R.K. KRISHNA KUMARversusSTATE OF ASSAM AND ORS.

                          R.K. KRISHNA KUMAR                                        A
                                       v.
                      STATE OF ASSAM AND ORS.

                             DECEMBER 3, 1997

              [M.K. MUKHERJEE AND KT. THOMAS, JJ.)                                  B

       Oiminal Law :

       Oiminal Procedure Code, 1973 : Section 438.

       Anticipato1y Bail-Under the Unlawful Activities (Prevention) Act and         C
 Penal Code-Grant of-Officers of a Company met some leaders of an
 unlawful association, negotiated with them in co1111ectio11 with their vwious
 demands including ransom demands-Case Diaty revealed that the Company
 had funded the said unlawful association and the Officers had a role to play
 in such funding-Held : In such circumstances, a p1inia f acie case under S. l 0    D
 made out against the Officers, in that, they assisted the operations of the said
 un/a11ful association but not under Section 13 thereof or under the Penal
 Cod~Hence, question of granting anticipat01y bail does not wise since
 offence under S.10 is bailable-unlawful Activities (Prevention) Act, 1967,
 Ss. IO and 13-Penal Code, 1860, Ss. 120-B, 121, 121-A and 122.
                                                                                    E
       Section 438-Anticipatory Bail--Grant of-Held: Not applicable if the
 offence is bailable.

       The appellants were Officers of a Company and they met some
 leaders of an unlawful association, negotiated with them in connection with
 their demands including ransom demands and payment of hospital and F
 hotel bills. The case diary of the investigation proceedings had revealed
 that the Company had funded the said unlawful association and that the
 appellants had a role to play in such funding. On the basis of these facts
 the police registered a case against the appellants under Section 120-B,
 121, 121-A and 122 of the Penal Code, 1860 and Sections 10 and 13 of the
 Unlawful Activities (Prevention) Act, 1967.                                 G
        The appellants apprehende<I that they might be arrested in connec-
  tion with the above case and, therefore, they filed applications for an-
  ticipatory bail before the Bombay High Court under Section 438 of the
, Criminal Procedure Code, 1973. The applications were allowed by the
  Bombay High Court. Being aggrieved the respondent-State preferred an H
                                       153
           154                   SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

       A appeal before this Court. This Court set aside the order of the Bombay
           High Court as it was passed ex-palte and transferred the anticipatory bail
           applications to the Gauhati High Court. However, the Gauhati High Court ·
· ..       dismissed these applications. Hence this appeal.

                 Disposing of the appeal, this Court
       B
                 HELD : 1. When the materials collected during investigation are
         judged in the light of the provisions of the Penal Code, 1860 and Unlawful
         Activities (Prevention) Act, 1967 it is apparent that they make out a plima
         f acie case under Seclion 10 of the Act against the appellants, in that, they
          have assisted the operations of an unlawful association through contribu-
       c  tions and also in other ways. However, when those material allegations
          levelled against the appellants are considered vis-a-vis the 'unlawful
          activities' envisaged under the Act it cannot be said that they are liable for
          an offence under Section 13 of the Act, much less under the offences under
          the Penal Code. Resultantly, the question of granting anticipatory bail to
       D the appellants under Section 438 of the Criminal Procedure Code, 1973
          cannot and does not arise, for an offence under Section 10 of the Act is
          bailable; arid a direction under the former can be issued only in respect of
         a non-bailable offence. [159-F-H; 160-A]

                 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       E   1157 of 1997 etc. etc.

                From the Judgment and Order dated 10.11.97 of the Assam High
           Court in S.C.A. No. 60 of 1997.

                Soli J. Sorabjee, Shanti Bhushan, Arun Jaitley, Mahesh Jethmalani,
       F   Arvind Kumar, Upamanyu Hazarika, R.N. Karanjawala, Ms. Nandini
           Gore, Ms, M. Karanjawala, Advs. with them for the Appellants.

                KT.S. Tulsi, Sunil .Jain, Vijay Hansaria, Vikas Pawha, for M/s Jain
           Hansaria & Co., for the Respondents.

       G         The .T udgment of the Court was delivered by

                 M.K. MUKHERJEE, J. Leave granted in all these petitions. Heard
           the learned counsel for the parties.

