Kerala High Court
Sikkandhar Ali Khan vs The Sub Inspector Of Police on 10 December, 2010
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3961 of 2010()
1. SIKKANDHAR ALI KHAN, S/O.PAREETH,
... Petitioner
Vs
1. THE SUB INSPECTOR OF POLICE,
... Respondent
2. THE CIRCLE INSPECTOR OF POLICE,
3. THE DEPUTY SUPERINTENDENT OF POLICE,
4. THE DIRECTOR GENERAL OF POLICE,
For Petitioner :SRI.SUNNY MATHEW
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :10/12/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
CRL.M.C.No. 3961 & 4285
OF 2010
===========================
Dated this the 10th day of December,2010
ORDER
Petitioner in Crl.M.C.3961/2010 is accused No.16 and the petitioner in Crl.M.C.4285/2010 is accused No.11 in Crime 704 of 2010 of Muvattupuzha Police Station registered under Annexure 1 F.I.R for the offences under sections 143, 147, 148, 120B, 341, 427, 323, 324, 326, 506(ii) and 307 read with section 149 of Indian Penal Code and Section 3 of Explosive Substances Act. Crl.M.C.3961/2010 is filed under section 482 of Code of Criminal Procedure to quash Annexure A2 report submitted by Circle Inspector of Police, Muvattupuzha who was then investigating the crime incorporating Section 15 read with section 16, 18, 18B, 19 and 20 of Unlawful Activities (Prevention) Act,1967.
Crl.M.C.3961 & 4285 of 2010 2 Crl.M.C.4285/2010 is also filed under section 482 of Code of Criminal Procedure to quash Annexure B report (which is Annexure A2 in Crl.M.C.3961/2010) and Annexure C report submitted by the same investigating officer to extend the period of detention as provided under the proviso to Section 43D(2)(b) of the Unlawful Activities (Prevention) Act and the orders passed therein.
2. T.J. Joseph was a Professor of Newman College, Thodupuzha. He had set Malayalam question paper for internal examination of B.Com Degree. There was allegation that one of the questions was ridiculing or insulting Prophet Muhammad. There was protest from several corners. Sub Inspector of Police, Muvattupuzha registered Crime 327/2010 of that Police Station, under section 153A and 295A of Indian Penal Code on 26.3.2010, against the Professor. He surrendered before the investigating officer and produced before the Magistrate. He was remanded to judicial custody and later released on bail. There was protest from Crl.M.C.3961 & 4285 of 2010 3 various religious fundamentalist group against Professor Joseph. Prosecution case is that accused who are leaders and activists of Population Front of India and its political wing Social Democratic Party of India conspired to give a suitable set back to the said Professor. Pursuant to the conspiracy, meticulous plans were drawn to form separate groups to undertake specified assignments to perpetuate the evil plan. On 4.7.2010 at about 8 a.m while Professor Joseph along with his sister Sr.Stella and mother were returning in a Wagon R Car after attending Sunday mass at Nirmala Matha Church, one group comprising seven accused armed with deadly weapons like small axe, chopper and explosive substances came in a Maruti Omni Van displaying registration No.KL-07/AD 7201, a false registration number, though the registration number was KL-07/AH 8768. They intercepted the Wagon R Car, near to the house of Joseph, the place they were waiting. They smashed the window panes of the Wagon R Car. One among the accused Crl.M.C.3961 & 4285 of 2010 4 inflicted cuts on the right palm of the Professor with a small axe causing amputation of his right palm, evidently for the reason that with that hand Professor prepared the objectionable question paper. Several cut injuries were inflicted on various parts of the body of Professor Joseph. His sister was also manhandled and was wrongfully prevented from helping the Professor. The mother aged more than 80 years was also not spared. Though Salomi, wife of the Professor and Midhun, the son rushed to the scene of occurrence, they were threatened and intimidated by throwing bombs causing explosion and smoke. Though Midhun went to his father to help him, a cut injury was inflicted on his back. They lifted Midhun and threw him into nearby compound which lies at a lower level of more than four metres causing injuries to Midhun. Hearing the sound of explosion and the hue and cry though local people started rushing, all the assailants escaped from the scene in the Maruti Van, after throwing the severed palm of the Crl.M.C.3961 & 4285 of 2010 5 Professor to into a nearby compound. Getting information Police headed by the Sub Inspector of Police, rushed to the spot. By that time Professor was shifted to nearby Nirmala Hospital by his son. The Sub