence Act, held that in practice, conviction of a person on the evidence of an accomplice should not take place except under very rare and exceptional circumstances and usually substantial corroboration is required, the provision incorporates a rule of caution to which the Court must have due regard.
29. The incriminating factor which PW1 deposed was that;
(i) Indian Army are killing Muslims who are doing Jihad in Kashmir. Other Muslims in India are being tortured with oppressive law like TADA, NSA etc,. against which all of us should fight under the leadership of SIMI.
(ii) Present India was made by Britishers. Earlier, we were ruled by Nizams and Mughals. We should go back to that Old India for which we should fight through SIMI and no one else can destroy SIMI.
30. These impugned speeches were made by Rasik and Ansar who are accused Nos.2 and 3. None of the remaining have spoken even according to the prosecution. Therefore, at best, accused 2 and 3 alone can be mulcted with the offence u/s 124A if at all the evidence of PW1 is accepted and the aforesaid speech amounts to sedition. The Court below had implicated accused Nos.2 and 3 alone to have committed offence u/s 124A, but they along with accused 1, 4 and 5 were punished for offence u/s 120B r/w 124A of I.P.C.
31. As far as criminal conspiracy is concerned, there is absolutely no evidence. Prosecution has no case as to when and where the conspiracy had taken place. The evidence available in the case would show that A4 had booked the auditorium for a function on the said day and in Ext.P10, it is recorded as Quran class. Even according to PW1, he was invited by A4 for participating in a programme, in which the topic was “Role of Muslims in Indian Independence”. Apparently, the other persons who had attended the meeting also would have been told that the meeting was intended to have a discussion on such a topic. In order to prove conspiracy, the prosecution has to prove that there was an agreement to do an illegal act or an act which is not illegal by illegal means. When and where such an agreement was entered into between accused 1 to 5 is not evident from the materials placed on record and the trial Court has only made certain assumptions to render such a finding. Of course, direct evidence to prove conspiracy is rarely available, but still, the prosecution is bound to prove circumstances which occurred prior to the incident and after the incident for the Court to arrive at a conclusion that there was a conspiracy to commit an illegal act. In this case, there is no such material available and therefore, we are of the view that offence u/s 120B has not been made out.
32. It has been held in Nazir Khan v. State of Delhi (AIR 2003 SC 4427) that the objects of sedition are generally to induce discontent and insurrection and stir up opposition to the Government and to bring the administration of justice into contempt. The tendency of sedition is to incite the people to insurrection and rebellion. In fact, the constitutional validity of S.124A has been upheld by the Apex Court in Kedar Nath Singh v. State of Bihar (AIR 1962 SC 955). The challenge was that it imposes restriction on freedom of speech and expression. But the Apex Court held that the expression 'Government established by law' has to be distinguished from persons for the time being engaged in carrying on the administration. Government established by law is the visible symbol of the State. Only such acts within the meaning of S.124A which have the effect of subverting the Government by bringing that Government into contempt or hatred or creating disaffection against it, would come within the penal statute. It is further held that any written or spoken words which has implicit in them the idea of subverting Government by violent means which are compendiously included in the term 'revolution' have been made penal by the section in question. On a bare reading of S.124A, it is rather clear that merely making a statement against Government of India or its military will not become sedition. In addition to making a statement, the person making such speech or other form of publication should have intention to create hatred or contempt or it should attempt to excite disaffection. Disaffection is explained in Explanation 1 as including disloyalty and all feelings of enmity. Explanation 2 further states that comments expressing disapprobation of the measures of Government with a view to obtain their alteration by lawful means without exciting or attempt to excite hatred, contempt or disaffection, do not constitute an offence under the Section. Explanation 3 also states that comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection did not constitute an offence. Therefore the basic ingredient for an offence u/s 124A is to bring or attempt to bring hatred or contempt or excites or attempt to excite disaffection towards the nation. In Emperor v. Maniben Liladhar Kara (AIR 1933 Bom.65), the Bombay High Court held: “In estimating the effect of a speech, the Court should look at the speech as a whole, and not pay undue regard to any particular sentence or phrase. Looking at the speech as a whole, the Court should gather from the language used what the intention of the speaker was. It is not open to a speaker to say that he did not intend his language to bear the meaning which it naturally does bear.”