                 2. On a First Information Report (F.LR.) lodged by the Superinten-
       H dent of Police, Special Operation Unit (SOU), Assam, a case under
       R.K KRISHNA KUMAR v. STATE [M.K MUKHERJEE, J.]                  155

Sections 120-B, 121, 121-A and 122 of the Indian Penal Code and 10 and A
13 of the Unlawful Activities (Prevention) Act, 1967 ('Act' for short) was
registered by the SOU Police Station. The F.I.R. was based on reports
collected from various parts of the State of Assam regarding secessional
activities of some militant organisations including United Liberation Front
of Assam (ULFA). In connection with that case three ULFA activists were B
arrested by the police at Mumbai Airport on August 23, 1997. It is alleged
that their interrogation revealed that their hotel bills and the medical bill
of one of them, namely Mrs. Pranati Deka, who was admitted in a hospital
for child birth, were borne by TATA Tea Company Ltd. ('Company' for
short) under instructions frofu, amongst others, Shamsher Singh Dogra, the
General Manager of the Company. A few df!YS later, a report appeared in C
various newspapers circulating throughout the country of a Press Con-
ference held by the Director General of Police, Assam to the effect that
the Company had not only paid the personal bills of top ULFA militants
but had also paid money, which ran to several lakhs, to ULFA on various
occasions. On perusal of the report Shri R.K. Krishna Kumar, Shri S. D
Kidwai and Shri K. Sridhar, the Managing Director, Executive Director
and a Consultant of the Company respectively, (the three appellants before
us) apprehended that they might be arrested in connection with the above
case. They then filed separate applications before the Bombay High Court
under Section 438 of the Code of Criminal Procedure praying that they
might be directed to be released forthwith in the event of their arrest at E
the instance of the Director General of Police of Assam in connection with
the above case, or any other case that may be filed concerning the allega-
tions of funding of ULFA militants. Their prayer was allowed by the
Bombay High Court; and aggrieved thereby foe State of Assam preferred
appeals in this Court after obtaining special leave. This Court set aside the F
order of the Bombay High Comt as it was passed ex pa1te and transferred
the anticipatory bail applications filed by the appellants to the Gauhati
High Court for disposal by a Division Bench. This Court, however, per-
mitted the appellants to continue on the anticipatory bail granted by the
Bombay High Court till November 7, 1997. Pursuant to the said direction
the applications for anticipatory· bail were heard on November 7, 1997 by G
a Division Bench of the Gauhati High Court and the prayer of the appel-
lants wa~ rejected. Hence these appeals at their instance.

      3. Briefly stated, the case of the appellants, as can be culled out from
the affidavits (and the annexures thereto) filed before this ·Court, is as H
    156                  SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

A under:

           (a) The Company owns 21 tea gardens in the State of Assam and has
    21,000 employees on its roll. The company have had been the targets of
    extortion, killing and, kidnapping by the militant organisations, including
B   ULFA. Ip the past sev~ral attew pts had been made to intimidate the
    employees of the Company and make ransom demands on it. In the year
    1993, Mr. B. Bordoloi, a Senior Executive of the Company stationed at
    Gauhati, was captured by one of those militant organisations and kept in
    detention for a period of eleven months. Though the Company was
    pressurized by the public, and the family of Mr. Bordoloi in particular, to
c   pay the ransom demanded by the militant organisation for securing his
    release it refused to do so. Later on ULFA repeatedly made several
    demands to the Company in the forms of a tax for each of the tea estates
    owned by it, walkie talkie sds etc. On each of such occasions the Company
    brought the demands to the notice of the appropriate authorities of the
D   Central Government either personally through their officers or by letters
    and the Central Government had put the Company in touch with its
    Intelligence Bureau.


          (b) According to the Company it was the Central Intelligence Agency
E   which advised it to continue negotiations with the militants but not to pay
    ransom/protection money to them. Though the Company insisted that it
    would not make any payment of unlawful money to the militants it
    formulated several social and community welfare schemes for the people
    of Assam. The Company asserts that all negotiations with militant
F   organisations took place with the knowledge and guidance of Central
    Government agencies.


        (c) While admitting that the Company negotiated with the ULFA,
  that some of its officers met some leaders of that organisation in Bangkok
G in connection with their demands, and that it paid the hospital bill and
  hotel bills of their members in Mumbai it has submitted that to protect the
  larger interest of the employees of the Company and its tea gardens, it was
  compelled to yield to some of the demands of the organisation. The
  Company, however, categorically denied to have paid any ransom to the
H ULFA or any other militant organisation.
            R.K. KRISHNA KUMAR v. STATE [M.K. MUKHERJEE, J.]                   157

             4. On the basis 0f the above facts and circumstances Mr. Shanti          A
     · Bhushan who appeared for the Company, contended that it could not be
       said that any officer of the Company had committed any offence, far less
       the offences alleged against them.

           5. Mr. Tulsi appearing for the respondent-State ~f Assam, however, B
     refuted the contentions of the Company and submitted that investigation
     has revealed the involvement of a number of officers of the Company,
     including the appellants, in the illegal and unlawful activities of ULFA and
     other militant organisations and, therefore, the appellants should not be
     granted anticipatory bail. Mr. Tulsi further submitted that denial of an C
     opportunity to the Investigating Agency to interrogate the appellants in
     custody, confronting them with the information available with the
     Investigating Agency, obtaining their version pursuant to the leads gained
     through interrogation by conducting raids and searches of the hide-outs of
     the militants has put the Investigating Agency at serious handicap in being
     able to discover the extent and manner of the involvement of the employees D
     of the Tata Tea Company in 'unlawful activities' within the meaning of the
     Act. To bring home his contentions Mr. Tutsi handed over to us the case
     diary prepared and maintained under Section 172. Cr. P.C.