Inspector of Police recovered the amputated palm from the nearby compound and transferred it to the hospital. It is thereafter Crime 704/2010 was registered. It is based on the investigation, Annexure A2(Annexure B) report was submitted before the Magistrate incorporating the offences under the Unlawful Activities (Prevention) Act,1967. In view of the incorporation of the offences under the Unlawful Activities (Prevention) Act, as provided under section 43D(2)(b) Annexure C report was submitted as the proviso thereto enables the investigating officer to get the period of remand extended beyond the period of 90 days upto 180 days. Learned Magistrate recording satisfaction, extended the period of remand beyond the period of 90 days as sought for in Annexure C report. In both Criminal Miscellaneous Petitions, Crl.M.C.3961 & 4285 of 2010 6 the report submitted by the Circle Inspector of Police who was investigating the case, incorporating the offences under the Unlawful Activities (Prevention) Act is challenged. Though in Crl.M.C.4285/2010 in addition, accused No.11 had challenged Annexure C remand report and the orders passed therein, learned senior counsel submitted that as per order in BA 5134, 5795,5824,5940, 5950, 6017 and 6186 of 2010 as well as B.A, 4826, 4881, 5080 and 5192 of 2010 filed by the petitioners along with accused 12 and 13, this court has already found that Magistrate has no jurisdiction to pass an order under the first proviso inserted by section 43D(2)(b) of the Unlawful Activities (Prevention) Act and it is only the Sessions Court concerned, which has jurisdiction to pass an order and the Assistant Public Prosecutor in charge of the court of Judicial First Class Magistrate has no locus standi to submit a report for extension of the period of remand, under the proviso to Section 43D(2)(b) and Crl.M.C.3961 & 4285 of 2010 7 it is only the Public Prosecutor who is competent to file a report and that too only to the Sessions Court having jurisdiction and directed that the Public Prosecutor attached to the Sessions Court, Ernakulam shall file the necessary reports under section 43D(2)(b) of the Unlawful Activities (Prevention) Act and it is for the Sessions Court to consider the same and pass orders and in such circumstances, it is not necessary to consider the additional relief sought for in Crl.M.C.4285/2010. When an offence under the Unlawful Activities (Prevention) Act is involved, as provided under section 43 of the Act, only an officer not below the rank of Deputy Superintendent of Police, who is competent to investigate the offence and not the Circle Inspector of Police, who submitted Annexure A2 report who is incompetent to incorporate an offence under the Act.
3. I cannot agree with the submission. When the case was registered only for the offences under Indian Penal Code and Explosive Substances Act, the Crl.M.C.3961 & 4285 of 2010 8 Circle Inspector of Police who was the investigating officer is definitely competent to investigate the said offences. When the said investigating officer, on investigation, found out that the offences committed include not only offences under the Indian Penal Code but also under the Unlawful Activities (Prevention) Act, he is definitely competent to file a report before the concerned Magistrate intimating that such an offence is attracted and therefore the said offence is also incorporated and is being investigated. True, once an offence under the Act is incorporated, the case shall necessarily be investigated by a competent officer as provided under section 43 of the Unlawful Activities (Prevention) Act,1967. It is not disputed that the case is now being investigated after incorporation of the offence under the Unlawful Activities (Prevention) Act, and in the light of the findings of this court in the Bail Applications, the case is being investigated by a competent officer. Hence Crl.M.C.3961 & 4285 of 2010 9 the only question is whether the offences under the Unlawful Activities (Prevention) Act, 1967, is attracted or not.
4. Before considering the facts and the law, one aspect is to be borne in mind. Case was registered for the offences under the Indian Penal Code and the Explosive Substances Act. It is based on the materials collected during investigation, getting satisfied that the offences involved are serious and include offences under the Unlawful Activities (Prevention) Act, 1967 also, Annexure B report was submitted. Investigation is at the nasal stage. The challenge against the incorporation of the offence under the provisions of Unlawful Activities (Prevention) Act is to be appreciated in this background.
