Jammu & Kashmir High Court
Unknown vs Muhammad Yaseen Malik And Others on 26 April, 2019
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
OWP No.395/2019
IA No.1/2019, 2/2019
c/w
OWP No.396/2019, IA No.1/2019
Date of order:26.04.2019
Muhammad Yaseen Malik and ors v State of J&K& anr
Muhammad Yaseen Malik and ors v State of J&K& anr
Coram:
Hon‟ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For petitioner(s) : Mr. Z.A. Shah, Sr. Advocate with
Mr. Z.A. Qureshi, Advocate
For respondent(s) : Ms. Monika Kohli, Advocate.
i) Whether approved for reporting in Law Journals etc.: Yes/No
ii) Whether approved for publication in Press: Yes/No
1. Both these writ petitions have been filed in similar circumstances and facts situation and raise identical questions of law, therefore, they are being taken up together for consideration.
OWP No.395/20192. With regard to an incident which occurred on 25.01.1990 at about 7:30 AM involving Air Force employees at Rawalpora, Srinagar, were fired upon by terrorists, FIR No.22 came to be registered by Police Station Saddar, Srinagar, under Sections 302/307 of Ranbir Penal Code (RPC), 3(1) Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and 3/25 Indian Arms Act, against unknown persons. In this firing 40 Air Force employees including a lady received serious injuries while two Air Force personnel were killed on the spot.
OWP Nos.395/2019 & 396/2019 Page 1 of 273. A notification came to be issued thereafter by the Government of Jammu & Kashmir on 22.02.1990 under Section 6 of the Delhi Special Police Establishment Act, 1946 (DSPE hereinafter) as well as a notification dated 01.03.1990 was issued by the Government of India under section 5 of the DSPE Act resulting in the investigation of the case being taken over by the Central Bureau of Investigation ('CBI' hereinafter). The case was registered by the CBI as RC 1(S)/1990/SIU.V/SC-II)
4. On completion of investigation, a charge sheet was filed on 31.08.1990 in the case by the CBI under Section 120-B read with Section 302 RPC, Sections 3 and 4 of TADA Act and Section 27 of the Arms Act against Muhammad Yaseen Malik and five others, before the designated TADA Court at Jammu which was the 3rd Additional Sessions Judge, Jammu.
5. During the pendency of the trial before the court of 3 rd Additional Sessions Judge (TADA) Jammu, a petition dated 25.10.2008, came to be filed on behalf of the accused persons under SR0 168 dated 01.05.1990 read with SRO 70 dated 05.02.1991 seeking transfer of the case to the designated court at Srinagar. The CBI filed objections and opposed the application which came to be rejected by an order dated 20.04.2009.
OWP No.396/20196. This case related to the incident when Dr. Rubiya Syed, was kidnapped while she was going in a Tata Mini Bus from Lala-Ded Hospital, Srinagar, to her house at Nowgam, and taken to some unknown place by some unknown terrorists travelling in the same mini bus who threatened to kill her in case their illegal demands OWP Nos.395/2019 & 396/2019 Page 2 of 27 were not met and created terror amongst all the passengers by showing gun and pistols to them. In this regard, FIR No.339 was registered on 08.12.1989 by Police Station Saddar, under Sections 364, 368 RPC, Section 3 (1) TADA Act and 25 Indian Arms Act, against unknown persons.
7. Investigation in this case was also assigned to the CBI on the basis of notification issued by the Jammu & Kashmir Government on 22.02.1990 under Section 6 of the Delhi Special Police Establishment Act, 1946 (DSPE hereinafter) as well as a notification dated 01.03.1990 issued by the Government of India under Section 5 of the DSPE Act. The case was registered by the CBI as RC 07 (S)/1990/SIU.V/SC-II).
8. After completion of the investigation in the case, the charge sheet in this case was filed by the CBI on 18.09.1990 under Section 120- B read with Sections 364, 368, 109 and 34 RPC, Section 3 (1) TADA and Section 27 of Arms Act, before the designated court under the TADA Act being the court of 3rd Additional Sessions Judge (TADA Cases) Jammu.
9. During the pendency of trial in this case as well, on 25.10.2008, an application was filed by the accused persons under SRO 168 dated 01.05.1990 read with SRO 70 dated 05.02.1991 seeking transfer of the case to the designated TADA Court at Srinagar. CBI filed objections and opposed the application which came to be rejected by the order dated 20.04.2009.
10. Aggrieved of the order dated 20.04.2009, two writ petitions bearing OWP No.431/2009 & OWP No.432/2009 came to be filed by the petitioners/accused persons in Srinagar Wing (subsequently OWP Nos.395/2019 & 396/2019 Page 3 of 27 allotted OWP Nos.395/2019 and 396/2019 respectively, on these being transferred to Jammu Wing vide order dated 13.03.2019) for quashing the said order and for issuance of appropriate writ direction directing allotment/assignment of the case titled State through CBI v/s Muhammad Yaseen Malik and others, registered by CBI under R.C No.1(S)/90-SIU.V/CBI/N.Delhi originally registered by Police Station Saddar, Srinagar under FIR No.22/1990 dated 25.01.1990, to the Designated Court at Srinagar.
11. In these petitions, it has been averred that vide SRO No.412 two designated courts one for Srinagar and one for Jammu Division were created. It is apt to reproduce SRO 412 dated 19.10.1985 as under:-
"SRO 412-In exercise of the powers conferred by sub-Section (1) and (2) of Section 7 of the Terrorist and Disruptive Activities (Prevention) Act, 1985 the Government of Jammu and Kashmir hereby constitute two Designated courts, one for Kashmir Division and the other for Jammu Division and with the concurrence of Hon‟ble chief Justice of High Court of Jammu and Kashmir hereby appoint Shri Ghulam Rasool Kabta, District and Sessions Judge, and Sardar Harchan Singh Bahari, District and Sessions Judge as Presiding Officers of the aforesaid Designated Courts for Kashmir Division and Jammu Division respectively."
