Calcutta High Court
Md. Rashid Khan vs State Of West Bengal And Ors. on 13 April, 1994
Equivalent citations: 1994CRILJ2699
ORDER Shyamal Kumar Sen, J.
1. In the instant writ petition the petitioner has challenged the validity and propriety of the cognizance taken by the Designated Court constituted Under Section 9 of the Terrorist and Disruptive Activities (Prevention) Act 1987 (hereinafter referred to as the TADA Act) presided over by the learned Judge 12th Bench of the City Civil Court, Calcutta of the case arising out of Section H (Bowbazar P.S.) Case No. 84 dated March 17, 1993. The petitioner has also prayed for declaration that the said cognizance taken as also all subsequent proceedings relating thereto to be illegal, void and inoperative in law. In the instant writ petition the provisions of the said TADA Act have also been challenged as ultra vires the Constitution of India. Since, however, the vires of the said statute which has been challenged in the instant writ petition it was also the subject matter of a proceeding pending in the Supreme Court of India, in the case of Kartar Singh v. State of Punjab and Kripa Shankar Rai v. The State of U.P. the petitioner, although he has not given up the said question has made his submissions on other questions.
2. The brief facts leading to this instant writ petition inter alia are that on the evening of March 16, 1993 an explosion occurred at or near premises No. 267, B.B. Ganguly Street, Calcutta. As a result of the explosion several persons died, others were injured and premises No. 267, B.B. Ganguly Street and some buildings adjoining it collapsed and / or were badly damaged.
3. On March 17, 1993 one B.K. Chattopadhyay, a Sub-Inspector of Police, attached to the Bowbazar Police Station, lodged a complaint regarding the said incident at the said Police Station. The said complaint was treated as a First Information Report and on that basis a case was registered in the said Bowbazar Police Station Under Sections 120B/436/326/307 of the Indian Penal Code and Sections 3 and 6 of the Explosives Substances Act. The said case was numbered as Section H (Bowbazar Police Station) Case No. 84 dated March 17, 1993. Copy of the said complaint has been filed and marked Annexure 'A' to the writ petition. The complaint records that on hearing a loud sound from Bipin Behari Ganguli Street, the complainant proceeded to the place of occurrence of explosion, observed the damage caused by it and he arranged for removal of the injured persons to hospitals. He also collected materials for examination and examined a good number of persons. On the basis of such enquiry, the complainant arrived at the following conclusion:
...considering the above facts and circumstances, I do hereby lodge complaint that some unknown persons pursuant to their criminal conspiracy caused explosion at the aforesaid collapse building by means of explosive materials causing death of 40 persons, attempted to murder and grievious hurt to several persons for causing injuries at the abvoe noted date, time and place.
4. On March 17, 1993 the respondent No. 5 who was the Investigating Officer appointed for the said case started his investigation. The said investigation is governed by Chapter XII of the Code of Criminal Procedure. It has been submitted that in spite of the fact that the petitioner had not been named in the First Information Report and there was not an iota of evidence to connect him with the said incident, the petitioner was wrognfully arrested by the Police in connection with the said case on March 17, 1993. On March 18, 1993, he was produced before the Learned Chief Metropolitan Magistrate, Calcutta. The petitioner's prayer for being relesed on bail was rejected by the Learned Chief Metropolitan Magistrate, and he passed an order remanding the petitioner to Police Custody. Thereafter his detention in police custody was prolongled for some time and ultimately he was remanded to jail custody pending completion of the investigation. The petitioner carved leave to refer to the remand orders passed from time to time, at the time of hearing. It has been alleged that since March 17, 1993 and till the date of the instant writ petition i.e. for a period of about 3 months and 22 days, the petitioner has been continuously kept in custody and has been deprived of his liberty. The petitioner is still in jail custody.
5. It has also been submitted on behalf of the writ petitioner that even after the investigation of the case had been in progress for nearly 7 weeks, no material or evidence had been collected by the investigating authorities which implicated the petitioner with the said incident or with the offences alleged in the said First Information Report dated 17th March, 1993. It then must have become evident to the police authorities that the materials collected in course of investigation were wholly insufficient to sustain a conviction against the petitioner under the ordinary law and that a prosecution of the petitioner with regard to the offences under the Indian Penal Code and the Indian Explosive Substances Act mentioned in the said First Information Report were bound to fail, if tried in the ordinary criminal course. It has been further submitted that in the circumstances, the police authorities with ulterior and oblique motive and in abuse of their powers decided to try and rope in the petitioner said prolong his detention by invoking the provisionals of the Terrorist and Dispruptive Activities (Prevention) Act, 1987.
6. On May 3, 1993 an application was made by the respondent No. 5, Investigating Officer, before the Learned Chief Metropolitan Magistrate, Calcutta for addition of offence Under Sections 3 and 4 of the TADA Act in the First Information Reprot dated March 17, 1993. About one week before the application was moved before the Learned Chief Metropolitan Magistrate, State Government in exercise of powers conferred by Section 9 of the TADA Act had issued notifications dated April 26th 1993 purporting to constitute la designated Court for Calcutta appointing Sri S.N. Bhattacharjee, Judge, 12th Court, City Civil Court, Calcutta as the Presiding Judge of the said designated Court. Copies of the said notifications have been filed and collectively marked Annexure 'C' to the writ petition.
7. It has been submitted on behalf of the petitioner that the said order dated May 3, 1993 passed by the Learned Metropolitan Magistrate adding offences Under Sections 3 and 4 of the TADA Act to the said First information Report dated March 17, 1993 was without jurisdiction and bad in law. It has been further submitted that cognizance and actions relating to the offences under the TADA Act can be taken only by the designated Court constituted under the said Act, and by no other Court. The Court of the learned Chief Metropolitan Magistrate was not a designated Court notified under the said Act, As such, the Learned Chief Metropolitan Magistrate had no jurisdiction to add sections 3 and 4 of the said TADA Act the said First Information Report as has been purported to be done by him by his order dated May 3, 1993. It has also been submitted that the said order dated May 3, 1993 is bad in law, because it was passed mechanically and without application of mind.
8. It has been submitted on behalf of the petitioner that after the petitioner came to know of the said order dated May 3, 1993, an application was made by him before the Learned Chief Metropolitan Magistrate for setting aside of the said order and for other reliefs. By an order dated June 9, 1993, the Learned Chief Metropolitan Magistrate rejected the said application holding that as a designated Court had been established, he was not competent to deal with the said application made by the petitioner touching the provisions of the TADA Act. By the said order the Learned Chief Metropolitan Magistrate also directed that all records relating to the case be sent to the designated Court. Copies of the application and of the said order dated June 9, 1993 are filed along with this writ petition and marked 'D' collectively. It has also been alleged that even after the said order, the learned Chief Metropolitan Magistrate continued to deal with the case and has passed remand order thereafter.
9. Sometime in early June 1993, the police authorities completed investigation of the said Case No. 84 of Bowbazar Police Station dated March 17, 1993 and upon completion of the investigation a police report was prepared by them embodying the materials collected by them in course of investigation. The offences mentioned in the said report are offences Under Sections 3 and 4 of the TADA Act, Under Section 302 of the Indian Penal Code and certain other offences under Penal Code and the Explosive Substances Act, which have been mentioned in the original First Information Report. On June 14, 1993 the police authorities submitted the said police report and / or chargesheet to the designated Court constituted by the notification dated 26th April, 1993. Upon receipt of the said police report, the designated Court took cognizance of the offences mentioned in the said police report including the offences Under Sections 3 and 4 of the TADA Act by an order dated June 14, 1993. The said order inter alia is set out hereinafter:-
Received charge-sheet against the accused No. 1 Rashid Khan Under Sections. 120B/436/326/ 302, I.P.C. 3 and 5 of the E.S. Act and 3 and 4 of TADA Act. Ld. P.P. S. Ghosh prays of taking cognizance taken.
10. In June 1993, an oral request was made to the Designated Court on behalf of the petitioner that a copy of the Police report on the basis of which cognizance had been taken should be furnished to the petitioner or his Learned Advocate, but the Designate Court disallowed such prayer, observing that it would be supplied only after process had been served on all the accused persons, some of whom were absconding. Subsequently on a further request made on behalf of the petitioner, the Designated Court was pleased to grant liberty to the petitioner's Learned Advocate to take inspection of the said police report and / or charge-sheet. Inspection of the police report was taken by the Learned Lawyer of the petitioner and he informed the petitioner of the contents of the said report. It has been submitted that the petitioner applied for a certified copy of the Police Report but he did not receive the same.
11. It is the contention of the petitioner that the initiation and continuation of the said Criminal Proceedings against the petitioner before the Designated Court under the TADA Act and the order dated June 14, 1993 by which the Designated Court took cognizance of offences Under Sections 3 and 4 of the TADA Act are illegal and without jurisdiction for, inter alia, the reason set out hereinafter:
12. It has been submitted on behalf of the petitioner that in the present case no sanction was given by the Commissioner of Police i.e. the respondent No. 3 or by the respondent No. 4 the Inspector General of Police before the Designated Court took congnizance of offences Under Sections 3 and 4 of the TADA Act on June 14, 1993. The order sheet of the Designated Court does not mention that any previous sanction had been obtained as required by Section 20A(2) of the TADA Act, and nothing to this effect is also stated in the said order dated June 14, 1993 by which the Designated Court took cognizance of the said offences under the TADA Act. The requirement of previous sanction contained in Section 20A(2) of the TADA Act is mandatory. It has been further submitted on behalf of the petitioner that such previous sanction not having been obtained, the order of the Designated Court dated June 14, 1993 taking cognizance of offences Under Sections 3 and 4 of the TADA Act against the petitioner and the other accused persons, is void ab initio, without jurisdiction, illegal and invalid.
13. It is the further contention of the writ petitioner that the impugned order dated June 14, 1993 was passed casually and mechanically and without application of mind. It is a non-speaking order and does not state any reason for invoking and taking cognizance of the said offences under the TADA Act. It has been laid down by the Courts according to the Learned Advocate for the petitioner that in deciding whether a Court should take cognizance of an offence under the TADA Act and / or before it decides to invoke the provisions of the TADA Act, the Court must take into consideration and apply its mind to certain important matters and the order taking cognizance by invoking the provisions of the TADA Act must show that such matters were duly considered. It has been submitted by the Learned Advocate that the TADA Act can gravely imperil an accused person and deprive him of many of the important safeguards that would be available to him in a trial under the ordinary law in the ordinary criminal Courts. In view of the serious consequences which could visit a person accused of an offence under the TADA Act, consideration of relevant matters is all the more necessary before cognizance of an offence under that Act is taken.
14. It has further been alleged in the writ petition that the order dated June 14, 1993 shows that relevant considerations were not taken into account by the Designated Court before taking cognizance of offences Under Sections 3 and 4 of the TADA Act. The Learned Advocate for the petitioner submitted that the said order suffers from total non-application of mind, and it appears to have been passed mechanically as a matter of routine. It has been contended by Mr. Dipankar Ghose that the order is couched in cryptic language.
15. It has further been submitted by the Learned Advocate for the petitioner that no reasons are stated in the order as to why in the opinion of the Designated Court it was a fit case for taking the extraordinary step of invoking the provisions of the TADA Act or as to why the case could not be proceeded with against the accused in the ordinary criminal courts. It has also been submitted that the said order taking cognizance of the offences Under Sections 3 and 4 of the TADA Act is illegal, void and without jurisdiction and the same should be quashed.
16. It has also been alleged that there are no materials in the Police Report submitted to the Designated Court on June 14, 1993 which can lead to conviction of the writ petitioner for the offences under the TADA Act. It has also been alleged that there is no material collected by the Investigating Authorities and embodied in the Police Report submitted to the Designated Court which incriminates the petitioner or which establishes any of the offences Under Sections 3 and 4 of the TADA Act. It is also the contention of the Learned Advocate for the petitioner that only when the ordinary law enforcement machinery of the State fails to deal with the offences the extra-ordinary provisions of the TADA Act can be enforced. In other words, if the situation is such that the ordinary law enforcing machinery of the State is unable to deal with the same the provisions of the TADA Act should be taken recourse to. It has also been submitted that the Designated Court is also required to record its satisfaction as to whether the offences with which the accused has been charged could have been dealt with by the ordinary Criminal Courts. It has been alleged in the writ petition that in the present case there is nothing on record to show that this aspect was at all considered by the Designated Court, when purporting to take cognizance of the said offences under the TADA Act. It was also alleged that there was no material before the said Court which would go to show that the ordinary law enforcement machinery of the State Government had broken down and was inadequate to deal with the offences under the TADA Act and hence it was necessary to resort to and invoke the Special drastic draconian and onerous provisions of the TADA Act. It has been submitted that there is nothing in the impugned order which would show that the Designated Court before it passed the said order considered whether the offences said t6 have been committed could not be tried by the ordinary Criminal Court in accordance with the ordinary Criminal Law, and no satisfaction of the Designated Court on this aspect has been recorded in the said order purporting to take cognizance of the said offence under TADA Act.
17. It has been alleged in the present case that there is nothing on record to show that this aspect of the case was at all considered by the Designated Court when purporting to take cognizance of the said offences under the TADA Act. It is also the case of the petitioner that there is no material before the said Court which would go to show that the ordinary law enforcing machinery of the State Government has been broken down and was inadequate to deal with the offences under the TADA Act, hence it was necessary to resort to and invoke the special, drastic, draconian, onerous provisions of the TADA Act. It is the further case of the petitioner that no such extraordinary situation existed or does exist in West Bengal so as to apply the drastic provisions of the Act. It is the further case of the petitioner that there is nothing in the impunged order which would show that the Designated Court before passing the said order considered whether the offences said to have been committed could not be tried by the ordinary criminal Court in accordance with the ordinary criminal laws and no satifaction of the Designated Court on this aspect has been recorded by it in the said impugned order purporting to take cognizance of the said offences under the TADA Act. It has been also alleged that the precondition noted above i.e. it must be shown that the law enforcing agency has broken down before resort can be had to the TADA Act not having been fulfilled in the present case the applicability of the provisions of the said Act is without jurisdiction and is illegal. In other words, it has been alleged that the jurisdictional fact which would give the Designated Court jurisdiction to try the petitioner for offences under the Special Act does not exist and therefore the initiation of the proceeding of trial of the offences under the TADA Act is totally void and illegal in the factual matrix of the instant case.
18. The petitioner has also challenged the propriety and the manner in which the cognizance taken Under Sections 3 and 4 of the TADA Act by the Designated Court. It is the contention of the petitioner that the Designated Court did not apply its mind properly and did not record any reason for taking cognizance Under Sections 3 and 4 of the TADA Act. The Designated Court while taking cognizance merely passed the order mechanically and without application of mind. The other contention of the writ petitioner is that it does not appear from the record that although sanction by the Commissioner of Police is a condition precedent to the taking of cognizance by the Designated Court there is nothing to show that while taking cognizance the Designated Court took into account the sanction granted by the Commissioner of Police.