           6. On a careful persual of the case diary we find that the investigation   E
     has revealed that some of the officers of the Company <lid meet top leaders
     of ULFA within and outside India in which negotiations were held between
     them over the various demands made by the latter and that the Company
     has expressed its willingness to accede to some of those demands. The
     investigation has further revealed that the Company has funded the
                                                                                      F
     organisation and the appellants had a role to play in it.

            7. On the basis of the above materials collected during investigation,
     it is now to be seen whether the appellants have committed the offences
-·   for which they are sought to be made liable. Coming first to the offences
     under the Indian Penal Code Section 120-B relates to criminal conspiracy G
     to commit any offence atid Sections 121, 121-A and 122 specifically relate
     to offences against the State. While Section 121 provides for punishment
     of those engaged in waging war against the Government of India, the other
     two Sections relate to conspiracy and preparation to commit such offence
     by collecting arms etc., respectively.                                        H
     158                   SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.

A          8. To ascertain the nature of offences envisaged under Sect?ens 1Q.
     and 13 of the Act, it would be necessary to first refer to the definition of
     'unlawful activity' in Section 2 (t) of the Act which reads as under :

             '"unlawful activity', in relation to an individual or association,
             means any action taken by such individual or association (whether
B            by committing an act or by words, either spoken or written, or by
             signs or by visible representation or othenvise ), -

 •           (i) which is intended, or supports any claim, to bring about, or any
             ground whatsoever, the cession of a part of the territory of India
c            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;

             (ii) which disclaims, questions, disrupts or is intended to disrupt
_o           the sovereignty and territorial integrity of India;"

     'Unlawful association' has been defined in Section 2(g)        to mean any
     association :

             "(i) which has for its object any unlawful activity, or which en-
E            courages or aids persons to undertake any unlawful activity, or of
             which the members undertake such activity; or

             (ii) which has for its object any activity which is punishable under
             Section 153-A or Section 153-B of the Indian Penal Code, 1860
F            ( 45 of 1860), or which encourages or aids persons to undertake
             any such activity, or of which the members undertake any such
             activity :

             Provided that nothing contained in sub-clause (ii) shall apply to
             the State of Jammu & Kashmir."
G
           9. Section 10 provides that whoever is and continues to be a member
     of an association declared unlawful by a notification issued under Section
     3 which has become effective under sub- section (3) of that section, or takes
     part in meetings of any such unlawful association, or contributes to, or
H    receives or solicits any contribution for the purpose of any such unlawful
         R.K. KRISHNA KUMAR v. STATE[M.K.MUKHERJEE,J.]                   159

  association or in any way assists the operation of any such unlawful A
  association shall be punishable with imprisonment for a term which may
  extend to two years and shall also be liable to fine.

        10. Section 13 speaks of punishment for 'unlawful activities' and it
  reads as follows :
                                                                                B
          "(1) Whoever -

          (a) takes part in or commits, or

          (b) advocates, abets, advises or incites the commission of,
                                                                                c
          any unlawful activity, shall be punishable with imprisonment for a
          term which may extend to seven years, and shall also be liable to
          fine.

          (2) Whoever, m any way, assists any unlawful actlVlty of any
          association, declared unlawful under Section 3, after the notifica-   D
          tion by which it has been so declared has become effective under
          sub-section (3) of that section, shall be punishable with imprison-
          ment for a term which may extend to five years, or with fine, or
          with both.
                                                                                E
       (4) Nothing in this section shall apply to any treaty, agreement or
 convention entered between the Government of India and the Government
 of any other country or to any negotiations thereof carried on by any person
 authorised in this behalf by the Government of India."

         11. When the materials collected during investigation are judged in F
  the light of the above provisions of the Indian Penal Code and the Act, it
  is apparent that they make out a p1ima facie case under Section 10 of the
  Act against the appellants, in that, they have assisted the operations of
  ULFA (which has been declared as an unlawful association under Section
  3 of the Act) through contributions and also in other ways. However, when
, those material allegations levelled against the appellants are considered G
  vis-a-vis the 'unlawful activities' envisaged under the Act it cannot be said
  that they are liable for an offence under Section 13 of the Act, much less
  under the aforesaid offences under the Indian Penal Code. Resultantly, the
  question of granting anticipatory bail to the appellants under Section 438
  of the Code of Criminal Procedure cannot and does not arise for an H
    160                      SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.

A   offence under Section 10 of the Act is bailable; and a direction under the
    former can be issued only in respect of a non-bailable offence. Viewed in
    that context the merits of the appellants' contention that they have not
    committed any offence alleged against them need not he gone into.

              HJ. V.'ith the above ohservations we dispose of these appeals.
B
    '!.S.S.                                                   Appeals disposed of.