12. That Designated Court at Srinagar constituted for hearing of the cases arising under Terrorists and Disruptive Activities (Prevention) Act was abolished and designated court constituted for hearing of cases arising under Terrorists and Disruptive Activities (Prevention) Act, at Jammu Division was given jurisdiction throughout the State with head quarter at Jammu. It is apt to reproduce SRO 168 dated 01.05.1990 as under:
"SRO-168 In exercise of the powers conferred by section 9 of the Terrorists and Disruptive Activities (prevention) Act for the time OWP Nos.395/2019 & 396/2019 Page 4 of 27 being in force in the State and all other powers enabling the Governor in this behalf and in modification of all previous Notifications issued on the subject it is hereby ordered as follows:
i) That the designated court constituted under the aforesaid Act for Kashmir division shall stand abolished; and
ii) That the designated court constituted for hearing of the cases under the aforesaid Act in Jammu Division shall have jurisdiction throughout the State with headquarters at Jammu."
13. Vide SRO 70 dated 05.02.1991 Additional Judge came to be appointed as Judge of the Designated Court at Srinagar. The proviso to the said SRO provided that the Additional Judge, holding the court at Srinagar will transact such business as may be allotted/assigned to the said court by the Designated Court. It is apt to reproduce SRO 70 dated 05.02.1991 as under:
"SRO 70-Consequent upon the creation of a post of Additional Judge in the Designated Court created vide SRO 412 dated 19.10.1985 read with SRO 168 dated 1st of May, 1990, the State Government in exercise of the powers vested in it under Section 9 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and with the concurrence of the Chief Justice of the High Court, hereby appoint:-
(i) Shri M.L. Koul, Presiding Officer of Industrial Tribunal/Labour Court, J&K as Judge (Presiding Officer) of the Designated Court in place of Shri P.S.Bhardwaj; and
(ii) Shri M.Y. Kawoosa, District and Sessions Judge Anantnag, as Additional Judge in the said Court.
The Additional Judge will hold its sitting at Srinagar for transacting such business as may be allotted/assigned to him by the Judge of the Designated Court.
Shri P.S. Bhardwaj shall stand reverted back to the Judicial Department."
14. It has further been stated that under Section 11 every offence punishable under TADA has to be tried by the Designated Court within whose local jurisdiction, it is committed; that since the OWP Nos.395/2019 & 396/2019 Page 5 of 27 alleged offences were shown to have been committed at Srinagar, therefore, the petitioners were required to be tried by the court of Additional Judge of the Designated Court at Srinagar; that the petitioners have reason to believe that because of Amar Nath row, they cannot effectively defend themselves in the court at Jammu because of the situation in Jammu and the statements given by public leaders against the petitioners (one of them, Muhammad Yaseen Malik, being chairman of JKLF) and that it was not safe to face the trial at Jammu. It was also submitted that the petitioners could not even get a place to stay at Jammu because the hoteliers were also afraid of providing them accommodation; that the TADA court at Srinagar was competent to hear the case and the CBI prosecutor would have no difficulty in prosecuting the case. Many cases under TADA were being heard and tried at Srinagar; that the Designated Court at Srinagar was abolished in 1990, presumably on account of the circumstances which were prevailing then but subsequently the court was created at Srinagar and Additional Judge appointed; that the petitioners had to come all the way from Srinagar to attend the case and on many occasions it was difficult for them to attend the case because of suspension of road traffic on account of landslides/snow. On many occasions air traffic was also suspended because of bad weather. It was very expensive for the petitioners and their counsel to attend the case at Jammu on every date of hearing.
15. The petitioners have challenged the impugned order dated 20.04.2009 on the following grounds:
a) That the Final Report under Section 173 Cr.P.C was presented in the Designated Court at Jammu on 24.11.1990;OWP Nos.395/2019 & 396/2019 Page 6 of 27
that on the said date SRO 168 dated 01.05.1990 held the field and there was no other Designated Court in the State of Jammu and Kashmir and, therefore, the respondents had no choice but to present the Criminal case in the said Designated Court.
b) That vide Notification No. S.O.551(E) dated June 17,1995 the aforesaid case was transferred by Central Government under Sub Section (2) of Section 11 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 with the concurrence of the Chief Justice of India, to the Designated Court at Ajmer in the State of Rajasthan. Some of the petitioners herein, called in question the said Notification of the Central Government in OWP Nos.221/1995 and 222/1995. Other accused persons whose cases were also investigated by Central Bureau of Investigation (CBI) and order of transfer in their case was also issued, filed similar petitions before this Hon'ble Court being OWP Nos.223/1995, 224/1995 and 227/1995.
c) That the aforesaid Writ Petition remained pending in this court till 1998 when vide Order dated 23.04.1998 the Hon'ble Court, relying on the decision taken by the respondents in those writ petitions „not to press for the trial of the cases outside the State', declared the writ petitions as having become in fructuous. In fact the writ petitions were being heard by a third Judge on account of the difference of opinion between the two learned Judges who had initially heard the cases. The learned third Judge taking note of the communication and submissions of the counsel for the respondents in those writ petitions held as under:
"In view of the above, the Notification impugned in the writ petition shall be deemed to have been withdrawn."
The Notification challenged in the Writ Petitions was S.O.551(E) dated 17.06.1995.
d) That as a consequence of the withdrawal of the Notification dated 17.06.1995, as ruled by this Hon'ble Court in the aforesaid writ petitions, the original position with regard to place of trial was restored.