5. The argument of the learned senior counsel appearing for the petitioner in Crl.M.C.4285/2010 and the learned counsel appearing for the petitioner in Crl.M.C.3961/2010 is that, as is clear from Annexure A1 F.I.R the incident occurred Crl.M.C.3961 & 4285 of 2010 10 not on account of any personal animosity against Professor Joseph or because he belongs to another religion but only because he allegedly published a blasphemous matter insulting the Prophet. Therefore the act was not a simple criminal act against an individual but an attack for an act, which the accused believed was blasphemous. It is contended that even if the said prosecution case is accepted, the case could be successfully and properly handled by the State Police by following the procedure provided under the Code of Criminal Procedure and the ordinary law and does not require the incorporation of stringent provisions of Unlawful Activities (Prevention) Act. It is argued that though terrorism is not defined under the Unlawful Activities (Prevention) Act, the decisions of the Honourable Supreme Court on the previous repealed Act, TADA and POTA are relevant guidelines especially when "terrorist act" as provided under section 15 of the Unlawful Activities (Prevention) Act 1967 is identical to Crl.M.C.3961 & 4285 of 2010 11 the "terrorist act" provided under section 3 of TADA and to attract terrorist act under section 15, there should be an allegation that there was a requisite intention of threat to the unity, integrity, security and sovereignty of India or to strike terror in the people or any section of the people in India and even if the act alleged against the accused may have caused shock in the conscience of the people, such shock cannot be equated to terrorizing the people as at no part of the State life of the society was affected due to the incident. It is also argued that causing some disturbance of law and order or public order, can never be termed as terrorist activity and when the criminal activity could be handled by the Police and the crime could be investigated by the Kerala State Police Force, incorporation of the stringent provisions of Unlawful Activities (Prevention) Act is illegal. It is also contended that though incident of serious nature, where even while attending the court murder had taken place and Crl.M.C.3961 & 4285 of 2010 12 hands of the deceased were severed, in none of those cases provisions of Unlawful Activities (Prevention) Act is incorporated and the said provision is incorporated in the crime only because the accused belong to the minority community. It is contended that when the alleged acts do not attract Section 15 of the Unlawful Acitivities (Prevention) Act, incorporation of the offences under the said Act and its investigation under Annexure A2 report is to be quashed. Learned counsel relied on the decisions of the Apex Court in Prakashkumar v. State of Gujarat (2005(2) SCC
409), Hitendra Vishnu Thakur and others v. State of Maharashtra (1994(SC 2623), Ravindra Shantaram Sawant v. State of Maharashtra (2002(5) SCC 604), Bonkya v. State of Maharashtra ( 1995(6) SCC 447), and Madan Singh v. State of Bihar ( 2004(4) SCC
622), Girdhari Parmanand Vadhava v. State of Maharashtra(1996(1) SCC 179), Sagayam v. State of Karnataka (2000 Crl.L.J. 3182) and argued that in Crl.M.C.3961 & 4285 of 2010 13 the light of the decisions, Annexure A2 report can only be quashed.
6.Deputy Superintendent of Police, Muvattupuzha who is now investigating the crime, filed a counter affidavit disclosing the details of the investigation. The counter affidavit shows that on getting information of the incident all the police personnel in and adjacent district of the Ernakulam Rural were alerted by the higher authorities and consequently a white Omni Van bearing reg. No.KL- 07/AH 8768 was intercepted by the Sub Inspector of Police, Perumbavoor at Vattakkattupady on Muvattupupuzha Perumbavoor road by 9-25 a.m. First accused Jaffer was driving the vehicle. On verification getting suspicious on the statements of the driver, the Sub Inspector inspected the van and found that there were blood stains inside and outside of the Van and also broken glasses. The van was seized and the first accused was taken into custody. On questioning, part of the incident was unveiled. Based on the investigation, 24 Crl.M.C.3961 & 4285 of 2010 14 accused were arrested later. According to the Dy.Superintendent of Police, investigation revealed that after the question paper issue involving the Professor has arisen, PFI and SDPI activities conducted violent protest march to Newman College, Thodupuzha. Eventhough Professor Joseph was brought before the court to face the consequences, the leaders and activities of those parties were intolerant. They conspired to take revenge by attacking his house, either to kill him or to amputate his right palm with which the Professor prepared the question paper. On 28.3.2010 the working committee meeting of SDPI held in an auditorium, conspired together and prepared the plan to implement the action against the Professor. Fifth accused was given the leadership. Different specific duties were assigned to the leaders like selecting suitable manpower , collecting details of the professor and his family, watching movements of the Professor and family, movements of police, preparing route sketch, Crl.M.C.3961 & 4285 of 2010 15 collecting sufficient communication devices, suitable hideouts, collecting weapons and collecting money for the expenses etc. After the preliminary preparations, fifth accused constituted different teams assigning separate work for each group. Some were given the charge for removing the vehicle used in the commission of the offences, other group was