33. In Jiwan Singh and Another v. King Emperor (MANU/LA/0096/1924=AIR 1925 Lah.16), the High Court of Lahore held at paragraphs 7 to 9 as under:-
“7. In the case of Queen Empress v. Luxman (1900) 2 Bom.L.R.286, Sir Lawrence Jenkins in his charge to the Jury said:
It is obvious that you must determine what was the accused's intention. Was it his intention to call into being hostile feelings? To decide this you have to be, guided by the rule (perhaps a rough and ready rule, but one always accepted until it can be shown that there is no room for its application) that a man must be taken to intend the natural and reasonable consequence of his act, so that if on reading through these articles the reasonable and natural and probable effect of these articles on the minds of those to whom they were addressed appears to you to be that feelings of hatred, contempt or disaffection would be excited towards the Government, then you will be justified in saying that these articles were written with that intent, and that these articles therefore are an attempt to create the feeling against which the law seeks to provide.
8. Similarly Mr.Mayne, in his Criminal Law of India says:
“Intention for this purpose is really no more than meaning. When a man is charged in respect of anything he has written or said, the meaning of what he said or wrote must be taken to be his meaning, and that meaning is what his language would be understood to mean by the people to whom it is addressed.”
9. It is clear from these authorities that intention is an essential element in the offence of sedition, though the section does not expressly say so; and it is also clear that it is not necessary for the prosecution to prove the intention directly by evidence which in most cases would be impracticable. The law will presume the intentionwhether good or bad-from the language and conduct of the accused and it will be then for him to show that his words were harmless and his motives innocent.”
34. In Satyendra Nath Mazumdar v. Emperor (AIR 1931 Cal 337), High Court of Calcutta held at paragraphs 7 to 10 as under:-
“7. For the Crown on the other hand it was urged that the only possible conclusion to be derived from a perusal of the articles is that the object in view was to excite hatred, contempt and disaffection against the Government. Before entering upon a discussion of the question at issue reference may be briefly made to the section and to the principles which are generally applied in such cases for the purpose of ascertaining intention. The material portion of the section reads as follows: Whosoever by words either spoken or written or by sign or by visible representation or otherwise brings or attempts to bring into hatred or contempt, or excites, or attempts to excite disaffection towards His Majesty, or the Government established by law in British India shall be punished" etc.
8. The language of the section might perhaps be deemed to give rise to some doubt whether as it stands the offence is independent of any intention and that view was formerly taken by the Chief Court of the Punjab [Re. Ram Nath  1. P.R. 1905] but it is now well settled that intention is essential and that in fact the essence of the crime of sedition consists in the intention with which the language is used. in the well-known ease of Bal Gangadhar Tilah  22 Bom 122 Strachey, J., elaborately discussed the circumstances which should. be taken into account in judging the intention of the accused. In his charge to the jury he said inter alia:
You will thus see that the whole question is one of the intention of the accused in publishing these articles. Did they intend to excite in the minds of their readers feelings of disaffection or enmity to the Government .. . or did they intend to excite no feeling adverse either to Government or its measures but only to excite enterest in a poem about Shivaji, and in an historical discussion about his alleged killing of a Mahomedan General?.... There are various ways in which you must approach ,he question of intention. You must gather the intention as best you can from the language of the articles. What is the intention which the articles convey to your minds? In considering this you must first ask yourselves what would be the natural and probable effect reading such articles in the mind of the readers of the Kesari to whom they were addressed. Bead these articles and ask yourselves how the ordinary readers of the Kesari would probably feel when reading them. Vould the feeling produced be one of hatred the Government or would it be simply one of interest in a poem and an historical discussion about Shivaji and Afzal Khan and so forth?
If you think that the only feelings which such readers would be excited to are feelings of interest in a poem or an historical or ethical discussion then you may presume that that is all the accused intended to excite. If you think that such readers would naturally and probably be excited to entertain feelings of enmity to the Government then you will be justified in presuming that the accused tended to excite feelings of enmity or disaffection.