The trial court has observed that an order dated 07.081998, passed by the Designated Court at Ajmer, after the writ petitions were decided by this Hon'ble Court on 23.04.1998, shows that the Central Government vide Notification dated 15.05.1998 had ordered the cases to be sent back to the Designated Court at Jammu.
The petitioners say that there is no Notification dated 15.05.1998 available on record nor any such Notification could have been issued under Section 11(2) of the TADA.
OWP Nos.395/2019 & 396/2019 Page 7 of 27This is so for the reason that this Hon'ble Court vide its order dated 23.04.1998 had already declared the Notification dated 17.06.1995 to have been withdrawn by the Central Government. It is further submitted that no such procedure, prescribed by Section 11 of TADA for transfer of a case from one „designated court‟ to the other with the concurrence of the Chief Justice of India, was followed when the cases were brought back from „Designated Court Ajmer' to the 'Designated Court Jammu'.
The view taken by the court below that vide Notification dated 15.05.1998 issued by the Central Government, the cases have been specifically transferred to the Designated Court at Jammu and they cannot be further allotted or assigned is clearly an erroneous view. The earlier Notification dated 17.06.1995 was deemed to have been withdrawn by the Central Government, as ruled by this court and the effect of withdrawal was, as if the cases covered by Notification, were not transferred from Designated Court Jammu to Designated Court Ajmer.
e) That the court below has also observed that this Hon'ble Court vide its order dated 23.04.1998 passed in the batch of writ petitions referred to above has also observed that the trial of cases as such shall proceed at Jammu in accordance with law and, therefore, the cases cannot be assigned/allotted to the Designated Court at Srinagar. It is submitted that the view taken by the court below is clearly unsustainable. This Hon'ble Court in its judgment dated 23.04.1998 was not dealing with any transfer petition. This Hon'ble Court while disposing off the writ petitions was not fixing place of trial for the petitioners. The court made these observations, consequent to the decision of Central Government not to press for the trial at Designated Court, Ajmer, which only meant restoration of status-quo ante with regard to trial of cases. The court declared the writ petitions as having become infructuous because Notification dated 17.06.1995 was no longer operative. The Central Government did not place any fresh Notification under Section 11(2) on record nor any such Notification was in fact issued, providing for re-transfer of cases from Designated Court, Ajmer to Designated Court, Jammu. Only previous Notification of transfer dated 17.06.1995 was withdrawn. The High Court was not transferring the case under TADA from one Designated Court to the other, which it could not do, having regard to the provisions of TADA. The court below has clearly taken an erroneous view in the matter.
OWP Nos.395/2019 & 396/2019 Page 8 of 27f) That the court below has also ruled that under SRO 128 dated 22.04.2004 the jurisdiction of the Designated Court at Jammu has been limited to Jammu Division only. The State Government under Section 9(1) of the TADA had constituted two Designated Courts, one at Srinagar and the other at Jammu vide SRO 412 dated 19.10.1985.
Subsequently vide SRO 168 dated 01.05.1990 the Designated Court at Srinagar was abolished. Additional Judge in Designated Court, was created vide SRO 70 dated 05.02.1991 with its place of sitting at Srinagar. Subsequently vide SRO 128 dated 22.04.2004 the area of Designated Court, Jammu has been restricted to Jammu Division only for the purposes of TADA under Section 11 (1) of the Act, a Designated Court is competent to hold trial in respect of offences committed within its local jurisdiction or by Designated Court constituted for trying such offences under Sub Section (1) of Section 9. It is submitted that the trial of petitioners has not yet commenced. The offences alleged against the petitioners have been committed in Kashmir Division. Under SRO 168 dated 01.05.1990 the Designated Court, Jammu was conferred jurisdiction throughout the State. SRO 128 dated 22.04.2004 has taken away the jurisdiction of Designated Court, Jammu, and limited its local area to Jammu Division only. The Designated Court Jammu, cannot hold trial of cases offences whereof have been allegedly committed in Kashmir Division under TADA. Therefore, the Designated Court at Jammu, which had initial jurisdiction under SRO 168 dated 01.05.1990, lost its jurisdiction under SRO 128 dated 22.04.2004. The Designated Court at Jammu cannot proceed with the trial of the case at all.
g) That the court below has observed that since the jurisdiction of the Designated Court at Jammu has been limited by SRO 128 and the Government of India having transferred the case to the Designated Court at Jammu, the court can no longer allot or assign the case to the Designated Court at Srinagar. It is submitted that the conclusion drawn by the court below is clearly unsustainable. The court having come to the conclusion that it has no jurisdiction under SRO 128 dated 22.04.2004 failed to consider legal effect of its own findings. Admittedly the local jurisdiction of the court has been limited to try cases, arising under TADA, within Jammu Division under Section 9 and 11 of the Act, the Court can no longer deal with the cases against the petitioners. The court has ceased to be a „Designated Court‟ throughout the State. The cases at no stage were transferred to the said court by Central OWP Nos.395/2019 & 396/2019 Page 9 of 27 Government. The cases against the petitioners were already pending before the Court when Central Government under Section 11(2) transferred them to Designated Court, Ajmer under Notification dated 17.06.1995 which Notification was subsequently withdrawn as ruled by this Court in its order dated 23.04.1998. Initially the case was presented before Designated Court, Jammu, under SRO 168 dated 01.05.1990 because it had jurisdiction throughout State. It was not presented under any Notification of Central Government before the said court. Subsequently when the Notification dated 17.06.1995 was withdrawn previous position was restored. The court has clearly taken erroneous view that it can still deal with the case because of Notification dated 15.05.1998 of Central Government which is a non-existent Notification as it has not been produced.
h) That the petitioners say that their cases are to be tried by the Designated Court at Srinagar. The Designated Court at Jammu had the jurisdiction under proviso to SRO 168 to assign/allot the cases to the Additional Judge of the Designated Court at Srinagar but now it cannot proceed of its own with the cases in view of SRO 128. The view taken by the court below is contrary to law. The court has not considered other grounds stated in the application for allotment/reassignment of the cases.