entrusted the work to dispose the bloodstained dresses worn by the operation team, another group was assigned the work of disposing weapons and another group for collecting the operation team, another team to prepare the hideouts etc. It is alleged that even separate teams were prepared for meeting the legal requirements and also for contacting the police authorities. It is alleged that there were even separate group for surrendering before the police, instead of the actual offenders so as to mislead the police. It was also disclosed that during investigation raids were conducted at different places and the said searches and seizure unearthed Crl.M.C.3961 & 4285 of 2010 16 anti-national fundamentalist ideas of the groups and 19 cases were registered in Ernakulam Rural District alone and those accused are all either PFI or SDPI leaders or activists. It is also contended that the details of the terrorists activity was brought to the notice of this court while hearing Bail Applications 4826, 4881, 5080 and 5192 of 2010 and Bail Applications were dismissed. It is alleged that result of violence was not merely physical inflicted on the victims but mental and not only to the victims but also to the society with an intention to have psychological effects in the society as a whole. The object of the activity is to disturb the religious harmony and the tranquillity of the society by creating sense of fear and insecurity in the society at large and in such circumstances offences under Unlawful Activities (Prevention) Act was incorporated. It is contended that though the organizations are not declared terrorist organizations, the criminal acts done reveals that it is a terrorists act and in Crl.M.C.3961 & 4285 of 2010 17 such circumstances Annexure A2 report was filed. Learned Additional Director General of Prosecution relied on the decisions of the Honourable Supreme Court in Redaul Hussain Khan v. National Investigation Agency (2010) 1 SCC 521, Mohd.Iqbal M.Shaikh v. State of Maharashtra (1998) 4 SCC 494), State of Andhra Pradesh v. S.Eshar Singh (AIR 1993 SC 1374) and Directorate of Enforcement v. Deepak Mahajan and another (A.I.R.1994 SC 1775).
7. The Unlawful Activities (Prevention) Act 1967(hereinafter referred to as the Act) was enacted to provide for, more effective prevention of certain unlawful activities of individuals and associations and for connected matters connected therewith. By Amendment Act 29 of 2004, the object of the Act was widened, for dealing with terrorists activities. Terrorism is not defined under the Act. The terrorist act is defined under Clause (k) of Section 2 "as has the meaning assigned to it in Section 15 and the expressions "terrorism" and Crl.M.C.3961 & 4285 of 2010 18 "terrorist" shall be construed accordingly". Terrorist gang is defined under clause (l) means any association, other than terrorist organisation, whether systematic or otherwise, which is concerned with, or involved in, terrorist act. Terrorist organization is defined under clause (m) means an organization listed in the Schedule or an organization operating under the same name as an organization so listed. Unlawful activity is defined under clause (o) as "in relation to an individual or association means any action taken by such individual or association(whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise) (i) which is intended, or supports any claim, to bring about, on any ground whatsoever the cession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty Crl.M.C.3961 & 4285 of 2010 19 and territorial integrity of India or (iii) which causes or is intended to cause disaffection against India. Unlawful association is defined under clause
(p) as means any association which has for its object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity, or of which the members undertake such activity or which has for its object any activity which is punishable under section 153A or section 153B of Indian Penal Code or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity. Chapter II deals with unlawful associations. Chapter III deals with Offences and penalties. Chapter IV Punishment for terrorist activities. Chapter V Forefeiture of proceeds of terrorism. Chapter VI deals with Terrorist organizations. Section 15 to 23 are included in Chapter IV, under the heading Punishment for terrorist activities. While section 15 deals with terrorist act, section 16 provides the Punishment for terrorist act. Section 17 deals Crl.M.C.3961 & 4285 of 2010 20 with Punishment for raising funds for terrorist act, Section 18 deals with punishment for conspiracy, Section 19 deals with punishment for harbouring, Section 20 deals with for being member of terrorist gang or organization. Section 21 provides punishment for holding proceeds of terrorism. Section 22 provides punishment for threatening witness and Section 23 enhanced penalties. As provided under clause (k) of sub section (1) of Section 2, terrorist act has the meaning assigned to it in Section 15 and the expressions "terrorism" and "terrorist" shall be construed accordingly. Section 15 reads:-
"15. Terrorist Act- whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the Crl.M.C.3961 & 4285 of 2010 21 people in India or in any foreign country-
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause-
(i) death of, or injuries to, any person or persons or
(ii)loss of, or damage to, or destruction of, property, or
(iii) disruption of any supplies or services essential to the life of the community in India Crl.M.C.3961 & 4285 of 2010 22 or in any foreign country; or
(iv)damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other Crl.M.C.3961 & 4285 of 2010 23 act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act.