9. The learned Judge then went on to point out that a person is presumed to intend the natural and ordinary consequences of his acts, and he cannot be allowed to excuse himself by saying that he did not, when publishing, intend that these consequences should ensue. Further he impressed upon the jury, and this I think has some importance in the present case also, that they must bear in mind the time, place, and circumstances, and the occasion of publication.
10. Another learned Judge, Jenkins, C. J., abserved in the case of Queen-Emperess v. Luxman Narayan Joshi  2 Bom. L.L. 286:
To determine whether the intention of the accused was to call into being hostile feelings, the rule that a man must be taken to intend the natural and reasonable consequences of his act must be applied; so that if on reading through the articles the reasonable and natural and probable effect on the minds of those to whom they are addressed appears to be that feelings of hatred, contempt,-or disaffection would be excited towards the Government, then it is justifiable to say that the articles are written with that intent, and that they are an attempt to create the feelings against which the law seeks to provide”.
35. Taking into consideration all these facts and principles evolved in appreciating a case under Section 124A, we do not think that the statements aforesaid even if read as a whole was intended to create any hatred or contempt or disaffection towards the Government of India. Nothing has been stated against the Government of India. Of course, it is stated that certain laws like TADA and NSA are oppressive and Muslims are tortured. It is also stated that the persons who are doing Jihad in Kashmir are gunned down by Indian military and all persons have to fight against the same. It might be true that it may trench upon making a malicious speech. But in so far as the speech does not create any hatred or contempt to Government of India, nor does it excite any disaffection, the provisions u/s 124A cannot be invoked. Disaffection of course means disloyalty, but none of the speakers have stated that they should show disloyalty to Government of India. They were projecting the plight of Muslims, of course viewed in a vary narrow angle as saviours of Muslim community. They might be wrong in making such a statement. It is their thought process that the rule of Mughal or Nizam is better and they should fight under the leadership of SIMI. Therefore we are of the view that none of the accused can be charged with the offence u/s 124A.
36. That apart, there is absolutely no corroboration in the evidence of PW1. The corroboration is sought to be achieved by the testimony of PW15 which does not contain any material. The other evidence is that of the police officers who deposed to have heard part of the speech. PW31, first of all, is a police officer whose evidence will always be supportive to the prosecution. He says that he had carefully heard the speech. If we compare the evidence of PW1 regarding the impugned speech and that of PW31, it would be clear that he had mixed his speech. When he recites the speech, it should be in the form in which he heard it. In PW1's evidence, he had bifurcated the speech by stating that the speakers were A2 initially and thereafter A3 and their speech was a lengthy speech. PW32 does not say as to who had delivered the speech. Therefore, the testimony of PW31 cannot render any corroboration to the evidence of PW1. Same is the situation with reference to PW32. He also accompanied the Sub Inspector. He does not recite the speech. He only sees four persons sitting in the dais and one speaking and the audience were applauding. He does not say anything about the contents of the speech. The only other witness is PW37, who is the investigating officer. He also stated in line with what PW31 has stated and he does not say whose speech it was. But in his deposition he makes a reference to both the alleged speeches of A2 and A3 which does not corroborate with the evidence of PW1. In the absence of any such corroboration, we are of the view that the prosecution had miserably failed to prove the contents of the impugned speeches.
37. The other provisions under which the accused had been chargesheeted are Section 10(a)(i) and (ii) and Section 13(1)(a) and (b). These provisions read as under;
“10. Penalty for being member of an unlawful association, etc.—Where an association is declared unlawful by a notification issued under section 3 which has become effective under sub-section (3) of that section,—
(a) a person, who—
(i) is and continues to be a member of such association; or
(ii) takes part in meetings of such association; or xxx”
“13. Punishment for unlawful activities.—
(a) takes part in or commits, or
(b) advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine.”