I) That the provisions of Terrorists and Disruptive Activities Act are no longer in force. The provisions of subsequent legislation, Prevention of Terrorism Act, 2002, are also not in force. Vide SRO 236 dated 28.06.2007 Additional District and Sessions Judge, Srinagar is to function as Special Judge Designated Court POTA/TADA for Jammu and Kashmir Divisions respectively.
j) That the petitioners say that the Designated Court at Jammu having lost its jurisdiction can no longer proceed with the matter. The impugned order under which the Designated Court at Jammu has refused to allot/reassign the cases needs to be quashed.
16. The other side has filed counter affidavit, in which it has been stated that this petition is not maintainable because in terms of Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, it is only Hon‟ble Supreme Court who has jurisdiction to transfer the case from one Designated Court to another Designated court in the State. More than 30 years have been passed OWP Nos.395/2019 & 396/2019 Page 10 of 27 but the petitioners have lingered on the matter and even charge sheets in the cases have not been framed on account of delay caused by the petitioners. The trial court has rightly appreciated the matter and passed the order in accordance with law. The Central Government is the sole competent authority within the meaning of Section 11(2) of TADA Act for exercising power under the Act with the concurrence of Hon'ble the Chief Justice of India.
17. I have considered the rival contentions of learned counsel for the parties. Both parties have reiterated the stands taken in their pleadings.
18. From the pleadings of parties and as per admitted facts, petitioners are facing trial before court below in RC 1(S)/1990/SIU.V/SC-II) and RC 07 (S)/1990/SIU.V/SC-II). In both cases charges have not been framed yet. During pendency of these cases, petitioners filed two separate applications in two cases on same grounds for transfer of cases from Jammu Designated Court to the Designate Court at Srinagar Division in terms of SRO 168 read with SRO 70 (SUPRA). The title of application reads as under:-
"Petition in terms of SRO 168 dated 1.5.1990 read with section SRO 70 dated 5.2.1991 for transfer of the aforesaid criminal case to court of Additional Judge in the Designated Court at Srinagar."
19. The grounds are same which have been pleaded in the present petitions. The court below after inviting objection, dismissed the said petitions vide impugned order dated 20.4.2009. The relevant paras 6 to 14 of order impugned dated 20.04.2009 are reproduced as under:
OWP Nos.395/2019 & 396/2019 Page 11 of 27"6. I have heard and considered the arguments of Ld SPP for State and LC for accused and gone through the material on record.
7. Perusal of the file shows that the case was instituted on 24.11.90 at Jammu and in August 1995, the case was transferred to Designated Court Ajmer, Rajasthan and which proceedings were stayed by the Hon‟ble High Court of J&K. Thereafter, writ petitions were filed in the Hon‟ble High Court of J&K along with the prayer that the operation of the notification issued by the Central Government transferring the case to Ajmer be stayed and that the Designated Court at Jammu be allowed to continue with the said case in accordance with law.
8. The said writ petitions came to be disposed of by the Hon‟ble High Court of J&K at Srinagar vide order dated 23.04.98 wherein it was observed by the Hon‟ble High Court that "Both Mr Bhan and Mr Qadiri have confirmed that on reconsideration it has been decided by the respondents not to press for the trial of the cases outside the State.
In view of the above, the notification impugned in the writ petition shall be deemed to have been withdrawn. Consequently the issues raised in these petitions and in the order of reference do not survive for determination as the petitions have become infructuous and shall stand dismissed accordingly. The trial of the cases as such shall proceed at Jammu in accordance with law."
9. Perusal of the order dated 07.08.98 passed by the Designated Court Ajmer is to the effect that vide notification dated 15.05.98 issued by Government of India, the present case is ordered to be sent back to the Designated Court at Jammu.
10. Thus the material on record shows that accused themselves had filed writ petitions praying therein that the Designated Court at Jammu be allowed to continue with the case in accordance with law and which prayer was accepted by the respondent government and it was ordered by the Hon‟ble High Court that the trial of the cases, as such, proceed at Jammu in accordance with law. Hence, the contentions of the accused that it is the Designated Court at Srinagar which has the jurisdiction to try the case and therefore the case be assigned/allotted to the Designated Court at Srinagar is to be rejected.
11. The present case has been transferred to this court from Designated Court Ajmer vide notification dated 15.05.98 issued by the Government of India. The case has been transferred specifically to this court under TADA, the same cannot be further allotted/assigned to the Designated Court Srinagar.
12. Even, otherwise the application has to be rejected in view of SRO-128 dated 22.01.04 issued by Government of J&K which reads as " In exercise of powers vested under sub-section (4) of Section 9 of the Terrorist and Disruptive Activities (Prevention) OWP Nos.395/2019 & 396/2019 Page 12 of 27 Act, 1987 (Now repealed) and in modification of SRO Notification 374 dated 3.9.2001 the Government hereby direct that 3rd Additional District and Sessions Judge, Jammu shall also function as Special Court, TADA, Jammu (Designated Court) for the Jammu Division for purposes of the said Act."
13. Thus SRO-128 dated 22.04.04 issued by the Government of J&K limits the jurisdiction of this court to Jammu Division. As discussed above, the case has been transferred to this court by the Government of India under the provisions of TADA, this court has no jurisdiction to further allot/assign the case to the Designated Court at Srinagar.