Explanation:- For the purpose of this section, public functionary means the constitutional authorities and any other functionary notified in the official Gazette by the Central Government as a public functionary."
Therefore the following ingredients are necessary to constitute a terrorist act. The act must be done(1) with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or (2) with intent to strike terror or likely to strike terror in the people Crl.M.C.3961 & 4285 of 2010 24 or any section of the people in India or in any foreign country- (a) by using bombs, or (b) dynamite or (c) other explosive substances or
(d) inflammable substances or (e) firearms or(f) other lethal weapons or (g)poisonous or noxious gases or (h) other chemicals or (i)by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature. It must be to cause or likely to cause (i) death of, or injuries to any person or persons (ii) loss of , or damage to, or destruction of, property; or(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country or (iv) to cause damage or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of Government of India, any State Government or any of their agencies. It could also be a terrorist act if it overawes by means of criminal force or attempt to do so or causes Crl.M.C.3961 & 4285 of 2010 25 death of any public functionary or attempts to cause death of any public functionary or detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act.
8. Section 3 (1) of TADA reads:-
3. Punishment for terrorist acts.-- (1) Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or Crl.M.C.3961 & 4285 of 2010 26 poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act."
When Section 3 provides that to constitute a terrorist act there should be an intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different Crl.M.C.3961 & 4285 of 2010 27 sections of the people, Section 15 provides the intention to threaten or likely to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people in India or in any foreign country. Therefore when section 3 provides the intent to overawe the Government as by law established, under section 15 the intent is to threaten unity, integrity, security or sovereignty of India. True, clause (b) of Section 15 provides that by means of criminal force or show of criminal force do or attempts to do or causes death of any public fuctionary or attempts to cause death of any public functionary would also be committing a terrorist act. Under section 3 of TADA and section 15 of the Act, it is provided that using bombs dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature is necessary. In Crl.M.C.3961 & 4285 of 2010 28 Section 3 the acts must be done in such a manner as to cause, or as is likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act. Scope of Section 15 is widened by providing destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any other agencies. Thus to attract section 15, prosecution should have a case that the accused with intent to threat unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people in India or in any foreign country, while under section 3, the intention is to strike terror in any section of the people or to alienate any Crl.M.C.3961 & 4285 of 2010 29 section of the people or to adversely affect the harmony amongst different sections of the people.
9. The Honourable Supreme Court in Hitendra Vishnu Thakur's case (supra) interpreting section 3 of TADA held that unless the act complained of falls strictly within the letter and spirit of Section 3(1) of TADA and is committed with the intention as envisaged by that section by means of weapons as are enumerated therein with the motive as postulated thereby,an accused cannot be tried or convicted for the offence under section 3(1) of TADA. Their Lordships held that terrorism has not been defined in the Act and it is not possible to give a precise definition of "terrorism" or lay down what constitutes "terrorism". It was held:-
"7. It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the Crl.M.C.3961 & 4285 of 2010 30 victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or "terrorise" people and the society and not only those directly assaulted, with a view to disturb even tempo, peace and tranquillity Crl.M.C.3961 & 4285 of 2010 31 of the society and create a sense of fear and insecurity. A `terrorist' activity does not merely arise by causing disturbance of law and order or of public order. The fall out of the intended activity must be such that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law. Experience has shown us that `terrorism' is generally an attempt to acquire or maintain power or control by intimidation and causing fear and helplessness in the minds of the people at large or any section thereof and is a totally abnormal phenomenon. What distinguishes `terrorism' from other forms of Crl.M.C.3961 & 4285 of 2010 32 violence, therefore, appears to be the deliberate and systematic use of coercive intimidation. More often than not, a hardened criminal today takes advantage of the situation and by wearing the cloak of `terrorism', aims to achieve for himself acceptability and respectability in the society because unfortunately in the States affected by militancy, a `terrorist' is projected as a hero by his group and often even by the misguided youth. It is therefore, essential to treat such a criminal and deal with him differently than an ordinary criminal capable of being tried by the ordinary courts under the penal law of the land. Even though the crime committed by a Crl.M.C.3961 & 4285 of 2010 33 `terrorist' and an ordinary criminal would be overlapping to an extent but then it is not the intention of the Legislature that every criminal should be tried under TADA, where the fall out of his activity does not extend beyond the normal frontiers of the ordinary criminal activity. Every `terrorist' may be a criminal but every criminal cannot be given the label of a `terrorist' only to set in motion the more stringent provisions of TADA. The criminal activity in order to invoke TADA must be committed with the requisite intention as contemplated by Section 3(1) of the Act by use of such weapons as have been enumerated in Section 3(1) and which cause or Crl.M.C.3961 & 4285 of 2010 34 are likely to result in the offences as mentioned in the said section."