38. There is no dispute about the fact that SIMI, the organization has been declared as a terrorist organization in the first Schedule to the UAP Act w.e.f. 1/02/2013. Under S.10, no person shall be a member or continue to be a member of such an organization nor shall any person take part in meetings of such association. The offence is punishable with imprisonment for a term which may extend to 2 years and shall also be liable to fine. S.13 deals with unlawful activities and the punishment thereof. Unlawful activities has been defined u/s 2(o), which reads as under:-
“2(o) “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, on 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; or
(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or
(iii) which causes or is intended to cause disaffection against India;”
39. Of course in the speeches aforesaid, there had been a call to co-operate with SIMI and to project their views despite all odds. Primarily, the prosecution places reliance upon the speeches of accused 2 and 3 which was heard by PW1 and the police officers and also the documents which were in possession of accused 1 to 5 in order to arrive at a conclusion that it was a meeting of SIMI. The punishment provided u/s 13 is imprisonment for a term which may extend to 7 years and also fine. While considering the unlawful activity which is the subject matter u/s 13, the argument of the defence is that none of the sub-clauses of S.2(o) will come into play as far as the allegations are concerned. Sub clause (i) relates to supporting any claim for the cession of a part of the territory of India, or secession of a part of the territory of India from the Union. Prosecution of course has no such case. Clause (ii) of S. 2(o) is with reference to the action which amounts to disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India. There is no such statement in either of the speeches which has been extracted by PW1. Clause (iii) of S.2(o) which is relied upon by the prosecution is an activity which causes or is intended to cause disaffection against India. Disaffection of course had been explained in Explanation 1 to S.124A which includes disloyalty and all feelings of enmity. In fact, we have already held that no such factors are brought out. No such enmity or disloyalty to Government of India can be read into the impugned speeches as spoken to by PW1. In the result, we are of the view that the offence u/s 13(1)(b) has not made out. Coming back to S.10(i)(a), it is regarding continuance to be a member of SIMI. Several documents had been seized from PW1 to PW5. None of these documents had been banned by Government of India. Some of the documents contain the seal of SIMI and some are published by SIMI. The question is whether any such document has been published by any of the accused after the first schedule had been incorporated in the UAP Act, effective from 1/02/2013. If any person is holding any publication, pamphlets or leaflets, which are published or printed prior to the effective day, such persons cannot be treated as persons continuing to be members of SIMI. Therefore, the fact that some documents are available with them which are either SIMI publications or contains the seal of SIMI is not enough to implicate that they continued to be members of SIMI, the banned organization. It is at this juncture that we have to consider the delay on the part of the prosecuting agency while sending the seizure mahazar Ext.P63 to the Court. Defence has a case that most of the documents had been procured subsequently and it was later planted on the accused and made it appear that it was the accused who brought it. In fact, there is no explanation for the prosecution regarding the delay in sending the seizure mahazar to Court which is also one of the reasons for not placing reliance on these documents.
40. Then the only question is whether the meeting was convened by SIMI and whether the other accused had attended the meeting knowing that it was a meeting held by SIMI. In fact, the Apex Court in Arup Bhuyan v. State of Assam [(2011) 3 SCC 377] while considering a provision u/s 3(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1985 held that a mere membership of a banned organization will not make a person criminal unless he resorts to violence or incites people to violence or creates public violence. Of course under the UAP Act, S.10 prohibits a person to continue as a member of the association and to take part in meetings of such association. There is no evidence in the case to prove that the meeting was convened for conducting a meeting of SIMI. Therefore the participants in the meeting including PW1, may not know the purpose of the meeting and hence primarily they cannot be made liable for any offence u/s 10(a)(ii) of the UAP Act. Prosecution says that during the speech of A2 and A3, others applauded and clapped their hands. The evidence in that regard is a clear omission which amounts to contradiction.
41. Then the question is whether accused 1 to 5 continued to be member of the association. Other than the fact that they have made a speech, even according to the prosecution, that they should fight through the organization SIMI, there is nothing to imply that they continue to be members of the said organization. The only evi
Please Login To View The Full Judgment!