19. It has been strenuously argued by Mr. Dipankar Ghosh, Learned Advocate for the petitioner that there is no ingredient of offence Under Sections 3 and 4 of the TADA Act from the materials discussed or from the Police Report and as such the sanction order issued by the Commissioner of Police and also the cognizance taken by the Designated Court are illegal and without jurisdiction.
20. In support of the several contentions of the writ petitioner several decisions have been cited. It has been submitted by Mr. Dipankar Ghosh, Learned Advocate for the petitioner that it is well settled that since the provisions contained in the TADA Act are very drastic they will only be resorted to when ordinary law enforcing machinery fails. It has also been submitted on behalf of the petitioner that no sanction order existed when the Designated Court took cognizance of offences Under Sections 3 and 4 of the TADA Act by its order dated June 14,1993.
21. It is also the case of the petitioner that no sanction order was produced before the Designated Court which however was denied in the Affidavit of Sujit Kumar Sanyal affirmed on July 30, 1993. It may be noted in this connection that a supplementary affidavit was also filed on behalf of the petitioner. The said supplementary affidavit was affirmed by one Ashok Kumar Ghosh stated to be the registered clerk of Mrs. Anuradha Banerjee, Advocate who is appearing on behalf of the accused persons Md. Rashid Khan and Abdul Aziz in TADA Case No. I of 1993 which is pending before the Learned Designated Court, Calcutta. She is also appearing on behalf of Rashid Khan in the instant writ application. It has been mentioned in the said supplementary affidavit that on or about July 2, 1993 the said Mrs. Anuradha Banerjee Advocate with the permission of the Learned Designated Court inspected the said records of the case and upon inspection she took down notes in her own hand as to the contents of the said records including the charge-sheet dated June 14, 1993 as submitted by the Investigating Officer in the aforesaid case. In the said supplementary affidavit it has also been mentioned that the said Mrs. Anuradha Banerjee upon inspection did not find any order of sanction in the records of the said case. She also noted certain other facts while inspecting the said records.
22. The main contention of the petitioner challenging the validity of the order dated 14th June, 1993, of the Designated Court taking cognizance of the offences Under Sections 3 and 4 of the TADA Act appeared to be as follows:-
That there was no sanction order in existence when the Designated Court took cognizance of offences Under Sections 3 and 4 of the TADA Act by its order dated 14-6-1993.
That no sanction order was produced before Designated Court at the time of taking cognizance, and that the case to that effect made in the affidavit-in-opposition affirmed by Sujit Kumar Sanyal is false.
In any event, the sanction dated 11-6-1993 relied upon in the affidavit-in-opposition is invalid.
That the order dated 14-6-1993 by which the Designated Court took cognizance of the offence Under Sections 3 and 4 of the TADA Act is bad in law.
That it has not been shown that circumstances justified resort to the drastic provisions of the TADA Act.
That the Police Report does not disclose the ingredients of an offence Under Section 3 of the TADA Act or an offence Under Section 4 of that Act.
23. There cannot be any dispute that Under Section 20A(2) of the TADA Act, 1987 previous sanction of the Inspector General of Police or the Commissioner of Police is a condition precedent to the exercise of power of the Designated Court to take cognizance of an offence under the said Act.
24. It does not appear from record that the said sanction order was filed in the Designated Court at the time when the order of cognizance was passed on 14th June, 1993, but the order of Designated Court does not disclose that any sanction had been obtained.
25. An affidavit was affirmed by one Sujit Kumar Sanyal on 30th July, 1993. Being the affidavit-in-opposition filed on behalf of the State, the aforesaid allegations of the petitioner have been dealt with by the said Sujit Kumar Sanyal in his said affidavit in paragraphs 10, 12, 13, 20 and 22 which are to the following effect.
10. I deny the correctness of the statements made in paragraph 11 of the said application. I say that the cognizance under the Sections 3 and 4 of the said Act of 1987 along with other offences were duly and validly taken only by the Designated Court on June 14, 1993. I say that on June 14, 1993 before the Ld. Designated Court had passed the order taking cognizance I had placed all the papers including the two sanctions and the statements recorded Under Section 161 of the Code before the Court. I say that it was well within the competence of the Learned Chief Metropolitan Magistrate to be informed that investigation Under Sections 3 and 4, TADA was being carried on and to correct the records by adding Sections 3 and 4 of the said Act. I further say that after the Learned Designated Court took cognizance on June 14, 1993 any irregularity or illegality in investigation became irrelevant. Save as aforesaid and save what are matters of record and all other allegations contrary thereto and / or inconsistent therewith are denied and disputed each and singular as set out herein and denied in seriatim. It is emphatically denied that the order of May 3, 1993 is without jurisdiction and patently bad in law, or that the Learned Chief Metropolitan Magistrate had no jurisdiction to add Sections 3 and 4 of the said Act as alleged or at all. It is particularly denied that the order of May 3, 1993 is bad in law or it was passed mechanically, without application of mind or that it did not take into account relevant matters which were required to be considered or that the said order is not a speaking order and does not state reasons for adding sections 3 and 4 of the said Act of 1987.
12. Except what will appear from the records each and every statement made in paragraphs 13, 14, 15 and 16 of the said application are denied, I say that in the complaint the commission of the offences Under Sections 120B, 436, 326 307 and 302 of the Indian Penal Code and Sections 3 and 5 of the Explosives Substances Act had been mentioned. I further say that it was only in course of the investigation that materials indicating commission of offences Under Sections 3 and 4 of the said Act of 1987 had transpired. I further say that after the cognizance had been taken on the basis of the charge sheet and the materials collected after investigation being the materials in the case diary which include two sanctions and the statements recorded Under Section 161 of the Code and the documents seized and various seizure lists the Learned Designated Court issued warrant of arrest against the absconding accused persons. I also say that the petitioner so far has not applied for supply of the papers relevant for his evidence. I say that it is the practice that the copies are directed to be supplied 6nly when all the accused are before the Court and their presence secured. In any event the Designated Court has passed an order directing supply of copies of documents mentioned in section on 30 August, 1993 which will duly be done.
13. Except what will appear from the records I do not admit of the correctness of any statement. I deny that initiation or continuance of the proceedings or taking cognizance of the offence by Designated Court is illegal or without jurisdiction with regard to the statement made in sub-paragraph (b). I say that the sanction under the said TADA, 1993 was granted on 11 June 1993 being No. 1 by the Commissioner of Police, Calcutta and under the Explosives Substances Act on that day being 4509-P by the Govt. of West Bengal. I further say that the charge sheet that was filed on 14-61993 has specifically mentioned that such sanction had already been obtained. It is categorically denied that the initiation and continuation of the said criminal proceedings against the petitioner and before the Designated Court under the TADA and said order dated June 14, 1993 is illegal. It is not necessary to mention in the order sheet that sanction was granted. It is emphatically denied that no sanction was given by the respondent Nos. 3 and 4 or that the law enjoins a duty upon the Designated Court to record by an order the fact of having received such sanction. I deny that the conditions precedent mentioned in sub-paragraph II(a) must necessarily exist for application of TADA. The Act applies throughout India and on fulfilment of conditions mentioned in the sanction the law automatically attracted to the given set of facts. It is particularly denied that the order dated June 14, 1993 was passed casually and mechanically and without application of mind or that relevant considerations were not taken into account by the Designated Court before purporting to take cognizance or that no materials were contained in the Police Report submitted to the Designated Court on June 14, 1993 which can lead to conviction of the petitioner of the said offences or that confessional statements of accused Nos. 3 and 6 are not sufficient or that the order of June 14, 1993 is perverse as alleged or at all. Even without the confessions there are sufficient materials to attract the provisions of Sections 3 and 4 of TADA. It is categorically denied that there is nothing on record or that there are no materials before the said Court which would go to show that the ordinary law enforcement machinary of the State Government had broken down and was inadequate to deal with the offences under the TADA and hence it was necessary to resort to and invoke of the special provisions of the TADA or that no such extra ordinary situation existed or does not exist in Calcutta or West Bengal or that it is requried by the Designated Court to specifically record its satisfaction that the offences said to have been committed could not be tried by the ordinary criminal law or that in the absence of such recording the applicability of the provisions of the said Act is without jurisdiction, illegal, void as alleged or at all. It is also denied that the Designated Court while taking cognizance was required to specify the Sub-sections of Section 3 or 4 whereof such cognizance was being taken or that the order taking cognizance is vague and violative of the principles of natural justice as alleged or at all. I say that only when the charge is framed it is required to be told in the charge or the accused precise nature of the offences alleged to have been commited by the accused. Presently only cognizance has been taken by the Designated Court on the police report and no question of notice of a precise case is necessary to be given to the accused. In a criminal proceeding police collects evidence and reports its result Under Sections 169 or 170 of the Code and the Court applies its mind and take cognizance Under Section 190 of the Code. Process may thereafter be issued and later charge may be framed. The trial begins with the framing of the charge and ends with recording a judgment. At each stage considerations are different and quantum of material and the nature of scrutiny of those materials are done for various different objects.
20. With regard to the statements made in paragraph 3 of the affidavit I say that the fact that sanctions were accorded were mentioned in the charge sheet itself. The order of sanction together with statement recorded Under Section 161, Cr.P.C. seizure list and so on were all produced before the Designated Court along with the chargesheet and the Court after examining them returned to the learned Public Prosecutor who handed over the same to the deponent for preparation of copies. What notes the learned advocate took is no concern of the deponent. Nothing was contemporaneously pointed out by the learned Court.
22. With regard to the statements made in sub-paragraph 8(a), (b) and g(c) I have already stated that those documents were produced before the learned Judge, Designated Court who was pleased to return those documents on a clear understanding that copies would be prepared and supplied.
It may be mentioned that the Designated Court has no infrastructural facilities for preparing copies. This learned Court also hears cases under Narcotic Drugs and Psy-chotropic Substances Act. There are nearly 150 such cases pending. Copies of the police papers have to be made by the police authorities and provided to the court.
I deny the correctness of the statement that there are certain other anomalies.
26. It is significant that the deponent the said Sujit Kumar Sanyal who affirmed the said affidavit has verified the said statement contained in the said paragraphs as being true to his knowledge. He has claimed that he was an Investigation Officer of the case and at the material time he was an Assistant Commissioner, Narcotic Offences cell. There is nothing on record to show that he had any personal knowledge in the matter.
27. It is significant to mention that the FIR dated 17th March, 1993 shows that Sub-Inspector B.K. Chattopadhyay was asked to Investigate. This means that initially B.K. Chattopadhyay was the Investigating Officer and not the deponent on that day.
28. In the Police Report dated 14th June, 1993 at internal page 14 it is stated that under orders investigation of the case was taken up by the Homicide Squad, D.D. on 18-3-1993. The deponent was not a member of the Homicide Squad. As stated earlier he was the Assistant Commissioner Narcotics Offences cell.
29. The Police Report dated 14th June, 1993 is not signed or countersigned by the deponent. It has been submitted by the Officer-in-Charge, Bowbazar Police Station.
30. In the Police Report, at internal pages 3 to 7 the names of 196 witnesses are mentioned. The witnesses named in serial numbers 182 to 196 are police officers concerned with the case. The name of the deponent does not figure in this list.
31. It has been specifically alleged that no sanction order was given by the Commissioner of Police - respondent No. 3 before . the Designated Court took cognizance on 14th June, 1993. The respondent No. 3 has not affirmed an affidavit denying the said allegations made by the petitioner. The said affidavit affirmed by S.K. Sanyal also does not disclose that he was authorised to affirm the affidavit on behalf of the Commissioner of Police respondent No. 3.
32. There is, therefore, no specific denial by the Commissioner of Police of the averment in the writ petition that no sanction had been granted by him prior to the Designated Court taking cognizance.
33. It is significant that although it is alleged in the said affidavit of S.K. Sanyal that he produced the case diary including the sanction order to the Designated Court and the Designated Court returned the same to him for making copies as the Court did not have the necessary infrastructure, the same is not recorded in the proceeding before the Designated Court nor there is any mention in the sanction order filed in court and subsequently returned as appears from the record of the designated Court.
34. It is well settled that if the allegation is contrary to or inconsistent with what appears from the record of the Court below, the rule is that the record is to be preferred. It is only if both parties agree that there is a mistake or omission in the record of the Lower Court or if the Judge of the Lower Court has himself said on a review application made before him that there is a mistake or omission of certain facts in his order, a Superior Court will not act on the basis of the record.
35. In this connection I may take note of the judgment and decision in respect of the following cases:
Bank of Bihar v. Mahabir Lal, ; Deonandan Ojha v. Ramdeyal Ojha ; Bhagirthi Saha v. Anantanarayan Das Choudhury and etc. .
36. In the instant case the correctness of the version of the deponent has been disputed. In that event the proper course should have been for the respondent to make application for review before the Designated Court which has not however been followed by the respondents.
37. The absence of the sanction order in the record is sought to be justified by the respondents on the ground that the designated court does not possess the necessary infrastructure for taking cognizance. It is however, significant to note that the 12th Judge of the City Civil Court, Calcutta is designated Court by virtue of the notification issued and the infrastructural facilities of the City Civil Court should have been available to the Designated Court. Moreover, there cannot be any justifiable reason for the Designated Court to make over the sanction order to the prosecution for making copies as no copy of the sanction order is required to be supplied by the court to the accused, since the sanction order is not a document which falls within the categories of the document mentioned in clauses (i) to (v) of Section 207(1) of the Code of Criminal Procedure. The sanction order is a document which is necessary to give jurisdiction to the court for taking cognizance of an offence. It is not an evidence which is sought to be relied upon by the prosecution against the accused and as such it is not necessary to supply a copy of the accused. The sanction order is the foundation for taking cognizance by the court and as such the original sanction order should have been kept in the record of the Court and the question of returning the same to the prosecution for making copies thereof cannot arise. Even assuming that the original had been returned to the prosecution for making copies, the said fact should have also been recorded in the courts record. In the absence of such recording of fact question may arise whether the said sanction order was placed before the Designated Court.