Their Lordships in Madan Singhs's case (supra) held:-
"19. Terrorism is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised and orderly society. "Terrorism"
though has not been separately
defined under the TADA Act there
is sufficient indication in
Section 3 itself to identify what it is by an all-inclusive and comprehensive phraseology adopted in engrafting the said provision, which serves a double purpose as a definition and punishing provision Crl.M.C.3961 & 4285 of 2010 35 nor is it possible to give a precise definition of "terrorism"
or lay down what constitutes "terrorism". It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary Crl.M.C.3961 & 4285 of 2010 36 penal law of the land and its main objective is to overawe the Government or disturb the harmony of the society or "terrorise"
people and the society and not only those directly assaulted, with a view to disturb the even tempo, peace and tranquillity of the society and create a sense of fear and insecurity."
Reiterating the principle laid down in Hitendra Vishnu Thakur's case (supra) their Lordships in Bonkya's case (supra) held on the facts of that case that prosecution did not led any evidence to show that the attack by the accused was intended to strike terror in a section of the society namely Wadar community and there is nothing on record to disclose as to which community the accused belong to or what grievance they had against Wadar community and by no stretch of imagination it could Crl.M.C.3961 & 4285 of 2010 37 be said that the accused had an intention to strike terror much less in a particular section of that society when they entered into an altercation at the video parlour or even when they went after the complainant party and opened an assault on them. It was therefore held that Section 3(1) of TADA Act is not attracted.
10. Constitution Bench in Prakash Kumar's case (supra) also reiterated the scope of Section 3(1) explained in Hitendra Vishnu Thakur's case(supra) and held that stringent laws are made for the purpose of achieving its objectives. This being the intendment of the legislature the duty of the court is to see that the intention of the legislature is not frustrated. If there is any doubt or ambiguity in the statutes, the rule of purposive construction should be taken recourse to to achieve the objectives. It was held:-
"11. Thus, these types of
extraordinary laws are made to
Crl.M.C.3961 & 4285 of 2010 38
contain the extraordinary
situation by providing harsh,
drastic and stringent
provisions, prescribing special procedure, departing from the procedure prescribed under the ordinary procedural law 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. The preambles and Statements of Objects and Reasons as referred to above make it manifestly evident that such extraordinary Act was made to deal with extraordinary Crl.M.C.3961 & 4285 of 2010 39 situations for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto."