14. In view of the facts and circumstances of the case as discussed above, application filed by accused persons is dismissed. Accused Mohd Rafiq present under custody be produced in this court on next date. The case is pending since 1990 and is at the initial stage of arguments on charge/discharge of accused persons. Put up file for arguments on charge/discharge on 25.4.2009.
20. Terrorist and Disruptive Activities (Prevention) Act, commonly known as TADA, was an Indian anti-terrorism law which was in force between 1985 and 1995 (modified in 1987) and was applied to whole of India. It came into effect on 23 May 1985. It was renewed in 1989, 1991 and 1993 before being allowed to lapse in 1995 due to increasing unpopularity after widespread allegations of abuse. It was the first anti-terrorism law legislated by the government to define and counter terrorist activities . Thereafter, The Prevention of Terrorism Act, 2002 (POTA) was passed by the Parliament of India in 2002, with the objective of strengthening anti-terrorism operations. The Act was enacted due to several terrorist attacks that were being carried out in India and especially in response to the attack on the Parliament. The Act replaced the Prevention of Terrorism Ordinance (POTO) of 2001 and the Terrorist and Disruptive Activities (Prevention) Act (TADA) (1985-95).
OWP Nos.395/2019 & 396/2019 Page 13 of 2721. At present we are dealing with TADA. It's certain sections are essential for deciding the matter in controversy, those are reproduced as under:
"Section 2. Definitions - (1) (c) "Designated Court" means a Designated Court constituted under Section;
Section 9 Designated Courts - (1) The Central Government or a State Government may, by notification in the official Gazette, constitute one or more Designated Courts for such area or areas, or for such case or class or group of cases as may be specified in the notification.
(2) Where a notification constituting a Designated Court for any area or areas or for any case or class or group of cases is issued by the Central Government under sub-section (1), and a notification constituting a Designated Court for the same area or areas or for the same case or class or group of cases has also been issued by a State Government under that sub-section, the Designated Court constituted by the Central Government, whether the notification constituting such Court is issued before or after the issue of the notification constituting the Designated Court by the State Government, shall have, and the Designated Court constituted by the State Government shall not have, jurisdiction to try any offence committed in that area or areas or, as the case may be, the case or class or group of cases, and all cases pending before any Designated Court constituted by the State Government shall stand transferred to the Designated Court constituted by the Central Government.
(3) Where any question arises as to the jurisdiction of any Designated Court, it shall be referred to the Central Government whose decision thereon shall be final.
(4) A Designated Court shall be presided over by a Judge to be appointed by the Central Government or, as the case may be, the State Government, with the concurrence of the Chief Justice of the High Court.
(5) The Central Government or, as the case may be, the State Government may also appoint, with the concurrence of the Chief Justice of the High Court additional Judges to exercise jurisdiction in a Designated Court.OWP Nos.395/2019 & 396/2019 Page 14 of 27
(6) A person shall not be qualified for appointment as a Judge or an additional Judge of a Designated Court unless he is, immediately before such appointment a Sessions Judge or an additional Sessions Judge in any State.
(7) For the removal of doubts, it is hereby provided that the attainment by a person appointed a judge or an Additional Judge of a Designated Court of the age of superannuation under the rules applicable to him in the service to which he belongs, shall not affect his continuance as such Judge or Additional Judge.
(8) Where any Additional Judge or Additional Judges is or are appointed in a Designated Court, the Judge of the Designated Court may, from time to time, by general or special order, in writing, provide for the distribution of business of the Designated Court among himself and the additional Judge or Additional Judges and also for the disposal of urgent business in the event of his absence or the absence of any Additional Judge.
11. Jurisdiction of Designated Courts. - (1) Notwithstanding anything contained in the Code, every offence punishable under any provision of this Act or any rule made thereunder shall be triable only by the Designated Court within whose local jurisdiction it was committed or, as the case may be, by the Designated Court constituted for trying such offence under sub- section (1) of Section 9.
(2) If, having regard to the exigencies of the situation prevailing in a State, the Central Government is of the opinion that, -
(a) the situation prevailing in such State is not conducive to a fair, impartial or speedy trial, or
(b) it is not likely to be feasible without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor and the Judge of the Designated Court or any of them, or
(c) it is not otherwise in the interests of justice, It may, with the concurrence of the Chief Justice of India (such occurrence to be obtained on a motion moved in that behalf by the Attorney-General), transfer any case pending before a Designated Court in that State to any other Designated Court within that State or in any other State.
OWP Nos.395/2019 & 396/2019 Page 15 of 27(3) Where the whole or any part of the area within the local limits of the jurisdiction of a Designated Court has been declared to be, or forms part of, any area which has been declared to be a disturbed area under any enactment for the time being in force making provision for the suppression of disorder and restoration and maintenance of public order, and the Central Government is of opinion that the situation prevailing in the State is not conducive to fair, impartial or speedy trial within the State, of offences under this Act or the rules made thereunder which such Designated Court is competent to try, the Central Government may, with the concurrence of the Chief Justice of India, specify, by notification in the official Gazette, in relation to such Court (hereafter in this sub-section referred to as the local Court) a Designated Court outside the State (hereinafter in this section referred to as the specified court), and thereupon, -
a. it shall not be competent at any time during the period of operation of such notification, for such local court to exercise any jurisdiction in respect of, or try, any offence under this Act or the rules made thereunder;
b. the jurisdiction which would have been, but for the issue of such notification, exercisable by such local court in respect of such offences committed during the period of operation of such notification shall be exercisable by the specified court; c. all cases relating to such offences pending immediately before the date of issue of such notification before such local court shall stand transferred on that date to the specified court; d. all cases taken cognizance of by, or transferred to, the specified court under Clause (b) or Clause (c) shall be dealt with and tried in accordance with this Act (whether during the period of operation of such notification or thereafter) as if such offences had been committed within the local limits of the jurisdiction of the specified court or, as the case may be, transferred for trial to it under sub-section (2).