38. It has been alleged on behalf of the writ petition that there are certain anomalies appearing on the face of it in the Police Report of which inspection was taken on July 19, 1993 pursuant to the order of the Court and it is the contention of the petitioner that the portion of the report which mentions the sanction of the Commissioner of Police is a later interpolation. It has been submitted that the said portion occurs in the last page of the Police Report and it will be noticed that the type impression of this last page (which is page No. 14) is much lighter than the type impression in the preceding 13 pages of the said report. It has been suggested that the last page was not typed in the same sitting but typed later on and substituting latter in place of the original last page of the Report. It has been submitted that this could be possible because the petitioner made an application for a certified copy and for that purpose the Police Report which had been filed on June 14, 1993 must have been sent to the copying department where it would be lying until July 9, 1993 from where the certified copy will be made available. It has further been submitted that the portions in the last page where the sanctions are mentioned have been typed by ' keeping a double or triple space between the lines, whereas in the first 13 pages of the report preceding the last page, the typing is in single space. The aforesaid facts show that the last page was typed by a different person being order No. 1 of June 11, 1993.
There is no reason why the date and the number of the sanction order has not been mentioned in the Police Report. If the sanction order dated June 11, 1993 was in existence when the Police Report dated June 14, 1993 was filed, there could be no reason for not mentioning the date or the number of the sanction granted by the Commissioner of Police, as has been done with regard to the other sanction under the Explosive Substances Act mentioned therein, where the date of the order and also the number of the order are mentioned. In the Police Report only a bald statement appears that sanction under the TADA Act had been obtained from the Commissioner of Police and no other particulars are mentioned. In my view this aspect of the matter is not so vital so as to affect the validity of the sanction order or for the purpose of taking cognizance and the writ Court should not enter into the aforesaid controversy. However, it is necessary to consider the validity of the sanction on the basis of the order as it appears from the record. It may be mentioned in this connection that Section 20A(2) of the Act provides "no Court shall take cognizance of any offence under the Act without the previous sanction of the Inspector General of Police or the Commissioner of Police". Therefore, previous sanction by the Commissioner of Police is a pre-condition for taking cognizance of an offence under the Act. The said sanction order has been seriously challenged by the learned Advocate for the petitioner on the ground that the said order suffers from serious infirmity and shows total non-application of mind by the Commissioner of Police. It appears that the said sanction order dated June 11, 1993 inter alia provides:
I, Sri Tushar Kanti Talukdar, Commissioner of Police, Calcutta, do hereby accord sanction for prosecution Under Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1993 of the following persons viz....
39. It has been submitted by Mr. Ghosh, learned Advocate for the petitioner that a sanction to prosecute is different from a sanction to take cognizance. In support of his contention he relied on a judgment and decision in the case of Ram Kumar v. State of Haryana . In the aforesaid decision a sanction to prosecute Under Section 132 of the Code of Criminal Procedure was required and a sanction to take cognizance Under Section 197 of the Code of Criminal Procedure was also required. Only a sanction to prosecute was there but no separate sanction was there to take cognizance. The High Court held that the sanction to prosecute could be treated also as a sanction to take cognizance since the sanctioning authority was same and the persons concerned are the same and the same facts were required in both the cases. The High Court held that the sanction to prosecute could be treated as sanction to take cognizance and no separate sanction to take cognizance is necessary. The Supreme Court however, did not accept this view of the High Court. It pointed out the important points of distinction between a sanction to prosecute and a sanction to take cognizance. The Supreme Court held that the sanction to prosecute could not be treated as a sanction to take cognizance and accordingly the Supreme Court held that there was no valid sanction to take cognizance. In the case before the Supreme Court the sanction order was expressly recorded to be a sanction to prosecute as in the present case. Therefore, the principles enunciated by the Supreme Court should apply to the facts of the instant case.
40. Mr. Roy, Learned Advocate for the State respondents however submitted the fact that the sanction order in the present case is there and sufficient and that it is also stated that sanction to prosecute is immaterial. According to him the sanction to take cognizance need not be in particular form. He further submitted that the Supreme Court's decision in the case of Ram Kumar v. State of Haryana ; relied on by the petitioner has been explained by a Division Bench judgment of this Court in the case of Syed Mohammad Hasan v. K.C. Das, Deputy Chief Controller of Import and Export reported in 1991 C Cr LR (Cal) 99.
Therefore, according to him the sanction order in the present case is not invalid. In my view, however, the Supreme Court in the aforesaid decision in the case Ram Kumar v. State of Haryana reported in 1987 SC 735 held that a sanction for prosecution and sanction for taking cognizance are two separate things and various points of distinction between two kinds of sanction was also indicated by the Supreme Court in that judgment. The Supreme Court Court rejected the contention of the State that although the order stated that it was a sanction to prosecute it was nevertheless a valid sanction to take cognizance. In the case before the Division Bench of our Court wherein judgment was delivered by Manoranjan Mallick, J. as he then was the question for scrutiny was with regard to Section 137 of the Customs Act which is similar to Section 197 of the Code of Criminal Procedure which has also been considered by the Supreme Court. In the case before the Division Bench the sanction order was couched in different langauge and the Supreme Court decision was distinguished. The Court held that the sanction need not be in a particular from. In the present case however, as already noted, the sanction order passed by the Commissioner of Police is couched in the same language as the sanction order that was struck down by the Supreme Court which states": "...I hereby accord sanction to prosecute....
The language is different from that of sanction order considered by the Division Bench. Therefore, the ratio of the Division Bench judgment is not applicable in the instant case. Whereas in my view, the Supreme Court decision applies fully in the present case and the sanction order on the basis of the same is liable to be quashed. Apart from the aforesaid attack on the order of sanction, the same has also been challenged on several other grounds. It has been submitted that the sanction order dated June 11, 1993 is expressly stated to be a sanction in respect of offences Under Sections 3 and 4 of the TADA Act of 1993. It has been submitted that 1993 Act being an amending Act Sections 3 and 4 thereof merely provide for certain amendments to Sections 2 and 3 of the parent Act i.e. TADA Act of 1987. Sections 3 and 4 of the 1993 Act do not mention about any offence. It has, therefore, been suggested that the sanction is in respect of non-existent offences and that it is not a sanction in respect of any offence under the TADA Act of 1987 as required by Section 20A(2) of the Act and that it is not a sanction in respect of offences Under Sections 3 and 4 of the TADA Act of which cognizance was taken by the Designated Court on June 14, 1993. The sancion in the aforesaid manner according to the learned Advocate for the petitioner shows complete non-application of mind by the Commissioner of Police while making that order and according to him the order of sanction is accordingly, bad. It has further been submitted that it is settled law that an order for sanction must be strictly construed and that statutory provisions relating thereto must be strictly complied with. Reliance was placed upon the judgment and decision in the case of Mohd. Iqbal Ahmed v. State of Andhra Pradesh, . In the aforesaid decision the Supreme Court at page 679 of the said report observed inter alia as follows:
the grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which afford protection...against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched....
Hence, the sanction order has been submitted to be invalid and could not confer jurisdiction on the designated court. The Supreme Court in the aforesaid decision also indicated certain criterian for determining the validity of a sanction order. One such criteria or requirement is that the facts constituting the offence must be shown to have been placed before the sanctioning authority. Secondly, it must be shown that the sanctioning authority applied its mind to the materials placed before it. Thirdly, the amount of satisfaction of the sanctioning authority must be shown. The Supreme Court in this connection pointed out if the facts are set out in the sanction order then that will be looked into. If the facts are not stated on the order then it has to be shown "alunde" that such facts have been placed before the sanctioning authority. In the present case the sanction order only shows that it is a two page order which purports to set out facts considered by the sanctioning authority. It has therefore, to be considered whether the facts mentioned in paragraph 2 of the sanction order which are said to appear and mentioned in the paragraph 1 of the order contain all the ingredients of an offence Under Section 3 of the TADA Act. As I have already noted that Section 3 of the TADA Act provides for different ingredients of the offences. Section 3 does not contain only one offence but several distinct offences. Section 3(1) defines a terrorist act; Section 3(2) is the offence of commission of a terrorist act. Section 3(3) deals with conspiracy, attempt etc. in relation to a terrorist act or an act preparatory to a terrorist act, Section 3(4) punishes harbouring, concealing of a terrorist which in view of the definition in Section 2(h) of the Act means a person who commits a terrorist act; Section 3(5) deals with punishment of a person who is a member of a terrorist gang or a terrorist organisation which is involved in terrorist acts; Section 3(6) punishes a person who holds any property derived or obtained from commission of a terrorist act or acquired through terrorist funds. The common element in all these separate offences is a terrorist act, which has been defined in Section 3(1).
41. The facts as disclosed in the sanction order in paragraph 2 of the said order tend to show that the offences alleged against the accused is the offence of a terrorist act, which is defined in Section 3(1) and made punishable Under Section 3(2) of the Act. There is no allegation of conspiracy, harbouring etc. which makes the offence an offence Under Section 3(3) or Section 3(4) of the TADA Act. The first portion of Section 3(1) specifies the intent required. The intent may be (a) an intent to over awe the Government or (b) an intent to strike terror in the people or any section of the people or (c) an intent to alienate any section of the people or (d) an intent to adversely affect the harmony amongst different sections of the people.
42. Mr. Roy, learned Advocate for the State Government, however, contended that the intent has been established so far as to adversely affect the harmony amongst different sections of the people.
43. The question that arises for consideration is what is the definition of the word 'Intent'.
44. There is distinction between 'motive and intent'.
45. Motive is stated to be the reasons for doing the Act whereas intent is the state of mind which accompanies the prohibitive Act.
46. According to Webster's Dictionary "Motive" means - something as a need or desire that causes a person to act.
47. According to Webster's Dictionary "intent" means - "The State of mind with which an act is done.
48. Even assuming that the intent was to kill Hindu for protection of the Muslim Community in the event riot taking place as the Government would not take any action cannot be said to be a Terrorist Act.
49. If the forbidden act dealt with in the second part of Section 3(1) is accompanied by any one or more of the four intents specified above, then an offence is made out and it can be said that the facts constituting the offence have been set out. However, no such intent has been disclosed, at least there is no such averment to that effect in the sanction order. On the contrary the averments relating to intent as set out in paragraph 2 of the sanction order is that the word "and / or" occurs between. separate intents. It has been very emphatically argued by Mr. Ghosh the learned Advocate for the petitioner that the same can only mean that the accused had intent 'x' and intent 'y'. It can also mean that the accused had intent 'x' or intent 'y'. It is this latter averment which is bad in law. Therefore, there is no specific charge relating to any offence. A person charged with an offence must have an intent specified in the section. He can also have more than one of the intents specified but he cannot be said to have either this intent or that intent. It has also been submitted that the use of the expression 'and / or' which of the required intents the accused had. It has also been submitted that it also indicates non-application of mind by the sanctioning authority, which completely vitiates the sanction order. In support of his contention Mr. Ghosh, learned Advocate for the petitioner relies upon a judgment and decision in the case of Jagannath Misra v. State of Orisssa . The aforesaid decision relates to a detention order which has been passed under the Defence of India Rules by the Government of Orissa which was the subject matter of challenge. The detention order - which is set out in paragraph 2 of the judgment at page 1141 - says that the order was passed to prevent Jagannath Misra from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, India's relations with foreign power, the maintenance of peaceful conditions in any part of India or the efficient conduct of military operations." Each of the grounds mentioned above was a valid ground for detention. The order was struck down by the Supreme Court, inter alia on the ground that the word "or" had been used therein. This aspect is dealt with in paragraph 7 of the judgment at pages 1142 - 1143. In paragraph 7 Wanchoo, J. observed as follows:-
there is another aspect of the order which leads to the same conclusion and unmistakable shows casualness in the making of the order. Where a number of grounds are the basis of detention order, we would expect the various grounds to be joined by the conjunctive 'and' and the use of the disjunctive 'or' in such a case makes no sense. In the present order however, we find that the disjunctive 'or' has been used, showing that the order is more or less a copy of Section 3(2)(15) without any application of the mind of the authority concerned to the grounds which applied in the present case.
The learned Advocate also referred to the judgment and decision in the case of Kishori Mohan Bera v. State of West Bengal . In the aforesaid case the detention order which was challenged was passed under the Maintenance of Internal Security Act 1971 stating that it was necessary to pass a detention order against the petitioner in that case "with a view of preventing him from acting in a manner prejudicial to the maintenance of public order or security of the State". This order was struck down by the Supreme Court. In paragraph 8 of the judgment at page 1752 Shelat J. dealing with this aspect said "the satisfaction of the District Magistrate was on the disjunctive and not conjunctive grounds, which means that he was not certain whether he had reached his subjective satisfaction as to the necessity of exercising his power of detention on the grounds of danger to the public order or danger to the security of the State...as the order stands, it would appear that he was either not certain whether the alleged activity of the petitioner endangered public order or the security of the State, or he did not seriously apply his mind on the question whether the said alleged activity fell under one head or the other and merely reproduced mechanically the language of Section 3(l)(a)(ii). When such equivocal language is used in an order and the detenue is not told whether his alleged activities fell under one head or the other or both, it is not difficult to appreciate that a detenue might find it hard to make an adequate representation.... " Again in paragraph 10 the Court commented that the language in which the impugned order was couched demonstrated an element of casual-ness with which it was made. The judgment and decision in the case of Akshoy Konai v. State of West Bengal was also relied upon by Mr. Ghosh, learned Advocate for the petitioner. In the aforesaid decision a detention order which was the subject matter of challenge was passed by the District Magistrate under the Maintenance of Internal Security Act and the grounds of detention was stated in the alternative using the word 'or'. In paragraphs 4 and 5 of the judgment the Supreme Court discussed the implication of the use of the word 'or'. The order was struck down, following the earlier decisions of the Supreme Court . The Division Bench of our Court also followed the aforesaid decisions in the case of Dulal Chandra Ghosh v. District Magistrate, Birbhum reported in ILR 1973 (2) Cal 554 : (1974 Cri LJ 24). The averments in the sanction order relating to the act alleged against the accused may also be taken note of. The averments is that the accused "with intent to...were engaged in preparing and / or causing to be prepared bombs with explosive substances and highly explosive materials by procuring them, which acts were likely to cause death or injuries to persons and loss of for damage to and / or destruction of properties and thereby committed terrorists acts." It has been contended by the learned Advocate for the petitioner that the said averments does not cover the ingredients required by Section 3(1) of TADA Act. According to me preparing of bombs with explosives materials and using them are different. In the instant case the sanction order does not refer to the latter portion of the ingredients namely 'user' and user must be in such a manner as is likely to cause death. Mere preparation of bombs with explosives by itself do not come within the purview of the other ingredients of the user. The judgment and decision in the case of Ayubkhan Klandar Khan Pathan v. State of Gujarat reported in 1991 Cr. LJ 1085 has also been relied upon by the learned Advocate for the petitioner. The question arises in the said decision whether the act of pulling out a revolver and pointing it at another was an act which falls within Section 3(1) of the TADA Act. The Court held that it did not, because there was no user of the gun. In paragraph 19 of the said judgment the Division Bench of the Gujarat High Court held that "it is clear that not even a single averment is made in the FIR with regard to intention as mentioned in Section 3 of the TADA Act." After examining certain statement, the Court held that the requisite intention was not shown. The Court then went on to examine whether the ingredients with regard to act prohibited by the Sections were there. It was observed "assuming that such an intention was there...what is required is "use" of the firearm in such a manner as to cause or likely to cause death.... In the present case except taking out the revolver and giving a threat by the petitioner there was no use alleged whatsover. " Accordingly the Court held that the case did not come within Section 3 of the TADA Act.
