(SHORT NOTE)
2007(2) Crimes 687 (Bom.)
BOMBAY HIGH COURT
V.G. Palshikar and Nishita Mhatre, JJ.
Javed @ Java Ahmed Mohd. Akbar Bhatt & Ors. - Appellants
versus
State of Maharashtra - Respondent
Criminal Appeal No. 468 of 2003
Decided on 11-12-2006

IMPORTANT POINT
To establish that an offence under Section 122 has been committed, it was incumbent on the prosecution to prove that the collection of men, arms and ammunition was for no other purpose but to prepare to wage a war against the Government of India.

Headnote:Indian Penal Code, 1860 - Section 122 - Arms Act - Section 25(1B)(a) - Evidence Act 1872 - Section 111A - Preparation and Intention to wage a war against Govt. of India - Four-accused-appellants were apprehended from a room raided by police on information that they belonged to terrorist group Hijbul Mujahid - Recovery of fire arms and ammunition and certain magazines and periodicals - Conviction of all four accused by trial Court - Appeal - Prosecution must show that possession of armoury or arms was part and parcel of planned operation and that intention was to resist or overthrow the Govt. or to prepare to do so - Nothing on record to substantiate inference that accused belonged to Hizbul Mujahid, a terrorist, group - Magazines and periodicals contained criticism against India but it could not be concluded that persons wanted to wage war against India - No evidence that area from which accused were arrested was a disturbed area or that accused had used firearms against persons charged with maintaining law and order or armed forces - Presumption u/s 111A of Evidence Act could not be drawn - Conviction u/s 122 IPC could not be sustained - Conviction u/s 25(1B) (a) of Arms Act however was liable to be confirmed when fire arms and ammunition possessed by accused was without licence.

       Held : The prosecution has failed to establish that the literature obtained from the room was in any manner inflammatory or provocative or that it incited the readers to unite in waging war against the Government of India. The prosecution has not cared to bring on record the translations of the Urdu periodicals and the offending literature. A perusal of the impugned judgment does not disclose that such translations were made available to the learned trial Judge. However, the learned trial Judge has elaborately dealt with the criticism against India published in these Urdu periodicals. We are not aware as to how the learned Judge came to the conclusion that the Urdu periodicals criticised the premise that India was an ancient culture. Such criticism or the mere publication of photographs of some important dignitaries of India or Osama Bin Laden or the President of America, would not in our opinion, establish that the literature incited and instigated the readers to wage war against the Government of India.

       To establish that an offence under Section 122 has been committed, it was incumbent on the prosecution to prove that the collection of men, arms and ammunition was for no other purpose but to prepare to wage a war against the Government of India. There is no evidence at all that these four individuals had organised a movement or were part of a movement, attended with violence or attacks against public officials. Nor is there any proof that had collected the arms with a view to destruct public property, etc. which as the Supreme Court has held in the State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru and Ors. (supra), could amount to waging of war. It was necessary for the prosecution to establish that the fire power of the potential devastation which could be caused by the arms and ammunition recovered from the accused was such that it would point to their design to prepare to wage a war against the Government of India. The report of the ballistic expert which is on record does not disclose this fact. Although as held by the Supreme Court in State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru and Ors. (supra), the term “waging war” must be understood in a different context in the present day scenario and not interpreted as done earlier in the general sense, there is no evidence at all on record to establish that the collection of the arms and ammunition by the accused was for the purpose of preparing to wage war.

       In such circumstances, it is obvious to us that the prosecution must fail. The charge under Section 122 of the IPC has not been established. It appears that the prosecution was overawed by the fact that it claimed that the accused belonged to the Hizbul Mujahid and that the accused hailed from the State of Jammu and Kashmir. The prosecution has not established through its evidence that the accused did in fact belong to this organisation. There is no evidence on record to establish that this organisation is intent on waging war against the Government of India.

       The fact that the accused were in possession of the arms without a licence has been established and, therefore, there is no doubt that they committed the offences under the Arms Act for which they have been convicted. However, in our opinion, the conviction under Section 122 of the Indian Penal Code cannot be sustained.

       Under Section 111A of the Indian Evidence Act, a presumption can be drawn against a person who is accused of having committed an offence punishable under Section 122 of the Indian Penal Code. It can be presumed that a person charged under Section 122 of the Indian Penal Code, is guilty if it is shown that he had been in an area declared to be a disturbed area and where firearms or explosives were used or found to attack or resist the members of any armed forces or forces charged with the maintenance of public order, while discharging of their duties. However, the prosecution in this case has not established that the area from which the accused persons were arrested was a disturbed area or that the accused had used the firearms against persons charged with maintaining law and order in that area or the armed forces. Therefore, such a presumption under Section 111A of the Indian Evidence Act also cannot be drawn in the present case.

       Hence, the judgment of the learned Sessions Judge insofar as it convicts the accused under Section 122 of the Indian Penal Code is set aside.

       Result : Appeal allowed partly.