Explanation 1.- A notification under this sub-section in relation to any local court shall cease to operate on the date on which the whole or, as the case may be, the aforementioned part of the area within the local limits of its jurisdiction, ceases to be a disturbed area.
Explanation 2.- For the purposes of this section, "Attorney- General" means the Attorney-General of India or, in his OWP Nos.395/2019 & 396/2019 Page 16 of 27 absence, the Solicitor-General of India or, in the absence of both, one of the Additional Solicitors-General of India.
Section 19. Appeal- (1) Notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order, not being an interlocutory order, of a Designated Court to the Supreme Court both on facts and on law.
(2) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Designated Court.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment; sentence or order appealed from:
Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days."
22. From the perusal of provisions of Act, it is evident that in terms of section 2 (c) there should be a designated court; which means a court constituted in terms of section 9 of Act; in terms of this section Central Govt. or State Govt. may constitute a designated court for such area or areas for such cases or groups of cases by way of notification in official gazette. In terms of section 9 (4), a Designated Court shall be presided over by a Judge to be appointed by the Central Government or, the State Government, with the concurrence of the Chief Justice of the High Court. In terms of section 9(3), the question of jurisdiction has to be referred to Central Govt. whose decision is to be final. Further, in terms of section 9(5) the Central Government or the State Government may also appoint, with the concurrence of the Chief Justice of the concerned High Court, Additional Judges to exercise jurisdiction in a Designated Court. In terms of section 9 (8) any Additional Judge OWP Nos.395/2019 & 396/2019 Page 17 of 27 or Additional Judges appointed in a Designated Court, the Judge of the Designated Court may, from time to time, by general or special order, in writing, provide for the distribution of business of the Designated Court among himself and the additional Judge or Additional Judges and also for the disposal of urgent business in the event of his absence or the absence of any Additional Judge.
23. In present case vide SRO 412- dated 19th October 1985 Government of Jammu and Kashmir constituted two designated courts, one for Kashmir Division and the other for Jammu Division. Thereafter vide SRO no.168 dated 01.05.1990 (SUPRA) in modification of all previous Notifications issued on the subject the designated court constituted for Kashmir division stood abolished and designated court constituted for hearing of the cases in Jammu Division was conferred jurisdiction throughout the State with headquarters at Jammu.
24. Challan in the present cases were presented before designated court at Jammu, after issuance of SRO 168, because there was no other designated court in Jammu and Kashmir at that time. It further appears that again State Govt. vide SRO no.70 dated 05.02.1991 in terms of section 9 of Act appointed Additional Judge Designated with the concurrence of the Chief Justice of the High Court; but there was specifically mention in SRO that the Additional Judge will hold its sitting at Srinagar for transacting such business as may be allotted/assigned to him by the Judge of the Designated Court.
25. In this way argument of counsel for petitioners that by creation of Additional Designated court at Srinagar, the jurisdiction of designated court at Jammu is ousted, is not tenable. Further, in OWP Nos.395/2019 & 396/2019 Page 18 of 27 terms of section 9 (8) of Act, additional designated court has to perform the work which was to be assigned by designated court and also in terms of SRO 70, wherein it has been specifically mentioned that additional designated court at Srinagar shall deal with business, which shall be allotted by Designated court at Jammu.
26. Counsel for petitioners have also relied upon another SRO No.128 dated 22.04.2004 issued by State Govt., which reads as under:-
"SRO 128- In exercise of powers vested under sub section (4) of section 9 of Terrorist and Disruptive Activity (prevention Act) 1987 (now repealed) and in modification of SRO notification of SRO notification 374 dated 3.9.2001, the Government hereby direct that 3RD Additional Sessions Judge shall function as Sessions Judge TADA,Jammu (Designated court ) for the Jammu Division for the purpose of said Act . By order of the Government of Jammu and Kashmir.
Sd / A.H Kochak / Commr./ secretary to Govt .
Law Department."
27. As per counsel for petitioners, in terms of this SRO, the court of 3rd Additional Sessions Judge Jammu, has been empowered to deal with cases under TADA for Jammu Division and Additional Designated Court already constituted in terms of SRO No.70 dated 05.02.1991, shall now have power to try the cases for Srinagar Divisions only. This argument is also not tenable, because in terms of SRO 128 (SUPRA), the 3rd Additional Session Judge Jammu has been asked to function as Designated Court which has already been established in terms of section 9 of Act; as per scheme of Act there can be only one designated court and all other additional OWP Nos.395/2019 & 396/2019 Page 19 of 27 court/s have to conduct the business which shall be allotted to them by Designated Court in terms of section 9(8) of Act.
28. On bare perusal of SRO 128, it is evident that, it does not say that Additional Court already created shall exclusively deal with cases, the occurrence of which had already been taken place at Srinagar or cases pending before Designated court shall stand transferred to Additional Court at Srinagar.
29. Further argument of counsel for petitioners that there is no Notification dated 15.05.1998 available on record nor any such Notification could have been issued under Section 11(2) of the TADA, by virtue of which already notification of Govt. of India in Ministry of Home affairs no.551 (E) dated 17.6.1995, by virtue of which these cases along with other cases were transferred to Designated Court Ajmer on the instance of Attorney General with concurrence of Chief Justice of India was withdrawn, is misdirected and not tenable. Because along with objection there is Notification issued by Ministry of Home Affairs, thereby withdrawing/revoking the said notification dated 17.6.1995.