50. On the basis of the decision noted it is not in dispute that the ingredients of Section 3(1) of TADA Act are, that
(i) the charge sheeted accused shall have one or all of the intentions mentioned in the section.
(ii) with such intention the accused must do an act or thing by using bombs or other explosive substances etc.
(iii) Bombs or explosive substances shall be used in such a manner as to cause or as is likely to cause death of or injuries to any person or persons, or
(iv) Cause loss of, or damage to or destruction of property.
51. Other provisions of Sub-section (1) of Section 3 are not relevant for the purposes of the present case.
52. In fact, Mr. Balai Roy has referred to the same which is recorded in the note filed by him.
53. It has further been submitted by Mr. Roy that the question as to whether in the facts of the present case Sections 3 and 4 of TADA Act are applicable have to be examined upon two considerations, namely (a) whether the ingredients of Sections 3 and 4 have been made out from the police report and other materials produced before the Designated Court and (b) having regard to the provisions of Section 21(1) and (2) of TADA whether it shall be presumed that an offence Under Section 3 of the TADA Act has been made out.
54. According to him from the reading of the charge-sheet along with the materials the ingredients under TADA Act are apparent.
55. Mr. Roy further submitted that the charge-sheet clearly makes out that one of the intentions was spelt by accused Rashid Khan himself, namely "to kill the Hindus in Calcutta by using those bombs through Muslims brothers". According to thim this intention constitutes ingredient of the offence namely intention "to adversely affect harmony amongst different sections of the people" is apparent.
56. He has further submitted that the existence of this intention also appears from surrounding circumstances of case. It is also his contention that the accused with this intention had caused a huge explosion by using explosive substances and bombs.
57. In this connection the Ld. Advocate referred to the judgment and decision in the case of E.P.W. Dar Conta v. Union of India reported in 121 ITR 751 : (1979 Tax LR (NOC) 71. It has further been submitted that in the present case no doubt explosive substances and bombs were being used. He has further submitted that whether a particular intention exists or not has to be inferred from the facts and circumstances of the case. It is the contention that intention is natural and probable consequence of an act.
58. He also relied upon the judgment and decision in the case of Raghubir Singh v. I.T. Commissioner wherein it was held that "man's intention ought to be judged by his acts and not from what may be in his mind. It should be ascertained by taking consideration the entire transactions. A man is presumed to intend the natural and probable consequences of his own acts.
59. Mr. Roy submitted that the intention to strike terror in the people or in a section of the people will appear from the quality of the action of the accused which resulted in such a huge explosion causing death of 69 persons, injury to 46 others and destruction and damage to eight buildings. Under Section 3(2) of the General Clauses Act, 1897 an act includes illegal omissions. In the present case there is no doubt according to him that the accused used explosive and bombs for the purposes of doing an act. The nature of the act was so grave that it was bound to strike terror among the people and at least among a section of the people, who would thereby be alienated from the main stream of life. That the quality of the act determines the nature and extent of its reach on the society has been held in the decision of the Supreme Court in the case of Sk. Kader v. State of West Bengal reported in in . The same view was taken in another decision by the Supreme Court in the case of Debu Ghosh v. State of West Bengal .
60. According to him, there cannot be doubt that charge-sheet clearly discloses the ingredients of Section 3(1) of the TADA Act. A case under Sub-section (3) of Section 3 of TADA has also been made out.
61. It has further been submitted that Section 4 of TADA Act is attracted inasmuch as Rashid Khan by declaring that the intention was to kill Hindus, and other accused conspiring with him to do the same act, had advocated killing of public servants who might as well be Hindus. Hence the acts constitute offence within the meaning of Section 4(3) of TADA Act.
62. In my view the submissions made by Mr. Roy and decisions in the case of R.P.W. Dar Conta v. Union of India reported in 121 ITR 751 (754) and in the case of Raghuvir Singh v. I.T. Commissioner (supra) cannot be of any assistance to him in the facts of the instant case.
63. It is quite true that intention is natural and probable consequences of an act". If that be so the explosion which took place on March 16, 1993 does not in effect show that intention was to kill Hindus since no Hindu was killed by the said explosion.
64. So far as Section 4 of the TADA Act is concerned no facts constituting an offence Under Section 4 had at all been stated in the sanction order. The only referene is in paragraph 2 of page 2 of the order where it is stated that it appears from the aforesaid records and documents that the aforesaid persons conspired and were preparing to commit disruptive activities. This averment does not state the facts constituting an offence Under Section 4. They merely give a lebel to unspecified Act.
65. "Disruptive Activities" is defined in Section 2(d) of the 1987 Act as having the meaning assigned to it by Section 4 of the Act. Section 4(2) of the Act defines disruptive activities to mean any action taken which either questions disrupts or is intended to disrupt the sovereignty and territorial integrity of India or which is intended to bring about of support any claim for the cession or secession of any part of India.
66. It is not stated in the sanction order that the accused did any act affecting the sovereignty or territorial integrity of India or in relation to them or secession of any part of India. There is also nothing in any of the materials considered by the Commissioner as stated in the first paragraph of his order, which would show that the accused had committed any such Act. Therefore so far as Section 4 is concerned the sanction order is bad. The facts constituting an offence Under Section 4 have not been stated.
67. Mr. Roy, learned Advocate for the State however relied upon the judgment and decision in the case of Ananta Mukhi v. The State of West Bengal . In the aforesaid decision the Supreme Court took into consideration the special definition of the expression "acting in any manner prejudicial to the security of the State or the maintenance of public order" contained in Section 3(2) of the West Bengal (Prevention of Violent Activities) Act 1970. In the detention order passed under that Act the language of the statutory definition (which contained the word "or") was reproduced. It was held that, in the circumstances, the use of the word "or" in the grounds of detention, did not show non-application of mind by the detaining authority.
68. The Supreme Court in subsequent decisions in the case of Kishori Mohan Bera v. State of West Bengal and in the case of Akshoy Konai v. State of West Bengal reiterated the same view. Mr. Roy learned Advocate for the State also refers to the judgment and decision of the Division Bench of this Court in the case of Dulal Chandra Ghosh v. District Magistrate, Birbhum reported in ILR 1973 (2) Cal 554 : (1974 Cri LJ 24) which has been cited by the learned Advocate for the petitioner. It however, appears that in all these cases the judgment and decision was distinguished on the ground that in that case there will be a special definite contained in the West Bengal (Prevention of Violent Activities) Act 1970, which itself contained the word "or" and therefore, the use of the word "or" in the detention order did not indicate non-application of mind.
69. In the present case however, there is no special definition as contained in the said 1970 Act. The judgment and decision relied upon by Mr. Roy, therefore is distinguishable. Accordingly following the decisions in the case of Jagannath Misra v. State of Orissa , in the case of Kishori Mohan Bera v. State of West Bengla and also in the case of Akshoy Konai v. State of Bengal in in my view the sanction order in the instant case is liable to be struck down on the ground of non-application of mind.
70. It has also been suggested that it is true that the word used in the impugned sanction order is "and / or" and not "or". But that makes no difference. When a statement like 'a' and / or 'b' is made it can mean 'a' and 'b'. It can also mean 'a' or 'b'. The words "and / or" can imply either of the said two meanings. As the second meaning can legitimately be understood by the word "and / or", i.e. in a disjunctive (and not conjunctive) sense, the use of those words being the order within the mischief of the principles laid down in the Supreme Court (and Division Bench) judgments relied upon by the petitioner. It is obligatory on the sanctioning authority to apply his mind to the facts and to see whether they disclose the ingredients of the offences or offences in respect of which he is to grant "or withhold" the sanction. This involves two stages, firstly, the facts must be placed before the sanctioning authority, if the facts are not set out in the order itself, evidence can be adduced to show as to what facts were before the sanctioning authority but in the instant case that question does not arise as the facts are set out, in the order itself. Next question arises whether they disclose an offence requiring sanction. In this case the challenge of the petitioner relating to the validity of the sanction order is on the ground that at this subsequent stage there was non-application of mind by the sanctioning authority. Simply because the facts have been set out in the sanction order the same does not imply that the sanctioning authority has duly applied his mind to the question as to whether the facts constitute or disclose an offence. The submission of Mr. Roy that there is a "prelude of facts" which precedes the averments of the requisite intent for the offence and as such that there can be no question of non-application of mind cannot be accepted. It is necessary that sanctioning authority must consider the facts as also should apply his mind to the question as to whether the said facts constitute and disclose an offence.
71. This latter part appears to be absent in the sanction order. In other words the sanction order passed by the Commissioner of police dos not disclose his application of mind on the question as to whether the facts averred constitute and disclose an offence. It has been mentioned in the last portion of the sanction order stated to be the intent for commission of the offence or for commission of wrongful acts. The word "and / or" which occurs twice in the context of intent, show that the Commissioner is not sure and that indicates non-application of mind, according to the principles laid down in the Supreme Court cases cited.
72. It is well settled from the several decisions of the Supreme Court already noted that the TADA Act can only be invoked when the law enforcing machinery is or the existing law is considered to be inadequate for dealing with the offender. The Commissioner of Police although he is the head of the law enforcing machinery has not mentioned in the sanction order that the situation is such that the law enforcing machinery has broken down or that the existing law is inadequate for dealing with the offender and as such TADA Act has been invoked. It may be noted that Section 20A(2) of the TADA Act was introduced by the amendment sometime after Usman Bhai's case (supra) and Niranjan's case (supra). This is an additional safeguard provided by the legislature, so that persons may not be roped in under the Act unless the law enforcing machinery has broken down. As Section 20A(2) of the TADA Act is a condition precedent to the power of the Court to take cognizance Under Section 14 of the TADA Act in respect of an offence under that Act, it is incumbent on the sanctioning authority to consider whether the conditions for invoking the TADA Act as laid down by the Supreme Court are satisfied or not. Being the head of the law enforcing machinery the Commissioner of Police is in a better position to assess the said position but very significantly has not mentioned the same in the sanction order although the said sanction order is a speaking order. In a case concerning the TADA Act the sanctioning authority is duty bound to consider not only whether an offence under the Act is disclosed, but also consider whether this special Act should be invoked at all in lieu of recourse to ordinary criminal Courts. Apart from this vital infirmity the sanction order as has already been shown was passed in a casual manner in view of reference of offences Under Sections 3 and 4 of the TADA Act, 1993. .
73. Mr. Roy, learned Advocate for the State however referred to the presumption mentioned in Section 21 of the TADA Act as to offences Under Section 3 of the TADA Act. He referred to presumption (a) in connection with his argument regarding grant of sanction Under Section 20A(2) and also (b) in connection with the taking of cognizance Under Section 14 of the Act. He submitted that the aforesaid presumption was staring one in the face. This argument however, does not appear to me to be tenable, firstly because the said Section 21(1) provides as follows: "In a prosecution...if it is proved...the Designated Court shall presume...that the accused committed such offence". From the aforesaid section it appears (a) the presumption can only arise at the stage of prosecution i.e. the stage of trial, and (b) it can arise only after the facts mentioned in clauses (a) to (d) of Sub-section (1) have been proved. It, therefore, appears to me that stage of prosecution not having reached as yet the presumptiton cannot be invoked, as the language of Section 21 itself shows. The stage at which sanction is granted Under Section 20A(2) of the Act is a pre-trial stage. Also the stage when cognizance is taken Under Section 14 of the Act is a pre-trial stage. Both these stages being stages before the prosecution commences, the presumption Under Section 21 cannot be raised at those two stages, as the languages of Section 21 itself.
74. Mr. Roy, learned Advocate for the State also relied upon the Rishbud's case for the proposition that an illegality in course of investigation does not affect the legality of taking cognizance or of the legality of the trial, the Supreme Court distinguished between the three different stages involved in a criminal proceeding viz. (1) the investigation stage (2) the cognizance stage and (3) the trial stage, which commences with the framing of charges. The Supreme Court however, in the judgment and decision in the case of Mohd. Iqbal Ahmed v. State of Andhra Pradesh observed as follows:
With due respect to the learned counsel, this argument seems to be wholly misconceived. In the first place, there is no question of the presumption being available to the Sanctioning Authority because at that stage the occasion for drawing a presumption never arises since there is no case in the Court. Secondly, the presumption does not arise automatically but only on proof of certain circumstances, that is to say, when it is proved by evidence in the Court that money said to have been paid to the accused was actually recovered from his possession. It is only then that the Court may presume the amount recovered would be deemed to be an illegal gratification. So far as the question of sanction is concerned that arises before the proceedings come to the Court and the question of drawing the presumption does not arise at this stage.
75. The Supreme Court accordingly repelled the argument that the presumption of the Court can be raised at the sanction stage. The relevant paragraph 4 at page 679 has already been quoted. In view of the aforesaid observation of the Supreme Court which is causally applicable to the instant case, it appears to me that the presumption Under Section 21 is not applicable at the sanction stage and the contention of Mr. Roy to the extent cannot be accepted.
76. It has been submitted by Mr. Ghosh learned Advocate for the petitioner that taking cognizance is a judicial Act, and as such, the same requires due application of mind by the Judge to all relevant matters. In support of his contention the learned Advocate relied upon the judgment and decision in the case of Mowv v. Supdt. Special Jail, Nowgong, Assam .
77. It has further been submitted on behalf of the petitioner that the Designated Court did not consider inter alia.
(i) the confessional statements of the co-accused;
(ii) The sanction given by the Commissioner of Police, and
(iii) It did not also apply its mind to the question as to whether the conditions precedent for invoking or resorting to the TADA Act as laid down by the Supreme Court, were fulfilled or not.
(iv) It was also submitted that according to the law laid down by the Supreme Court, the only way by which a superior Court can find out whether the lower Court had applied its mind or not is from the order itself and it is incumbent on judicial and also quasi judicial authorities to state their orders.
78. In support of his contention the learned Advocate relied upon the judgment and decision in the case of Vasudeo Vishwanath Saraf v. New Education Institute .
79. It has been submitted that the Designated Court has not given any reason for taking cognizance and, therefore, on this ground also, the order is bad in law.
80. It has also been submitted on behalf of the petitioner that Designated Court did not apply its mind to all the relevant facts and considerations and acted mechanically and casually.