In Girdhari Parmanand Vadhava's case (1996) 11 SCC 179(supra) the Honourable Supreme Court held that crime even if perpetrated with extreme brutality may not constitute "terrorist activity" within the meaning of Section 3(1) of TADA and or constituting "terrorist activity" under Section 3(1), the activity must be intended to strike terror in people or a section of the people or bring about other consequences referred to in the said Section and terrorist activities were not confined to unlawful activity or crime committed against an individual or individuals but it aims at bringing about terror in the minds of people or section of people disturbing public order, public peace and Crl.M.C.3961 & 4285 of 2010 40 tranquillity, social and communal harmony, disturbing or destabilising public administration and threatening security and integrity of the country. In S.Eshar Singh's case (supra) the Honourable Supreme Court considered the findings of the Designated Court under TADA as discharging the accused of the offences under the TADA was challenged before the Honourable Supreme Court. Their Lordships held:-
"3.We have perused the entire charge-sheet and the material documents filed along with the charge-sheet and we find that there are number of allegations which prima facie attract the provisions of the TADA Act. It appears that the learned trial Judge inferred that the investigating agency had come to the conclusion that the accused had a personal grudge Crl.M.C.3961 & 4285 of 2010 41 against the deceased but the allegations are to the effect that the main object underlying the alleged crime was to propagate pro- Khalistan cult among Sikh community and to organise a force threatening the Government with dire consequences under the pretext of championing the cause of Sikh community. Therefore, the finding of the trial court that prima facie the provisions of TADA Act are not attracted, is clearly wrong. We do not want to go into further details and make any observations inasmuch as the trial is still pending and the learned counsel appearing for the respondents also requested us not to make any such observations Crl.M.C.3961 & 4285 of 2010 42 which may tend to influence the trial Judge."
The Honourable Supreme Court Mohs.Iqbal M.Shaikh's case (supra)(1998) 4 SCC 494) considering the decision in Hitendra Vishnu Thakur's (supra)case held:-
"7. The expression "terrorist act" has not been defined and, on the other hand, Section 2(h) stipulates that it would have the same meaning as has been assigned to it in sub-section (1) of Section 3. The expression "terrorism" has not been defined under the Act and as has been held by this Court, in the case of Hitendra Vishnu Thakur v.
State of Maharashtra it is not possible to give a precise definition of terrorism or to lay Crl.M.C.3961 & 4285 of 2010 43 down what constitutes terrorism. But the Court has indicated in the aforesaid decision that it may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. It has also been stated in the aforesaid decision that if the object of the activity is to disturb harmony of the society or to terrorise people and the society with a view to disturb even the tempo, tranquillity of the society, and a sense of fear and Crl.M.C.3961 & 4285 of 2010 44 insecurity is created in the minds of a section of the society or society at large, then it will, undoubtedly, be held to be a terrorist act. The question, therefore, does not really boil down to an examination as to whether for the activities, under the normal criminal law, the accused persons can be punished but to examine the real impact of such gruesome and atrocious activities on the society at large or at least on a section of the society. If the case in hand is examined from the aforesaid standpoint, on the facts that shortly after the demolition of the Babri Masjid at Ayodhya, a Crl.M.C.3961 & 4285 of 2010 45 communal riot erupted in Mumbai and during that period in the locality in question which was predominantly occupied by Muslims, a chawl occupied by Hindus who were in minority was set to fire by the people belonging to the rival community and on account of such fire, several people were burnt alive, it is difficult to accept the contention of Mr Jain that the activities do not fall within the ambit of TADA. In our considered opinion, judging from the atrocity of the activities and judging from the sensitive and tense atmosphere prevailing in the town under which the acts Crl.M.C.3961 & 4285 of 2010 46 were perpetrated resulting ultimately in the death of several persons, the conclusion becomes irresistible that such activities had far-reaching consequences and it affects the society at large and the even tempo had been greatly disturbed and as such the provisions of the Act get attracted to such activities."
11. The argument of the learned senior counsel appearing for the petitioners is that the case does not involve any act which was allegedly committed either with an intent to threaten the unity , integrity, security or sovereignty of India or to strike terror in the people or in any section of the people or in any foreign country and if at all it could only be the reaction of the culprits to an action on the part of an individual, who according Crl.M.C.3961 & 4285 of 2010 47 to them had done a blassphemous act. The attack against the victim professor was only against him and not against his community and cannot be interpreted as a terrorist act and therefore the incorporation of the stringent provisions of the Unlawful Activities (Prevention) Act is only to deny the accused the benefits provided under the Code of Criminal Procedure and when there is no basis for incorporation of the offence under the Act, Annexure B report is to be quashed.
12.Learned Additional Director General of Prosecution pointed out that this court had occasion to consider the question whether the acts alleged against the accused attracts the terrorists act as provided under section 15, in Bail Applications 5134/2010 and connected cases and the learned single Judge had perused the Case Diary and found that the attack against Professor is a terrorism Act. It was pointed out that investigation reveals that funds were flown from foreign countries for perpetrating the plan and Crl.M.C.3961 & 4285 of 2010 48 also to aid the accused to escape from the clutches of law by providing hideouts and providing necessary amenities and it reveals a deep conspiracy to disrupt the unity and integrity of India and in such circumstances, at this stage when the case is being investigated, Annexure B report may not be quashed. Learned Additional Director General of Prosecution also made available the Case Diary which runs to several volumes.