30. Another argument that in terms of section 11 (1) of Act every offence punishable under any provision of this Act or any rule made there under shall be triable only by the Designated Court within whose local jurisdiction it was committed, and as occurrences in present cases have taken place at Srinagar so, only additional Designated court at Srinagar to conduct trial. This argument is completely devoid of any merit, because as already discussed that State Govt. vide SRO no.168 dated OWP Nos.395/2019 & 396/2019 Page 20 of 27 01.05.1990 designated court constituted for Kashmir division was abolished and designated court constituted for hearing of the cases under TADA in Jammu Division was conferred with jurisdiction throughout the State with headquarters at Jammu; thereafter no separate Designated court for Srinagar Division was created and only vide SRO no.70 dated 05.02.1991 in terms of section 9 of Act, Govt. posted Additional Judge in Designated Court but he was asked to hold sitting at Srinagar for transacting the business as may be allotted/assigned to him by the Judge of the Designated Court i.e. Designated court at Jammu for whole of State.
31. Further, with regard to transfer of case from one designated court to another within State or outside State is prerogative of Central Govt. and detail procedure has been given in section 11(2) of Act; which provides that having regard to the exigencies of the situation prevailing in a State, if the Central Government is of the opinion that, (a) the situation prevailing in such State is not conducive to a fair, impartial or speedy trial, or (b) it is not likely to be feasible without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor and the Judge of the Designated Court or any of them, or (c) it is not otherwise in the interests of justice, It may, with the concurrence of the Chief Justice of India (such occurrence to be obtained on a motion moved in that behalf by the Attorney-General), transfer any case pending before a Designated Court in that State to any other Designated Court within that State or in any other State. In this way, there is complete implied bar in the Act to entertain any application for transfer of case.
OWP Nos.395/2019 & 396/2019 Page 21 of 2732. Counsel for respondent during course of argument has argued vigorously that High court has no power to entertain writ petition or initiate any proceeding against any order passed by designated court in view of section 19 of Act. To this, counsel for petitioners have stated that, it amounts to violation of statutory provisions of section 526 of Cr.P.C., which provides that High Court has power to transfer criminal case pending before one Sessions court to another Sessions court and it is unconstitutional provision of Act. This argument does not hold well, because TADA is a special enactment and the statue has to be strictly followed.
33. In Usmanbhai Dawoodbhai Menon & Ors. Etc. vs State of Gujarat, reported in 1988 AIR 922, it is held as under:-
"The manifest intention of the legislature is to take away the jurisdiction and power of the High Court under the Code with respect to offences under the Act. No other construction is possible. The expression „High Court‟ is defined ins. 2(1)(e) but there are no functions and duties vested in the High Court. The only mention of the High Court is in s. 20(6) which provides that ss. 366-371 and s. 392 of the Code shall apply in relation to a case involving an offence triable by a Designated Court, subject to the modifications that the references to „Court of Session‟ and „High Court‟ shall be construed as references to „Designated Court‟ and „Supreme Court‟ respectively. Sec. 19(1) of the Act provides for a direct appeal, as of right, to the Supreme Court from any judgment or order of the Designated Court, not being an interlocutory order. There is thus a total departure from different classes of Criminal Courts enumerated in s. 6 of the Code and a new hierarchy of Courts is sought to be established by providing for a direct appeal to the Supreme Court from any judgment or order of a Designated Court, not being an interlocutory order, and substituting the Supreme Court for the High Court by s. 20(6) in the matter of confirmation of a death sentence passed by a Designated Court."OWP Nos.395/2019 & 396/2019 Page 22 of 27
34. Further, in Kartar Singh v State of Punjab reported in 1994 SCC (3) 569, Apex court has held as under:-
"Section 19 of 1987 Act
291. This section provides that notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order not being an interlocutory order of a Designated Court to the Supreme Court both on facts and on law. Sub-section (2) of that section makes it clear that except as contemplated under sub-section (1) of that section, no appeal or revision shall lie to any other court.
292. The above provision is attacked solely on the ground that the conferment of the right of appeal and further appeal to the Supreme Court on grant of leave under Article 136 of the Constitution, both at the remedial and procedural level, is taken away by the statutory compulsion under the guise of speedy trial even in respect of a conviction under the provisions of ordinary criminal law even though the charge for the offence under the TADA Act has ended in acquittal, and the taking away of the right of 58 AIR 1988 P&H 95 : (1988) 93 Punj LR 189 : 1988 Cri LJ traditional appeal or revision will cause great hardship and make one to suffer in incurring heavy expenditure especially those who are far away from the situs of the Supreme Court.
293. The above argument is vehemently resisted by the learned Additional Solicitor General. He extols the specialised procedure of appeal directly to the Supreme Court both on facts and on law as a matter of right, without approaching the traditional appellate and revisional courts and submits that this appeal procedure is a very significant advantage to the person tried by the Designated Court and the professed object of it is in conformity with the doctrine of 'speedy trial'. He adds that such a procedure of adjudication of appeals is cheaper, faster, procedurally simpler and less formal than other traditional procedure. The Additional Solicitor General relying on the dictum laid down in (1) Syed Qasim Razvi v. State Of Hyderabad and (2) V.C. Shukla v. State (Delhi Admn.)102 submitted that the appeal procedure prescribed by the TADA Act cannot be said to be prejudicial or less advantageous to the accused merely on the ground that the right of appeal provided under the Code of Criminal Procedure is taken away.OWP Nos.395/2019 & 396/2019 Page 23 of 27
294. Leave apart the question whether this provision entails or excludes a great deal of delay than the usual course of disposal of appeals, the indisputable reality is that the Supreme Court is beyond the reach of an average person considering the fact of distance, expense etc. One could understand the right of appeal directly to the Supreme Court under Section 19 of the Act against any judgment pronounced, sentence passed or order made by a Designated Court solely under the provisions of TADA or under both the provisions of TADA and the ordinary criminal law. But it would be quite unreasonable to compel a person to prefer an appeal only to the Supreme Court even in a case where in the trial was for charges under both the provisions of TADA and the ordinary or general criminal law and the trial has ended in acquittal of the offences punishable under the TADA Act but in conviction of the offences under the penal provisions of general law alone.