81. Mr. Balai Roy Ld. Advocate for the respondent-State, however, submitted that the confessional statements of two other co-accused persons were recorded by a Magistrate Under Section 164 of the Code of Criminal Procedure. He sent those statements to the Metropolitan Magistrate who passed the order dated 3rd May, 1993 adding Sections 3 and 4 of the TADA Act. Mr. Roy has submitted that at that stage, the Section 164 statements were made available to the Investigating Agency for making copies, and thereafter the two original Section 164 statements were put into two envelopes by the Magistrate, which were sealed by him. Subsequently, pursuant to the direction of the Designated Court, the Chief Metropolitan Magistrate sent the records of the case, which included the said two sealed envelopes, to the Designated Court. On 10-6-1993 these records were received by the Designated Court as it is noted in the order sheet of the Designated Court against the date 10-6-1993. These envelopes were produced before this ' Court after the records were sent to it by the Designated Court pursuant to the direction of this Court. The seals put by the Chief Metropolitan Magistrate on the envelope containing the Section 164 Statements are intact, which means that they were not opened and perused by the Designated Court. It is, therefore, manifest that the Designated Court has not perused and applied its mind to these very important materials namely, the two confessional statements by other co-accused, on which reliance has been placed in the police report dated 14-6-1993.
82. Mr. Roy's submission that copies were made of these Section 164 statements at an earlier stage (on 3-5-1993 before the C.M.M.) does not answer the point made by the petitioner that the Designated Court did not see and consider the said Section 164 Statements.
83. Firstly, the fact that the seals put by the C.M.M. on the envelopes containing the said statements are unbroken and intact conclusively prove that the Designated Courts did not consider these statements.
. 84. Secondly, there is no averment in the Affidavit-in-Opposition that copies of the Section 164 Statements were handed over to the Designated Court on 14-6-1993 when it took cognizance. Thirdly, there can be no reason for handing up copies of those statements to the Designated Court, because the original statements themselves had been forwarded to the Designated Court in sealed envelopes on 10-6-1993 which is recorded in the order sheet of the Designated Court.
85. A sanction order Under Section 20A(2) of the Act is a condition precedent to taking cognizance Under Section 14 of the Act. Therefore, the Designated Court had to see the sanctioned order and satisfy himself that the sanction was in terms of Section 20A(2) and therefore there was no bar to his taking cognizance.
86. As already noted the sanction order is not mentioned in the order of the Designated Court taking cognizance and it was not filed and is not on record. The only evidence that the Designated Court saw the sanction order at the time of taking cognizance is the affidavit evidence of the person who has affirmed the Affidavit-in-Opposition to Rashid's petition. Detailed submissions have been made as to why this evidence which is inconsistent with and not borne out by the records - should not be accepted, on factual and also legal grounds. In a criminal matter, there is no reason for presuming that the Designated Court must have seen the sanction order, particularly in view of the facts stated above. It is for the State, and not for the accused, to establish by satisfactory and acceptable evidence that the Designated Court did see and consider the Sanction Order, which is a condition precedent to the Designated Courts' power to take cognizance. The State has failed to do so.
87. In the light of the above, and particularly as the order dated 14th June, 1993 is not a speaking order, the inescapable conclusion is that the Designated Court did not see or apply its mind to the sanction order or satisfy itself that it was a proper sanction Under Section 20A(2) of the TADA Act. This is a clear example of non-application of mind to a very important matter, and it vitiates the order taking cognizance.
88. It has been pointed out that the Designated Court did not at all advert to the question as to whether the conditions laid down by the Supreme Court for invoking the TADA Act existed. Consideration of this aspect is reflected in the sanction order and it is also not reflected in the police report or in the order taking cognizance or in materials which were before the Designated Court at the time of taking cognizance. Non application of mind to such an important matter vitiates the order taking cognizance.
89. As the Designated Court assumes jurisdiction upon taking cognizance, and the accused are put in jeopardy of being tried under a very harsh and draconian special law which removes many of the safeguards, available to the accused under the ordinary law, on principle, it is all the more important that the order taking cognizance should state reasons for doing so. There is no other way in which a superior Court can find out whether the lower court duly applied its mind to all relevant facts and considerations, before taking cognizance.
90. In the present case admitted position is that the Designated Court did take cognizance of offences Under Sections 3 and 4 of the TADA Act on 14th June, 1993. Admittedly the order dated 14th June, 1993 records "Heard Learned P.P. Perused police papers. Cognizance taken." The question that has been raised in the present case is whether the Designated Court duly applied its mind. This is not a matter of form but one of substance.
91. It is, therefore, for the State to prove to the satisfaction of this Court that the Designated Court did take those matters into consideration, while taking cognizance. The cases cited by Mr. Roy are of no assistance in resolving this question of fact.
92. Mr. Roy, learned Advocate for the State, however, submitted that the taking cognizance does not involve taking any formal action and does not have to be in any particular form. In support of his contention Mr. Roy relied upon the following decisions namely R.R. Chari v. State of Uttar Pradesh in the case of Zubaida Sultan Begum v. Dawood Ismail Makra and also decisions reported in AIR 1953 Cal (sic) AIR 1962 SC 765, , , and AIR 1967 Mysore 129.
93. Mr. Roy also submitted that cognizance is a continuous concept and it continues from the inception of the case till judgment is delivered. He submitted that cognizance accordingly, is not liable to be quashed. It may, however be noted that the aforesaid cases cited by Mr. Roy do not militate against the view that taking of cognizance is judicial act which requires application of mind. Considering the decisions relied upon by Mr. Roy it appears to me that it cannot be disputed that cognizance means application of judicial mind to the suspected commission of an offence with a view to take further action towards trial as provided in the Code of Criminal Procedure. The aforesaid decisions deal with the questions namely, what is the meaning of cognizance? When can it be said to have been taken? Does it have to be in any particular form?
94. The question that has been raised in the present case is whether the Designated Court duly applied its mind. This is not a matter of form but one of substance. Some of the specific matters to which the Designated Court did not apply its mind have been set out hereinbefore. It is, therefore, for the State to prove to the satisfacion of this Court that the Designated Court did take those matters into consideration, while taking cognizance. This is a question of fact. The cases cited by Mr. Roy are of no assistance in resolving these questions of fact.
95. The other point urged by Mr. Roy, namely, taking cognizance is a continuous concept and the same cannot be quashed. It, however, appears to me that once cognizance is taken of an offence, the Court becomes seized of the matter and it continues to be in the seisin of the matter until the judgment is delivered. Taking of cognizance is the specific act and if during the seisin of the matter any other offence comes to light, the Court can take cognizance of the said new offence also. Recently, however, a Special Bench of this Court has delivered a judgment in the case of Sakti Sadhan Mahji v. The State reported in 1933 (2) CHN 154. In the aforesaid decision the Special Bench held that an order taking cognizance is bad and void and accordingly the cognizance and the criminal proceedings pursuant thereto were quashed. In view of this decision the submission of Mr. Roy that the question if the cognizance is a continuous concept or not is only a matter of academic interest. When the Court takes cognizance, proceedings are initiated by the Court as a step towards trial by Court. In that view of the matter if the Court had no jurisdiction to take cognizance of an offence under the TADA Act for the reasons urged in the writ petition, then obviously the proceedings initiated before the Designated Court are illegal and without jurisdiction and the order taking cognizance and all proceedings consequent thereon must be quashed. It may also be noted that the expression "Police Papers" include statements recorded by the Police Under Section 161 of the Code of Criminal Procedure and the seizure list prepared by them and copies of the reports of the Forensic Experts. But the expression "does not include statements recorded not by the Police but by a Magistrate Under Section 164 of the Code of Criminal Procedure which statements are forwarded directly by the Magistrate recording them to the Court dealing with the case. It appears on perusal of the provisions of the TADA Act that a Designated Court is empowered to take cognizance of an offence under the TADA Act, Under Section 14 of the Act. Section 14 provides that the Designated Court can take cognizance upon receiving a complaint of facts which constitute the offence or upon a police report of such facts.
96. It has been submitted that in the present case the Designated Court took cognizance on 14-6-1993 on receipt of a police report dated June 14, 1993. From the language of Section 14 it is obvious that the Police report must contain the facts constituting the offence to enable the Designated Court to take cognizance Mr. Roy, learned Advocate for the State has further submitted that the facts constituting an offence mean facts showing that the accused had the prohibited intent (mens rea) and the facts showing that the accused committed the prohibited act.
97. In the Police report dated June 14, 1993 there is no averment that the accused had any of the prohibited intents specified in Section 3(1) or in Section 4 of the TADA Act. In the absence of any averment of the necessary intent, the police report cannot be said to contain "facts constituting the offence." The fact showing that the accused had the prohibited intent is wholly absent.
98. Mr. Roy learned Advocate for the State, however, argued that it was open to the Court to look into the other materials before it to find out whether the necessary intent was there and he further submitted that the intention can be inferred from the wrongful acts committed or alleged to have been committed by the accused. The said contention of Mr. Roy, however, cannot be accepted. In view of the language of Section 14, when a Court takes cognizance on the basis of a Police report it can look into the Police report only and nothing else. This is a special Act and is also a penal Act which requires to be strictly construed. The Designated Court as provided under the Act is a creature of the same statute and it can exercise only those powers which are specifically conferred by the Act. Section 14 of the Act provides that it can take cognizance on the basis of a complaint or a Police Report. This is a case where there is a police report. The expression "Police Report" used in Section 14 has not been specifically defined in Section 2 of the Code but Section 2(i) provides that the words and expressions used but not defined in the Act and defined in the Code have the meanings respectively assigned to them in the Code. Section 2(b) shows that the word "Code" means the Criminal Procedure Code, 1973.
99. Section 2(r) of the Code of Criminal Procedure contains the defintion of "Police Report". It means a report forwarded by a police officer to a Magistrate Under Section 173(2) of the Code of Criminal Procedure. Therefore, this is the meaning to be ascribed to the words "Police Report" used in Section 14 of the TADA Act.
100. It is clear therefore, Under Section 14 of the TADA Act the Designated Court cannot take cognizance on any material other than the Police report. The argument of Mr. Roy that it is open to the Court to take cognizance on any material other than the police report is not sound. The contention put forward on behalf of the State respondent by Mr. Roy that it is open to the Court to consider the other materials as well does not appear to be valid. It is a well recognised presumption of law that a man intends the natural consequences of his acts. If a person hits a man hard on his head with an iron hammer, the presumption of law will be that he intended to kill him because that will be a natural consequence for hitting the person in that manner. But does that principle apply to the facts of this instant case. The acts which the accused persons did is the act of preparation and storage of bombs, which are undoubtedly made of explosive substances. From these acts of preparaion and storage of bombs, it cannot be inferred that the accused intended to kill the Hindus or strike terror amongst the people or a section of the people, alienate a section of the people or adversely affect the harmony among different sections of the people. Such an intent cannot be inferred from the mere preparation and storage of bombs. It may be noted in this connection that police report does not disclose that the accused persons caused the explosion. As a consequence of the explosion which occurred on March 16, 1993 a large number of persons who were killed were Muslims and not Hindus and even from the consequences of the explosion with which the accused have not been charged, it cannot be inferred that accused who are alleged to have been responsible for the preparation and storages of the bombs, intended to kill Hindus, or strike terror amongst a section of people or that they had any of the intents specified in Section 3(1) of the Act.
101. In the Police report no fact is mentioned from which such intention can be inferred. It has further been submitted that the averment in the police report that the accused was apprehensive that if there was a communal riot in Calcutta and if the Government did not come to the aid of the Muslims, as was felt by them to be the case in Bombay then the bombs would be used to defend Muslim brothers, is an averment of motive which is the reason for the act and which is the reason for preparing and storing the bombs for use in a particular contingency and does not disclose facts showing intent which is a particular prohibited state of mind accompanying the execution of a particular prohibited act.
102. It may be noted that if according to the police report itself the reason or intention behind preparing and storing bombs was to defend the Muslim community in the event of riot taking place by possible attack by Hindus because the Government would not take action as was done in Bombay, it cannot possibly be inferred or said that the accused intended to strike terror or that he had any other intent specified under the TADA Act. It has, however, been submitted by Mr. Roy, in the course of his argument that there are statements of witnesses to the effect that the people of the locality were "scared" of the accused, implying that they were considered as dangerous persons. It has been submitted further that assuming the fact to be true, from this fact it does not follow that the accused entered into a conspiracy to prepare and store bombs with any of the intents specified in Section 3(1), viz. to strike terror amongst the people or a section of the people. It must also be remembered that mens rea is an essential ingredient of an offence.
103. In my view, the cognizance taken by the Designated Court was not on the basis of proper application of mind and the same stands vitiated in view of the following reasons firstly, because the facts appearing from any document other than the police report cannot be looked into for ascertaing "the facts constituting the offence". Secondly, mens rea is an essential ingredients of the offence. There being no averment, in the police report of the mens rea required for an offence Under Section 3 or Section 4 of the Act, the Police report does not disclose any offence under the TADA Act and therefore the Designated Court could not lawfully take cognizance of offence under that Act, as it has purported to do on June 14, 1993. Thirdly for the fact of preparation and storage bombs, the required intent cannot be inferred. Fourthly, there is no allegation that the accused caused the explosion or that they used the bombs in the manner specified in the second part of Section 3(1). Fifthly, an allegation of motive should not be confused with an allegation of intent. Lastly, even if the allegation regarding motive is taken as an allegation of intent, the intent to defend oneself in a future contingency cannot in any event amount to any of the intents specified in Section 3(1) of the Act.
104. Section 20A(2) of the Act provides that no Court shall take cognizance of the offence under the Act without previous sanction of the Inspector General of Police or the Commissioner of Police. In the present case the Designated Court took cognizance on the basis of the Police report filed on June 14, 1993. On perusal of the report it appears that the charge against Rashid and the other accused persons is that they hatched a conspiracy to do certain things. Even assuming that the charge against the accused persons comes within the purview of "Terrorist Act" as defined in Section 3(1) of the TADA Act, the offence with which the accused are charged is an offence of conspiracy to commit a terrorist act, which is a distinct offence, which is punishable Under Section 3(3) of the Act.
105. The sanction order passed by the Commissioner of Police on June 11, 1993, is however, in respect of the commission of a terrorist act, which is an offence punishable Under Section 3(2) of the Act. In the sanction order, there is no whisper of conspiracy so far as Section 3 of the Act is concerned. So far as the charge Under Section 4 of TADA Act is concerned there cannot be any dispute that nothing has been disclosed in the Police report wherefrom the ingredients of any offence Under Section 4 of TADA Act may be found out. The sanction order to that extent also does not show any ingredient of any offence Under Section 4 of the TADA Act. In my view there are absolutely no materials before the Designated Court on the basis of which the Designated Court can take cognizance of an offence Under Section 4 of the TADA Act. Mr. Roy also did not seriously contend that the Police report discloses materials which would attract Section 4 of the Act.