dence we have is that of PW1, which is not corroborated by any other materials or evidence. When the accused had denied involvement in any such organization, it is for the prosecution to prove that they were propagating SIMI ideology. We could arrive at a conclusion that the speakers A2 and A3 were following SIMI ideologies only if we believe the version of PW1. But as already stated, he is treated as an accomplice by the prosecution. He was originally a witness, later he is made an accused and thereafter he is made an accomplice. His evidence is not corroborated by any other evidence. 42. PW48 took over investigation on 16/9/2008. He questioned various witnesses including PW2 and seized a diary (Ext.P10) as per Ext.P32 mahazar. His deposition was that it was recorded in the diary that the auditorium was given on 15/8/2006. In fact, a reference to Ext.P10 would show that the year is not recorded, it is only recorded as 15/8 and the diary is that of 2004. Therefore, much reliance could not be placed on Ext.P10 as such. He further deposed that later he had come to know that the persons who attended the meeting clapped and appreciated the speakers and they did not go away. 43. The defence has yet another case that the sanction for prosecution was not given in time and the Court below had not properly considered the same and had based its order on assumptions. There is no dispute about the fact that u/s 45, no court shall take cognizance of any offence under Chapter III without the previous sanction of Central Government or any officer authorized by the Central Government in this behalf. Sub section (2) indicates that sanction for prosecution under subsection (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation within such time as may be prescribed to the Central Government or, as the case may be. The contention is that there is no material to indicate that sanction was given within the time as prescribed. The Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 had come into effect from 31/12/2008. Rule 3 indicates the time limit for making a recommendation by the authority. The concerned authority shall make its report containing the recommendations to the Central Government or to the State Government as the case may be within 7 working days of the receipt of the evidence gathered by the Investigating Officer. Rule 4 further indicates that the Central Government or the State Government, as the case may be, shall under sub-section (2) of S.45 of the Act, take a decision regarding sanction for prosecution within 7 working days after receipt of the recommendations of the authority. The sanction which has been produced in the case is Ext.P147 which is proved by PW42. When a time limit is provided under the statute, the authority concerned will have to comply with the same. Perusal of the judgment of the Court below would show that the Court had only assumed that it would have been given within time. It could be seen that Ext.P147 is dated 16/12/2010. PW1 was made an approver on 23/11/2010. The draft final report, according to the Court below, ought to have been prepared on 24/11/2010 and the papers would have reached the recommending authority by 29/11/2010. Recommending authority would have taken clear seven days excluding holidays and would have kept the file till 8/12/2010 and passed on the recommendation on 8/12/2010. Clear seven days from the said date will be over by 17/12/2010 and the final sanction was given on 16/12/2010. But unfortunately nothing can be seen from Ext.P147 regarding the date on which they have received the recommendation from the recommending authority. PW42 who proves Ext.P147 sanction order says that he does not remember the date on which the recommending authority took the decision for recommendation. However, he said that it was received well in time. He also deposed that in Ext.P147, the number and date of proceedings of that recommendation has not been shown. When a statute prescribes a time limit for the recommendation, the same has to be complied with in letter and spirit. Apparently, in this case, though specific questions had been asked regarding the date on which recommending authority had recommended sanction and the competent authority had granted the sanction, in order to ascertain whether the time limit specified under the rules had been completed, no materials were produced by the prosecution. Of course, the learned Special Public Prosecutor has argued that when the sanction is available, the irregularity in providing the sanction may not be material. Having regard to the fact that we have already decided the case on merits, there is no reason to give a decision in this regard. However, it is made clear that it is for the prosecution to prove that the statutory time limits are complied with though this issue may not arise in this case as matters stand now. 44. Having regard to the aforesaid facts, we are of the view that the Court below has committed serious error in convicting the accused. Primarily the Court below had also placed reliance on materials which are not before Court especially the materials available from the website which was unwarranted. We are of the view that the accused are entitled for an acquittal. In the result; (i) Crl.Appeal No.12/2016 filed by the State is dismissed. (ii) Crl.M.C.No.1538/2017 filed by the 13th accused is allowed. Annexures A1 and A2 are quashed. (iii) Crl.Appeal No.148/16 filed by accused 1 and 3, Crl.Appeal No.721/16 filed by A2, Crl.Appeal No.204/16 filed by A4 and Crl.Appeal No.327/2016 filed by 5th accused are allowed. Accused 1, 2, 3, 4 and 5 are acquitted and they shall be released forthwith, if their presence is not required in connection with any other case. If any of the accused are on bail, their bail bond shall stand cancelled.