295. We see no logic or convincing reasoning in providing no choice but forcing a person aggrieved by the judgment, sentence or order of the Designated Court passed only under the ordinary criminal law to prefer an appeal to the Supreme Court directly in which case the aggrieved person has to deny himself firstly, the right of appeal to the High Court and secondly, the benefit of approaching the Supreme Court under Article 136 of the Constitution. If every such person aggrieved by the judgment and order of the Designated Court passed under any criminal law other than the TADA Act has to approach the Supreme Court from far-flung areas, many of the persons suffering from financial constraints may not even think of preferring an appeal at all but to languish in jail indefinitely on that count. The statutory compulsion, in such a situation as pointed out by the counsel, 101 1953 SCR 589: AIR 1953 SC 156: 1953 Cri Li 862 102 1980 Supp SCC 249: 1980 SCC (Cri) 849: AIR 1980 SC 1382 would not only deny fair play and justice to such person but also amount to destruction of the professed object of criminal justice system in the absence of any other valid reason for an abnormal procedure.
296. This predicament and practical difficulty an aggrieved person has to suffer can be avoided if a person who is tried by the Designated Court for offences under the TADA Act but convicted only under other penal provisions and is acquitted of the offences under the provisions of TADA, Is given the right of preferring an appeal before the next appellate court as provided under the Code of Criminal Procedure and if the State prefers an appeal against the acquittal of the offence under the provisions of TADA then it may approach the Supreme Court OWP Nos.395/2019 & 396/2019 Page 24 of 27 for withdrawal of the appeal or revision, as the case may be, preferred by such person to the Supreme Court so that both the cases may be heard together.
297. We have adverted to the practical difficulties faced by the aggrieved persons under the appeal provisions and how the same can be removed so that Parliament may take note of them and devise a suitable mode of redress by making the necessary amendments in the appeal provisions. This does not, however, mean that the existing appeal provisions are constitutionally invalid.
Further, at para no.359 it is observed as under
Though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well established principles. The legislative history and the object of TADA Act indicate that the special Act has been enacted to meet challenges arising out of terrorism and disruption. Special provisions are enacted in the Act with regard to the grant of bail and appeals arising from any judgment, sentence or order (not being an interlocutory order) of a Designated Court, etc. The overriding effect of the provisions of the Act (i.e. Section 25 of TADA Act) and the Rules made there under and the non obstante clause in Section 20(7) reading, Notwithstanding anything contained in the Code..... clearly postulate that in granting of bail, the special provisions alone should be made applicable. If any party is aggrieved by the order, the only remedy under the Act is to approach the Supreme Court by way of an appeal. If the High Courts entertain bail applications invoking their extraordinary jurisdiction under Article 226 and pass orders, then the very scheme and object of the Act and the intendment of the Parliament would be completely defeated and frustrated. But at the same time it cannot be said that the High Courts have no jurisdiction. Therefore, we totally agree with the view taken by this Court in Abdul Hamid Haji Mohammed that if the High Court is inclined to entertain any application under Article 226, that power should be exercised most sparingly and only in rare and appropriate cases in extreme circumstances. What those rare cases are and what would be the circumstances that would justify the entertaining of applications under Article 226 cannot be put in strait-jacket. However, we would like to emphasize and OWP Nos.395/2019 & 396/2019 Page 25 of 27 reemphasize that the judicial discipline and comity of courts require that the High Courts should refrain from exercising their jurisdiction in entertaining bail applications in respect of an accused indicated under the special Act since this Court has jurisdiction to interfere and correct the order of the High Courts under Article 136 of the Constitution.
35. In view of above law and statutory provisions provided in TADA Act, petition under Article 226 of the Constitution of India read with section 103 of Constitution of Jammu and Kashmir against any order passed by the Designated Court under the TADA Act is not required to be entertained by this Court; it cannot be disputed that this Court has jurisdiction under Article 226 to protect the fundamental rights or legal rights, but when there is an alternative and efficacious remedy available to that person, there is a self- imposed restriction to the effect that this Court may not interfere and direct a party to resort to alternative remedy. The TADA Act provides for a complete machinery to challenge an order passed by the Designated Court and the remedy provided by that Act must be followed.
36. In case High Court entertains any petition against order of Designated Court established under TADA, then very scheme and object of the Act and intendment of parliament would completely be defeated and frustrated.
37. Last argument of counsel for petitioners is that through the medium of instant petitions, they have not sought transfer of cases from Jammu Designated Court to Additional Court at Srinagar, but in fact they have sought relief of assignment or allocation of cases to additional designated court at Srinagar, so impugned order is bad.
OWP Nos.395/2019 & 396/2019 Page 26 of 27This argument is also not tenable, because courts are not required to see nomenclature of petitions but has to see intention of parties in filing the petitions. From bare perusal of contents of petitions and relief sought therein, one can definitely come to conclusion that petitioners have sought transfer of their cases from designated court Jammu to additional court at Srinagar, which is not permissible under law.
38. In view of what has been discussed above, these petitions are dismissed. Interim stay, if any, is vacated. However, petitioners are at liberty to approach appropriate forum in accordance with law.
39. Copy of the judgment be placed on the files of both petitions.
( Sanjay Kumar Gupta )
Jammu. Judge
26.04.2019
vijay
NARINDER KUMAR SHARMA
2019.04.26 12:25
I attest to the accuracy and
integrity of this document
OWP Nos.395/2019 & 396/2019 Page 27 of 27