106. A question was raised in course of argument if the entire order taking cognizance is liable to be quashed, if the Court comes to the conclusion that Section 4 is not attracted and therefore, cognizance of an offence Under Section 4 should not have been taken? Mr. Roy contended, relying on some cases cited by him, that even if cognizance of an offence Under Section 4 was wrongly taken, the proceeding in respect of an offence Under Section 3 of the Act could proceed. In reply to Mr. Roy's argument it has been submitted that although such a course might ordinarily be permissible, in the present case, however, the attack on the order taking cognizance is that it is bad because of non-application of mind and as such the entire order becomes bad. There is no such concept as piecemeal application of mind or of severability of the concept of application of mind. However, it is not necessary to go into the said question in view of the fact that taking of cognizance appears to be bad also Under Section 3 of the Act and cognizance taken Under Section 3 is also vitiated.
107. The judgment and decision in the case of Usmanbhai Dawoodbhai Memon v. State of Gujarat was referred to by both the parties. In the aforesaid decision it was held in paragraph 15 at page 929 to the following effect:-
Before dealing with the contention advanced, it is well to remember that the legislation is limited in its scope and effect. The Act is an extreme measure to be resorted to when the police cannot tackle the sitution under the ordinary penal law. The intendment is to provide special mechinery to combat the growing menace of terrorism in different parts of the country. Since however, the Act is a drastic measure, it should not ordinarily be resorted to unless the Government's law enforcing machinery fails
108. It has been submitted on behalf of the respondent by Mr. Balai Roy, Learned Advocate that the said decision of the Supreme Court does not lay down any ratio or principle. The said observation of the Supreme Court is only an obiter dictum. It, however, appears that the said observations were made in the context of interpretation of sections of TADA Act and as such the interpretation of the TADA Act as made by the Supreme Court in the aforesaid observations should have binding effect.
109. In the case of M/s. Raval & Co. v. K.G. Ramchandran it was held by the Supreme Court that any general observation cannot apply in inter-pretating the provisions of an Act unless the Court has applied his mind to and analyses the provisions of that particular Act.
110. In Osman Bhai's case (supra), the provisions of the TADA Act have been gone into. Provisions of Section 3, Section 4 and Sections 19 and 20 of the Act and the other provisions of the TADA Act were set out and discussed and thereafter in paragraph 15 the said observation was made. Therefore, it cannot be said that the said observation was a general observation. The said observation was made in the context of the TADA Act.
111. In the case of Niranjan Singh Karam Singh Panjabi v. Jitendra Bhimraj Bijja the Supreme Court held in paragraph 8 at page 1968 as follows:-
The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country. Since, however, the Act is a drastic measure, it should not ordinarily be resorted to unless the Government's law inforcing machinery fails.
112. To put it differently the ratio of the decision is that the provisions of the Act need not be resorted to if the nature of the activities of the accused can be checked and controlled under the ordinary law of the land. It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or not sufficiently effective for tackling the menace of terrorist and disruptive activities that resort should be had to the drastic provisions of the Act. While invoking a criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents collected in course of investigation that facts emerging therefrom prima facie constitute an offence within the letter of the law. When a statute provides special or enhanced punishments as compared to the punishments prescribed for similar offences under the ordinary penal laws of the country, a higher responsibility and duty is cast on the Judge to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution. Therefore, when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law. But that does not mean that the judicial officer called upon to decide whether or not a case for framing a charge under the Act is made out should adopt a negative attitude. He should frame a charge if the prosecution shows that the material placed on record and the documents relied on give rise to a strong suspicion of the accused having committed the crime alleged against him.
113. The Division Bench of this Court in the case of Dr. A.K. Burman v. Andaman & Nicobar Administration reported in (1994) 1 CHN 27 considered the nature of the drastic provisions of the TADA Act and thereafter held inter alia as follows:-
Accordingly the statute must be strictly construed and it is only in those cases where the law enforcing machinery fails and the ordinary law appears to be inadequate or unable to deal with such cases, then only the provisions of the TADA should be resorted to....
114. It may be noted that the Supreme Court in Kartar Singh's case reaffirmed the principle laid down in Osmanbhai case that the Act being an extreme measure should be resorted to when the police cannot tackle the situation. This aspect of the matter has been gone into in details in the subsequent part of the judgment.
115. Accordingly the contention of Mr. Roy that the said observation of the Supreme Court cannot have binding effect does not appear to be tenable.
116. Learned Advocate for the State further sought to justify the application for TADA on the basis of the following:-
Whether circumstances as observed in Usman-bhai do exist or not is a question of fact and has to be decided on evidence at the trial and cannot be decided on affidavits by the High Court.
117. The entire basis of this argument of the petitioners is the observations in paragraph 15 of the decision of the Supreme Court in Usmanbhai v. State of Gujarat, as explained by the Supreme Court in Niranjan Singh Karan Singh Punjabi v. Jitendra Bhimraj Bijja, and followed in Anil Sanjeev Hagde v. State of Maharashtra 1992 Supp (2) SCC 230 (para 7).
118. It has further been submitted by Mr. Balai Roy learned Advocate for the State that these decisions are not authorities in support of the proposition that TADA applies to those parts of India where certain pre-conditions exist namely, Government law enforcing machinery has failed or that police under ordinary law could not have dealt with the situation. A five Judge Bench of the Supreme Court in the case of State of Orissa v. Sudhangshu Sekhar Misra, made it abundantly clear that "a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. "In the case of M/s. Ranchhoddas v. Union of India, the Supreme Court held that "the question was never required to be decided in any of these cases and could not, therefore, have been or be treated as, decided by this Court.
119. It has been argued by the learned Advocate - Mr. Balai Roy for the State that the Supreme Court in a number of cases have in fact upheld the application of various Sections of TADA only because the facts constitute such offences. It has further been submitted by Mr. Roy that in none of these cases Supreme Court decided that there must be failure of the law enforcing machinery of the Government or that the police could have dealt with the situation under ordinary law. Some of those cases are : (i) State of Maharashtra v. Anand Chintaman Dighe, respondent is the Chief of Shiv Sena Party, Thana District Unit. Threats were given that those who had cross voted in the Mayor election would be killed as they were traitors. He was arrested in connexion with the murder of one of the Corporators Sridhar Khopkar. Bail was granted by Designated Court.
120. It was held that because of Section 20(8) of the Act such granting of bail was improper.
Bail cancelled.
(ii) Erram Santosh Reddy v. State of Andhra Pradesh . Section 3(1) is very wide and covers any act which strikes terror in the people or section of the people would attract the said provisions. The fact that the appellants were armed with the fire arms as well as explosive substance and also hurled a bomb on the police who were in the premises would go to show that the offence of the appellant was to strike terror in the people or a section of the people including the police.
(iii) Kathula Somulu v. State of Andhra Pradesh while police officers were returning they found two extremists proceeding. Police chased and apprehended.
The fact that these appellants were found in the group of other persons in the forest area, and were seen running away seeing the police and coupled with the recoveries of the explosive substances including the country made fire-arms used bad to the inference of 3(3).
(iv) Dilavar Hussain v. State of Gujarat . An allegation against reservation policy of Government later turned into communal riots and one Maniben and her family as also a neighbouring house were burnt and Maniben and her children were burnt to death.
Designated Court convicted. On consideration of evidence on merits the accused were acquitted. But the application of TADA which was assailed was not upheld.
121. It has also been submitted by Mr. Roy, learned advocate for the State that in recent decision the Supreme Court in the case of State of Andhra Pradesh v. Eshar Singh set aside the order of discharge of accused from prosecution under TADA simply because the Court found 'number of allegations which prima facie attract the provisions of the 'TADA'. The Supreme Court did not apply the observations in Usmanbhai's case in none of those cases.
122. It has been contended by Mr. Roy that in none of the three decisions relied on by the petitioners the Supreme Court was called upon to decide whether the Act, as its plain language suggests, apply to whole of India, or although Sub-section (2) of Section 1 of TADA do not indicate, applies to such parts of India where, or on only such occasions. When certain preconditions exist. In these decisions the Supreme Court had not intended to make such a gross amendment of the Act as to abridge the territorial or other limits of its operation.
123. It has been further submitted by Mr. Roy that in Usmanbhai, Supreme Court specifically mentioned that two questions fall for decision of the Court, namely, (i) the jurisdiction and power of the High Court to grant bail in exercise of powers under the Code of Criminal Procedure to a person accused of offences Under Sections 3 and 4 of TADA and (2) nature of the restraint Under Section 20(8) of TADA on the Designated Court in granting bail. The argument of the parties veered only around these two points and the Supreme Court up to paragraph 14 had taken note of all such arguments. Except paragraph 15 the Supreme Court entirely devoted itself to the discussion of these two points. On the authority of the decision of the Supreme Court in M/s. Ran-chhoddas (supra) the Supreme Court was called upon in Usmanbhai (supra) to decide only those two questions and none else.
124. It has further been submitted that if the arguments of the petitioners be accepted it would mean adding a proviso to Sub-section (2) of Section 1 of TADA. The case of Usmanbhai arose from a decision of Gujarat High Court. No one argued that in Gujarat or any part of that State, Government law enforcing machinery had failed nor that the facts of the case were such that police could not have dealt the situation under the ordinary law. The facts of the case as mentioned in paragraph 3 of the decision is simply an armed clash between two groups over possession of land where no one died nor even suffered any grievous injury. Since Sections 3 and 4 TADA were added the Designated Court did not grant bail and the High Court affirmed the order of rejection. In paragraph 27 the Supreme Court ultimately ordered that the Designated Court would 'consider each particular case on merits as to whether it falls within the purview of Section 3 and / or Section 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and if so, whether the accused might be entitled to bail. If materials do not made out a case under TADA the case would Under Section 18 be remanded by the Designated Court to ordinary Courts. But Section 18 provides that it can be done only if Designated Court has taken cognizance. According to Mr. Roy learned Advocate for the State the Supreme Court never held that if the facts constituting the offence attract the provisions of Section 3 and / or 4 TADA still the Designated Court shall refrain from trying the case under the provisions of TADA because the law enforcing mechinery of the Government had not failed or because the police could have dealt with the case under the ordinary law.
125. Supreme Court itself in the decision of Niranjan Singh Karan Singh R.M. Punjabi v. Jitendra Bhimraj Bijja, AIR 1990 SC 1962, explained the ratio and significance of the observations in paragraph 15 of the decision in Usmanbhai. The Court observed that the Act need not be resorted to if ordinary law is not inadequate to check and control the nature of the activities. The Court while pointing out what was the ratio in Usmanbhai held:
While invoking a criminal statute, such as the Act, the prosecution is duty 'bound to show from the record of the case and the documents collected in the course of investigation that facts emerging therefrom prima facie constitute an offence within the letter of the law. When a statute provides special or enhanced punishments as compared to the punishments prescribed for similar offences under the ordinary penal laws of the country, a higher responsibility and duty is cast on the Judge to make sure that there exists prima facie evidence for supporting the charge levelled by the prosecution. Therefore, when a law visits a person with serious penal consequences extra care must be taken to answer that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law. But that does not mean that the judicial officer called upon to decide whether or not a case for framing a charge under the Act is made out should adopt a negative attitude. He should frame a charge if the prosecution shows that the materials placed on record and the documents relied on give rise to a strong suspicion of the accused having committed the crime alleged against him."
126. In Anil Sanjeev Hadge v. State of Maharashtra, 1992 Supp (2) SCC 230, Supreme Court again pointed out the meaning of the observations in paragraph 15 of Usmanbhai's case by extracting the relevant portion in para 8 of the decision in the case of Niranjan Singh Punjabi. Clear emphasis is on the following:
While invoking a criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investigation that facts emerging therefrom prima facie constitute an offence within the letter of the law.
127. The effect of these three decisions is that no one shall be prosecuted under TADA unless the "facts emerging therefrom prima facie constitute an offence within the letter of the law" (Anil Sanjeeb Hadge) and that "extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law". But that does not mean that a negative attitude should be adopted and if the materials justify even then no charge should be framed (Niranjan Singh).
128. It has been submitted by Mr. Roy that the ratio of these three decisions is no authority, as it cannot be that if the materials collected in course of investigation make out an offence under any of the sections of TADA, prosecution still have to show that certain other supervening circumstances, such as failure of the Government's law enforcing agency, or that police could not have dealt with the accused under ordinary law must exist before a prosecution can be launched under TADA.
129. It has been submitted by Mr. Roy learned Advocate for the State that there is another aspect of the matter which is also of paramount importance. TADA Act by Sub-section (2) of Section 1 has made the Act applicable throughout the territory of India. Since, the language of Section 1(2) of TADA is clear, plain and unambiguous the Court has to give effect to the plain words of the statute. Supreme Court in a five-Judge Bench in the case of S.S. Rly. Co. and Workers Union, held-
in the list of these principles we ought, therefore, to give a literal meaning to the language used by the Parliament unless the language is ambiguous or its literal sense gives rise to an anomaly or results in something which would defeat the purpose of the Act.
130. In State of Orissa v. Sudhanshu Sekhar Misra, , the Supreme Court observed that-
decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it.
131. The Supreme Court then quoted with approval the decision in Quinn v. Leatham, 1901 SC 495. Both the above two decisions of the Supreme Court are by Benches larger than the Bench deciding case of either Usmanbhai or Niranjan Singh. Reference is made to the decision of State of U.P. v. Ram Chandra, and also to the decision in AIR 1974 SC 1597.
132. It has been submitted by Mr. Balai Roy learned Advocate that petitioners have relied upon same decision to show that general observations of the Supreme Court may also have binding effect. Reference was made to the observations of the Court in . If the decision is read in the whole and carefully then it will appear that what was held is just the contrary. The Court observed that when Supreme Court analyses the provisions of an Act and upon application of mind makes general observations obviously about the sections of the statute, such observations and interpretation of the section and as such requires to be respected. In none of the three decisions, the Supreme Court analysed the provisions of the Act with reference to various provisions of the statute and particularly Section 1(2) of TADA and hence reliance on this decision is misplaced.
133. Reliance has been placed by the petitioners on the decision in and to show that Supreme Court amends statutory enactment by its decision.
134. In Kartar Singh v. State of Punjab and Kripa Shankar Rai v. State of U.P., the Court dealt with the question of vires of different sections of TADA Act along with several other acts. The first attack on the question of lack of legislative competence was rejected as devoid of any merit. The judgment in the aforesaid case in Writ Petition No. 1833 of 1984 was delivered on March 11, 1994 after hearing was concluded and the parties agreed that the instant case should be reheard for consideration of the aforesaid decision.