13. On perusal of the Case Diary, I cannot agree with the submission of the learned counsel appearing for the petitioners that the act committed against Professor Joseph was an ordinary criminal act. It is definitely implemented after a conspiracy and that too with meticulous planning. The materials collected during investigation shows that before the criminal act was committed on that fateful Sunday on 4.7.2010, plan was hatched and works were entrusted to different groups to implement the respective duties assigned to each groups. The work of implementing the overt act, was Crl.M.C.3961 & 4285 of 2010 49 assigned to one group. Another group was assigned the work of finding out proper persons to implement the same. Another group was constituted to gather the necessary finance. Another group to arrange transport, another to destroy the evidence, another group to provide shelter and hideout after the gruesome act. It also reveals that funding for the implementation of the plan has its source from foreign countries. When the entire facts are thus appreciated in the proper perspective, it cannot be said that the act was directed against Professor Joseph alone. It was definitely a message to the general public as to what the group could and would do, if something is done against the wishes of that group or which the group does not agree. There is a deep conspiracy behind the attack. Definitely the question whether the intention is to divide the community on religious lines is also a matter to be properly investigated. The submission of the Additional Director General of Prosecution that even materials indicating that the group Crl.M.C.3961 & 4285 of 2010 50 intends to follow the heinous method being adopted by the Taliban, as materials of Taliban showing how they anihilate persons was used for the purpose of training, is a serious matter which shall necessarily be properly investigated. At this juncture, the following observations of the Honourable Supreme Court in Ravindra Shantaram Sawant v. State of Maharashtra (2002) 5 SCC 604) is to be born in mind.
"64. When a dastardly act is sought to be executed in such a bold and daring manner, what is the message which the accused intends to convey to the ordinary people of this country? The message is that obedience to law is irrelevant. People must obey the dictates of the law-breakers. Neither the courts nor the police force can give them any protection Crl.M.C.3961 & 4285 of 2010 51 for it is the right of the criminals to command habitual obedience from the citizens of this country. The State has lost its supremacy, in any event, its subjects must disregard the code of conduct established by law and must obey the dictates of those for whom law is meaningless. If they fail to do so they shall be dealt with in the same manner as the victim in the instant case, notwithstanding the fact that he was under police protection, and the incident was being witnessed by a large number of persons within the court premises. Such activities have the effect of undermining the very authority of Crl.M.C.3961 & 4285 of 2010 52 the State and have a terrorizing effect on those who witness such an incident, and those who come to know of it. The terror, fear and panic which they suffer is unfathomable and tend to completely demoralize the ordinary man in the street. The blatant manner in which the plan was executed in the instant case leaves no manner of doubt that the intention of the perpetrator was not merely to kill the victim, but also to send a terrorising message to the people in general, so that there was no defiance of their command in future. An attempt was also made on the lives of three policemen which reinforces the Crl.M.C.3961 & 4285 of 2010 53 conclusion that the intention was to strike terror and the killing was attempted to achieve that objective. We have therefore no doubt, that the facts proved do establish the commission of offences under TADA. No interference with the sentence passed will be justified in the facts of this case."
14. On going through the Case Diary and appreciating the materials collected during investigation and considering the nature of the commission of the dastardly act and the attending circumstances, it is clear that the crime committed cannot be tackled as an ordinary criminal acitivity. The intended extent and reach of the criminal acitivity travels beyond the gravity of mere attack against an individual. It transcends the frontiers of the locality and may even Crl.M.C.3961 & 4285 of 2010 54 challenge the very integrity and sovereignty of our country and its democratic polity. Hence I find that it is not in the interest of justice to quash Annexure B report incorporating the offences under the Unlawful Activities (Prevention) Act at this stage and thereby thwart a proper investigation as sought for by the petitioners. The materials collected during investigation warrants a proper and thorough investigation on all aspects of the case so that all the culprits could be brought for trial.
Petitions are therefore dismissed.
M.SASIDHARAN NAMBIAR JUDGE tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT SEPTEMBER,2006