135. The Supreme Court in the aforesaid decision observed inter alia as follows:-
True, the offences arising out of the acts, enumerated in Sections 3 and 4 may be similar to the offences falling under the ordinary penal laws. In other words, various offences arising out of the terrorist or disruptive activities may overlap some of the offences covered by the other ordinary penal laws. It is not in dispute that the above provisions which define the expressions 'terrorist act' and 'disruptive activities' provide severe punishment and also prescribe minimum sentence for some acts constituting offences falling within the two provisions. Section 6 of the Act of 1987 provides 'enhanced penalties' for a person who with intent to aid any terrorist or disruptionist, contravenes any provision of, or any rule made under, the Arms Act, 1959 (54 of 1959); the Explosives Act, 1884 (4 of 1884), the Explosive Substances Act, 1908 (6 of 1908) or the Inflammable Substances Act, 1952 (20 of 1952) of not less than five years but which may extend to imprisonment for life and with fine, notwithstanding anything contained in the Acts or the rules made under the respective Acts.
Section 6(2) reads:
For the purposes of Section,- any person who attempts to contravene or abets, or attempts to abet, or does any act preparatory to the contravention of any provision of any law, rule or order, shall be deemed to have contravened that provision, and the provisions of Sub-section (1) shall, in relation to such person, have effect subject to the notification that the reference to 'imprisonment for life' shall be construed as a reference to 'imprisonment for ten years' Part III of the Act creates a special machinery for trying the terrorists and dis-ruptionists charged with the commission of any offence under the Act, namely, constitution of Designated Courts, its jurisdiction, power, power of trial with respect to other offences and to transfer cases to regular Courts procedure to be followed etc. As we have indicated above, the Act tends to be very harsh and drastic containing the stringent provisions and provides minimum punishments and to some other offences enhanced penalties also. The provisions prescribing special procedures aiming at speedy disposal of cases, departing from the procedures prescribed under the ordinary procedural law are evidently for the reasons that the prevalent ordinary procedural law was found to be inadequate and not sufficiently effective to deal with the offenders indulging in terrorist and disruptive activities,-secondly that the incensed offences are arising out of the activities of the terrorists and disruptionists which disrupt or one intended to disrupt even the sovereignty and territorial integrity of India or which may bring about or support any claim for the secession of any part of India or the secession of any part of India from the Union, and which create terror and a sense of insecurity in the minds of the people. Further, the legislature being aware of the aggravated nature of the offences have brought this drastic change in the procedure under this law so that the object of the legislation may not be defeated and nullified.
136. The Supreme Court in this context reiterated and reaffirmed the principles laid down in Niranjan Singh K.S. Punjabi (supra) and Usmanbhai Dawoodbhai Memon (supra) and referred to the principles laid down in Usmanbhai's case as follows :
The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country.
137. The Supreme Court again observed in the aforesaid decision to the effect as follows:
Agreeing with the above view in Usmanbhai's case (supra) Ahmadi, J. in Niranjan's case (supra) stated thus:
'While invoking a criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investigation that facts emerging therefrom prima facie constitute an offence within the letter of the law. When a statute provides special or enhanced punishments as compared to the punishments prescribed for similar offences under the ordinary penal laws of the country, a higher responsibility and duty is cast on the Judges to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution. Therefore, when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law. But that does not mean that the judicial officer called upon to decide whether or not a case for framing a charge under the Act is made out should adopt a negative attitude. He should frame a charge if the prosecution shows that the material placed on record and the document relied on give rise to a strong suspicion of the accused having committed the crime alleged against him.
138. The Supreme Court, therefore, having regard to the object and purpose of the Act as reflected from the preamble and statement of objects and reasons held that the legality and efficaciousness of Sections 3 and 4 cannot be countcenanced. It, therefore, appears that the validity of Sections 3 and 4 of the Act was upheld by the Supreme Court on the ground that although it is a drastic Act, it is to be resorted to when the ordinary law enforcing machinery fails and ordinary law of the country is found to be inadequate to tackle the situation. It cannot, therefore, be said that the observation made in Usmanbhai's case is in the nature of a general observation and is not ratio of the said decision. In any event the said observations have been subsequently approved and reiterated and in fact the validity of Sections 3 and 4 have been upheld only on that principle that the Act is to be resorted to only when the ordinary law is found to be inadequate.
139. In the instant case there is nothing on record to show that the ordinary law enforcing machinery is inadequate to tackle the particular situation or that extreme measures under the TADA had to be resorted to in view of the fact that the ordinary law enforcing machinery has failed. The question whether the mens rea is an essential ingredient of the offences Under Sections 3 and 4 of the TADA Act have also been gone into by the Supreme Court in the aforesaid decision. The Supreme Court in this context observed inter alia as follows:
Generally, it is one of the essential principles of Criminal Jurisprudence that a crime is not committed if the mind of a person doing the act in question, is innocent. Therefore, to constitute a crime, the intent and act must both concur.
140. The Supreme Court further observed inter alia as follows:-
Section 3(1) which gives the meaning of the expression 'terrorist' specifically requires the intention on the part of the offender committing a terrorist act. Similarly, Section 4(2)(i) and (ii), also requires that the person committing the disruptive act should be shown to have intended to do that act. The provisions of Sections 3 and 4 of the Acts 1985 and 1987 are identical. Thus, it is very clear that the substantive offences require intention on the part of the person committing the terrorist act or the disruptive act. The abetment of the commission of these two offences come Under Sections 3(3) and 4(1) of the Act of 1987. The word 'abets' does also appear Under Section 6(2) which deals with 'enhanced penalties.' Therefore, when the substantive provisions of the Act expressly require the intention as an essential ingredient to constitute an offence, can it be said that the ingredient of intention should be excluded the part of the abettor who abets those substantive offences. In other words, can it be said that the abettor has abetted the subsantive offence without any guilty mind (mens rea) or without actual knowledge as to what would be the consequence of his designed act."
141. The Supreme Court further pointed out that 'the person who is indicted of communicating or associating with any person or class of persons who is engaged in assisting in any manner terrorist or disrup-tionists should be shown to have actual knowledge or to have reason to believe that the person or class of persons with whom he is charged to have communicated or associated is engaged in assisting in any manner the terrorists and disruptionists.'
142. So far as Section 2(l)(i)(a) of 1987 Act is concerned the Supreme Court held that the word 'abet' as defined under the said section is vague and imprecise 'actual knowledge or reason to believe' on the part of a person to be brought within the definition, should be read into that provision instead of reading that provision down. The contention that Sections 3 and 4 of the Act of 1987 are liable to be struck down on the grounds that both the Sections cover the acts which constitute offences under the ordinary laws and there is no guiding principle as to when a person is to be prosecuted under these sections for the reasons already noted namely, that the Act will be resorted to only in extreme cases when ordinary law enforcing machinery fails. Section 8 of the TADA Act is not violative of Articles 14 and 21 of the Constitution. The challenge on the validity of the legislative competence was found to be of no merit. It was also held that though it cannot be said that the High Court has no jurisdiction to entertain an application for bail under Article 226 of the Constitution and to pass orders either way, relating to the cases under the Act, that power should be exercised sparingly, that too only in rare and appropriate cases in extreme circumstances. Section 22 of the TADA Act was struck down as being opposed to the fair and reasonable procedure enshrined in Article 21 of the Constitution.
143. Mr. Somen Bose learned Senior Advocate for the Union of India, has submitted that the present Writ Application under Article 226 of the Constitution does not lie because an alternative remedy is available to the petitioner Under Section 18 of the TADA Act.
144. This submission should not be accepted for the reasons set out hereunder:-
(a) Firstly, Section 18 of the TADA Act is not an alternative remedy, in the facts of this case.
In the writ application, the petitioner has challenged the vires of the TADA Act itself. The Designated Court, being an authority constituted under that Act, is not competent to decide the constitutionality of the Act. Only the High Court, in exercise of power conferred by Article 226, or the Supreme Court in exercise of power under Article 32 can do so.
Further, in the writ application, questions have been raised, inter alia, regarding the validity of the sanction order Under Section 20A(2) of the TADA Act and the validity of the cognizance purported to have been taken by the Designated Court Under Section 14 of that Act, etc. It is contended that the conditions precedent for invoking provisions of the TADA Act, as laid down by the Supreme Court, have not been fulfilled and therefore the Designated Court has no jurisdiction to initiate or continue proceedings under the said Act against the petitioner and that the TADA Act is not applicable to the petitioner, and his fundamental rights under Articles 19, 14 and 21 of the Constitution have been violated. It is obvious that the Designated Court is not competent to decide any of these questions, in an application Under Section 18 of the TADA Act.
Section 18 of the TADA Act comes into play only if cognizance is lawfully taken and the TADA Act has been lawfully invoked in a given case. In those circumstances, Under Section 18, if the Designated Court comes to the conclusion that an offence under the TADA Act has not been made out, it can transfer the case involving offences under other Acts to the Ordinary Criminal Courts empowered to try the same.
The language of Section 18 of the Act itself shows that power can be exercised under that Section "if cognizance has been taken." This necessarily means: "if cognizance has been lawfully taken". In the present case the petitioner has challenged the validity of the order of the Designated Court to take cognizance and it contends that cognizance has not been lawfully taken. This question cannot be decided Under Section 18 of the Act.
Therefore, as the Designated Court is not competent to decide the questions raised or to grant the reliefs prayed for in the writ petition, an application Under Section 18 of the TADA Act is not an alternative remedy, far less an equally efficacious and adequate alternative remedy.
(b) Secondly, an application under Article 226 of the Constitution can be thrown out on the ground of an alternative remedy being available, only if that point is taken at the beginning and not after the Court has entertained the writ application on merits.
In the present case the point that the writ petition does not lie because of an alternative remedy Under Section 18 of the TADA Act was not raised at the beginning of the case, in July, 1993.
In the present case, the Court has entertained the writ petition on merits and has heard arguments addressed by the parties over a period of six months and the arguments are almost complete. It is, therefore, not open to the Union of India, at this stage, to raise the point about an alternative remedy.
Moreover, it may be noted that the State of West Bengal has not taken a point in its affidavit-in-opposition to the writ petition that it is not maintainable because of the existence of an alternative remedy Under Section 18 of the TADA Act. Nor has such a point been urged by Mr. Roy, appearing for the State. The Union has not filed any affidavit-in-opposition at all. Mr. Bose was only requested by the Court to address it on the question as to whether cognizance as a whole would be vitiated if the Court found that an offence Under Section 4 of the TADA Act had not been made out. The submission of Mr. Bose dealt with hereinabove is not related to that point at all.
(c) Thirdly, in any event there is no absolute rule that the existence of an alternative remedy is a bar to the maintainability of a writ petition. Where, for example (as in the present case) it is alleged that the fundamental rights of the petitioner have been violated, the existence of an alternative remedy is immaterial. Reference may be made in this connection to the judgment and decision in the case of Himmatlal Hiralal Mehta v. State of Madhya Pradesh, . It is also well settled that when the validity of the Act which provides the alternative remedy is itself under challenge, (as in the present case), the existence of the alternative remedy is immaterial. Again if the alleged alternative forum is not competent to grant the reliefs prayed for in the writ application or to decide the points raised therein (as in the present case) an alternative remedy is not a bar to a writ petition. These propositions are well settled.
145. In the course of arguments of Section 18 of the TADA Act, Mr. Bose tried to draw inspiration from Usman Bhai's case 1988 SC (supra) in support of his submission that the matter should be dealt with by the TADA Court and not by this Court. He relied on paragraph 27 of the judgment in which the Supreme Court remanded some applications for bail to the Designated Court.
146. In that case a bunch of appeals were being considered together by the Supreme Court. One appeal was from an order passed by the High Court refusing to grant bail Under Section 439 of the Criminal Procedure Code. The other appeals were against orders passed by various Designated Courts refusing to grant bail.
147. It will appear from paragraph 27 of the judgment that the Supreme Court upheld the order of the High Court refusing bail. The orders passed by the Designated Courts were, however, set aside and the Supreme Court directed the Designated Courts to reconsider the said applications. It was in that context that the Supreme Court observed that if the Designated Courts found that the acts alleged do not fall within the purview of Section 3 or Section 4 of the Act, they could in exercise of powers Under Section 18 transfer the cases for trial to the Ordinary Criminal Courts.
148. These observations cannot be spelt out to mean that the Supreme Court held that the High Court has no jurisdiction under Article 226 to consider questions relating to the provisions of the TADA Act. Indeed, from paragraph 12 of the judgment it will appear that it was conceded by Counsel for the Government that the Constitutional remedy available to a citizen under Article 226 was not taken away.
149. Usman Bhai's case, therefore, is not an authority for the proposition that in view of Section 18 of the TADA Act, the High Court cannot or should not exercise jurisdiction under Article 226.
150. It appears to me that the submissions made by Mr. Ghosh cannot be said to be without any substance. It is no doubt true that the constitutionality of the statute has been challenged in the writ petition which cannot be gone into by the TADA Court Under Section 18 of the Act. Moreover, it is well settled that existence of alternative remedy cannot be a bar when the very jurisdiction of the authority passing the order has been challenged. In the instant case the order passed by the Designated Court taking cognizance has itself been challenged as without jurisdiction and illegal. It is not for the Designated Court to decide the said question when the Designated Court itself has passed the said order. Moreover, no preliminary point was taken earlier. The question of alternative remedy should have been taken at a preliminary stage and not after exhaustive hearing.
151. It has been strenuously contended that since appeal lies to the Supreme Court against every order not being an interlocutory order the High Court in writ petition should not interfere in the instant case.
152. What is an interlocutory order in terms of Section 19(1) of TADA Act has been explained by the Supreme Court in the decision in the case of Usmanbhai's case (supra). The Supreme Court in this connection while discussing the nature of interlocutory order observed in paragraph 24 of the said judgment AIR 1988 SC 933 as follows :-
24. At the conclusion of the hearing on the legal aspect, Shri Poti, learned counsel appearing for the State Government contended, on instructions, that an order passed by a Designated Court for grant or refusal of bail is not an "interlocutory order" within the meaning of Section 19(1) of the Act and therefore an appeal lies. We have considerable doubt and difficulty about the correctness of the proposition. The expression 'interlocutory order' has been used in Section 19(1) in contra-distinction to what is known as final order and denotes an order of purely interim or temporary nature. The essential test to distinguish one from the other has been discussed and formulated in several decisions of the Judicial Committee of the Privy Council, Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue. In V.C. Shukla v. State through C.B.I., . Fazal Ali, J. in delivering the majority judgment reviewed the entire case law on the subject and deduced therefrom the following two principles, namely, (i) that a final order has to be interpreted in contra-distinction to an interlocutory order; and (ii) that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties. It was observed that these principles apply to civil as well as to criminal cases. In criminal proceedings, the word 'judgment' is intended to indicate the final order in a trial terminating in the conviction or acquittal of the accused. Applying these tests, it was held that an order framing a charge against an accused was not a final order but an interlocutory order within the meaning of Section 11(i) of the Special Courts Act, 1979 and therefore not appealable. It cannot be doubted that the grant or refusal of a bail application is essentially an interlocutory order. There is no finality to such an order for an application for bail can always be renewed from time to time. It is however contended that the refusal of bail by a Designated Court due to the non-fulfilment of the conditions laid down in Section 20(8) cannot be treated to be a final order for it affects the life or liberty of a citizen guaranteed under Article 21. While it is true that a person arraigned on a charge of having committed an offence punishable under the Act faces a prospect of prolonged incarceration in view of the provision contained in Section 20(8) which places limitations on the power of a Designated Court to grant bail, but that by itself is not decisive of the question as to whether an order of this nature is not an interlocutory order. The Court must interpret the words 'not being an interlocutory order' used in Section 19(1) in their natural sense in furtherance of the object and purpose of the Act to exclude any interference with the proceedings before a Designated Court granting or refusing bail. Such an application for bail can always be renewed from time time. That being so, the contention advanced on behalf of the State Government that the impugned orders passed by the Designated Courts refusing to grant bail were not interlocutory orders and therefore appealable Under Section 19(1) of the Act, cannot be accepted.
153. By taking cognizance the proceeding does not come to an end nor the same is terminated thereby. The order taking cognizance cannot be a final order but must in the sense interpreted by the Supreme Court in Ushmanbhai's case to be an interlocutory order. In that view of the matter no appeal lies Under Section 19(1) of the TADA Act to Supreme Court. Consequently the contention with regard to alternative remedy of appeal to the Supreme Court does not lie in this instant case.
154. The question of nature of interlocutory order has also been considered by the Supreme Court in the case of V.C. Shukla v. State through C.B.I., . In the aforesaid decision by S.M. Fazal Ali with D.A. Desai and A.P. Sen, JJ. delivered majority judgment wherein it was held that the word 'interlocutory order' used in Section 397(2) of the Code relates to various stages of the trial namely appeal, inquiry, trial or any other proceeding. The object seems to be to cut down the delays in stages through which a criminal case passes before it culminates in an acquittal, discharge or conviction. Having regard to the very large ambit and range of the Code, the expression 'interlocutory order' would have to be given a broad meaning so as to achieve the object of the Act without disturbing or interfering with the fairness of the trial. The term 'interlocutory order' used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial because the bar contained in Section 397(3) of the Code would apply to a variety of cases coming up before the Courts not only being offences under the Penal Code but under numerous Acts. The revisional power of the High Court or of the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. The same, however, could not be said of the Special Courts Act which was meant to cover only specified number of crimes and criminals and the objective attained was quickest despatch and speediest disposal. , ; ; ; and , Expld. The dominant purpose of the Act is to achieve not only speedy determination but a determination with the utmost despatch. Therefore, the provisions of the Act must be interpreted so as to eliminate all possible avenues of delay or means of adopting dilatory tactics by plugging every possible loophole in the Act through which the disposal of the case may be delayed. It was for this purpose that a non obstante clause was put in Section 11 of the Act so as to bar appeals against any interlocutory order whether it is of an intermediate nature or is quasi-final. , Foll.
As the non obstante clause expressly excludes the provisions of the Code of Criminal Procedure, Courts cannot call into aid the provisions of Section 397(2) of the Code which would amount to frustrating the very object which Section 11 seeks to advance. The absence of revision is more than compensated by giving the accused a right of an appeal against any judgment or order of the Special Judge as of right and open on facts and law. The trial is held by a sitting High Court Judge who also would have the power of revision if he was sitting in a High Court. Therefore, it would not be in keeping with the dignity, decorum and status of the Special Judge to provide for an appeal even against such an order which he is supposed to pass with full application of mind and due deliberation.
The non obstante clause would have the effect of overriding and excluding the provisions of the Code. Therefore, Courts should exclude the statute concerned from consideration in the instant case "The Code" and should construe the words used according to their natural and ordinary meaning instead of referring to the statute which is sought to be excluded. , Applied.
In order to construe the term 'interlocutory' it has to be construed in contradistinction to or in constrast with a final order. In other words, (sic) 'not a final order' must necessarily mean an interlocutory order of an intermediate order. Thus, the expression 'interlocutory order' is to be understood and taken to mean converse of the term 'final order'.
An interlocutory order merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment. An order framing of the charge being an inter-medidate order falls squarely within the ordinary and natural meaning of the term 'inter-louctory order' as used in Section 11(1) of the Act.
The order of framing the charges is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction. It is true that if the Special Court would have refused to frame charges and discharged the accused, the proceedings would have terminated but that is only one side of the picture. The other side of the picture is that if the Special Court refused to discharge the accused and framed charges against him then the order would be interlocutory because the trial would still be alive.
155. On the same analogy order taking cognizance of an offence is an 'interlocutory order' since the proceeding is not put to an end thereby but continues, in different stages until the order of conviction or acquittal is passed. If, however, the Court refuses to take cognizance that would be final order and not an interlocutory order.
156. After the hearing was concluded the Supreme Court delivered two Judgments which are as follows: (i) State of Maharashtra v. Abdul Hamid Haji Mohammed and (ii) unreported decision in the case of Kartar Singh v. State of Punjab Writ Petition No. 1833 of 1984.
157. As already noted it was felt necessary that the aforesaid judgments delivered by the Supreme Court should be considered and the parties should be given opportunity to make their submissions again and accordingly the matter was placed for further hearing with the consent of the parties.
158. In this connection I may take note of the judgment and decision in the case of State of Maharashtra v. Abdul Hamid Haji Mohammed (supra). In the aforesaid decision the Supreme Court took into consideration the several incidents and or facts which took place on different dates.
159. From the facts recorded it appears that the city of Bombay was rocked by a series of bomb blasts on 12-3-1993 which killed 257 persons maimed another more than 700 persons and destroy property worth about Rs. 27 crores. These bomb blasts occurred in important Government and public sector buildings and stock exchange, Air India, Sahara International Airport, several five star hotels and busy commercial localities such as Zaveri Bazar, Katha Bazar and Century Bazar.; Petrol pumps adjoining important locations were also the target of those blasts. The bombay blasts were accompained by explosion of hand grenades in sensitive areas intended to incite communal violence which caused! riot in certain areas. These incidents were a part of carefully planned strategy calculated to terrorise the Governments in the State as well as at the Centre and to incite communal violence.
160. It was also recorded that during the investigation into these crimes that respondent Abdul Hamid was arrested on 18-4-1993. It is alleged that on the same day soon after his arrest, the respondent gave information which led to discovery of six Chinese AK-56 rifles and twelve magazines kept concealed in a gunny bag buried three - and a half fest deep in the compound of Picnic Guest House behind New Juhu Grand Hotel, Bombay which the respondent dug out from that place and handed over to the police. It was alleged that a large number of such rifles were smuggled into the country through the Porbunder Port along with other explosives, arms and ammunition, as a part of the conspiracy to create country-wide unrest and terror of which the Bombay bomb blasts were a Article In substance these were the allegations against the persons named as accused, including respondent Abdul Hamid, in the charge sheet dated 4-11-1993 filed in the Designated Court for trial of the accused persons for commission of offences under the TADA Act.
161. After arrest of the accsused as aforesaid on 18-4-1993 alleging commision of offences under the TADA Act, an application for his release on bail was filed in the Designated Court on 24-5-1993. During the pendency of that bail application the said Writ Petition (Criminal) No. 902 of 1993 was filed in the Bombay High Court under Article 226 of the Constitution challenging the resort to TADA Act for prosecution of the respondent. The High Court made a direction on 14-7-1993 to the Designated Court to dispose of respondent's bail application. On 7-8-1993 the Designated Court made the order rejecting respondent's bail application taking the view that the allegations against the respondent indicated prima facie the applicability of provisions of TADA Act. Thereafter on 4-11-1993 the charge- sheet was filed in the Designated Court. The High Court then heard the writ petition and by the impugned judgment dated 18-1-1994 came to the conclusion as aforesaid that the provisions of TADA Act are not attracted to the case of the respondent and accordingly the prosecution against the respondent in the Designated Court under TADA Act was quashed. The High Court, however, held that the respondent is liable to be prosecuted under the Arms Act 1959 and, therefore; the case against him be transferred to the Court of Session for taking cognizance of the offence punishable under the Arms Act. On this view, the High Court also directed release of the respondent on bail on terms indicated in its judgment. However, the High Court accepted the submission made on behalf of the State that important questions of law were involved for decision relating to the High Court's jurisdiction in such a matter and, therefore, it certified that the case is a fit one for appeal to the Supreme Court.
162. The Supreme Court considering the submissions of the parties took into consideration the question whether the High Court was empowered in the present case to invoke its jurisdiction under Article 226 of the Constitution to examine the correctness of the view taken by the Designated Court and to quash the prosecution of the respondent under the TADA Act. The Supreme Court in this connection observed and inter alia held as follows:-
163. It was submitted on behalf of the accused relying upon the decision of R.P. Kapur v. The State of Punjab reported in 3 SCR 388 : (1960 Cri LJ 1239) and State of Haryana v. Bhajanlal reported 1992 Supp (1) SCC 335 : 1992 Cri LJ 527 that in the facts of this case the High Court had such a jurisdiction since there is no accusation against the respondent in the chargesheet filed in the Designated Court which, if believed, must result in his conviction for an offence punishable under TADA Act. Supreme Court, however, observed inter alia as follows :-
We are not impressed by this argument of Shri Jethamalani. It is no doubt true that in an extreme case if the only accusation against the respondent prosecuted in the Designated Court in accordance with the provisions of TADA Act is such that ex facie it cannot constitute an offence- punishable under TADA Act, then the High Court may be justified in invoking the power under Article 226 of the Constitution on the ground that the detention of the accused is not under the provisions of TADA Act. We may hasten to say and that this can happen only in extreme cases which would be rare and that power of the High Court is not exercisable in cases like the present where it may be debatable whether the direct accusation made in conjunction with the attendant circumstances, if proved to be true is likely to result in conviction for an offence under TADA Act. The moment there is a debatable area in the case, it is not amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution and the gamut of the procedure prescribed under TADA Act must be followed namely raising the objection before the Designated Court and, if necessary challenging the order of the Designated Court by appeal in the Supreme Court as provided in Section 19 of TADA Act. In view of the express provision of appeal to the Supreme Court against any judgment, sentence or order not being an interlocutory order of a Designated Court. There is no occasion for the High Court to examine merits of the order made by the Designated Court that the Act applies. We have no doubt that in the present case wherein the High Court had to perform the laboured exercise of scrutinising the material containing the accusation made against the respondent and the merits of the findings recorded by the Designated Court holding that the provisions of TADA Act were attracted, there was sufficient indication that the writ jurisdiction of the High Court under Article 226 of the Constitution was not available. The ratio of the decisions of this Court in R.P. Kapur and Bhajan Lal on which reliance is placed by Shri Jethmalani, has no application to the facts of the present case. There was thus no justification for the High Court in the present case to exercise its jurisdiction under Article 226 of the Constitution for examining the merits of the controversy for quashing the prosecution of respondent Abdul Hamid in the Designated Court for offences punishable under TADA Act.
164. It may not be out place to mention in this context that the Supreme Court while making the aforesaid finding declined to enter into the merits of the order made by the TADA Court that the Act applies.
165. The principle that can be culled out from the aforesaid Supreme Court decision is that unless it can be shown ex facie that the offence comes within the purview of TADA Act the writ Court should not interfere.
166. The facts in the instant case are distinguishable. I have already noted that the police report and the charge-sheet do not indicate any offence Under Sections 3 and 4 of the TADA Act. Moreover, in the instant case the petitioner was originally charge-sheeted before the learned Magistrate, under the I.P.C. After the investigation proceeded to some extent the Sections 3 and 4 of the TADA Act were added to the charge-sheet on the basis of the prayer of the Public Prosecutor by the learned Magistrate and the case was sent to the Designated Court under the TADA Act.
167. I have already noted the manner in which the Designated Court took cognizance of the offences Under Sections 3 and 4 of the TADA Act, since the materials do not prima facie indicate any offence alleged to have been committed, it is open to the writ court to interfere under such circumstances.
168. In my view, the said judgment and decision in the case of State of Maharashtra v. Abdul Hamid Haji Mohammed (supra) does not lay down any new principle. The principle laid down in the case of R.P. Kapur v. The State of Punjab (supra) and State of Haryana v. Bhajanlal (supra) have only been reiterated. The Supreme Court applied the said principle laid down in the aforesaid decisions and rejected the contention of the accused writ petitioner.
169. In view of the deicsion of the Supreme Court in Kartar Singh's case (supra) it cannot be said that the Terrorist and Disruptive Activities (Prevention) Act, 1987 is ultra vires. The only section held to be ultra vires by the Supreme Court is Section 22 and the other provisons already challenged in the Supreme Court have been found to be legal and valid. Accordingly it is not necessary for me to make any finding on the said issue.
170. From the facts on record however, it appears to me that TADA Act has been wrongly applied in the case of the petitioner and the order taking cognizance by the Designated Court by its order dated June 14, 1993 was not proper legal and valid, for the reasons rioted hereinbefore and, as such, the same stands quashed and set aside.
171. Mr. Dipankar Ghosh, learned Advocate for the petitioner submitted at the conclusion of hearing that in the event the Court holds the TADA Act is not applicable in the case of the petitioner, the petitioner is entitled to bail in view of the fact that statutory period has expired. He has also submitted that the petitioner in that event cannot be illegally detained there being no such averment or prayer in the writ petition, I am not inclined to accept such contention of petitioner.
172. In my view it will be open to the petitioner to make any application for bail before the competent court in accordance with law and the said competent court will deal with the same in accordance with law.
173. This order, however, will not prevent the respondent-state to take steps for making any fresh application for sanction before the Commissioner of Police on the basis of fresh materials, if there be any, and accordingly to apply for taking of cognizance before the Designated Court on the basis of such fresh materials if the same is permissible and if the respondent is so advised in accordance with law.
174. Mr. Balai Roy learned Senior Advocate for the State prays for stay of operation of this judgment and order for three weeks. Mr. Pradip Ghosh learned Advocate for the petitioner opposes the said prayer. The prayer for stay made on behalf of the State is [allowed. Accordingly, there will be stay of operation of this judgment and order for three weeks.
175. Let plain copies of the operative part of this order be handed over to the learned Advocates for the parties after duly countersigning the same by the Assistant Registrar (Court). On their usual undertaking to apply for and obtain certified copy of the same and xerox copy of the judgment be supplied expeditiously on usual undertaking.