Madras High Court
A. Sundaram And Etc. vs Director Of Central Bureau Of ... on 19 July, 1991
Equivalent citations: 1992CRILJ3136
Author: Pratap Singh
Bench: Pratap Singh
ORDER
1. The accused in Cr. No. 9 of 1991 have filed these petitions under S. 482, Criminal Procedure Code praying for direction to the respondent to permit the petitioners to be interviewed by their advocate.
2. Brief facts are; The respondent has registered the case in Crime No. 9 of 1991 in connection with the murder of former Prime Minister Mr. Rajiv Gandhi and 15 others. Originally the case was registered for offences under sections 302, 307 and 326, IPC and S. 3 and 5 of the Explosives Act. Later, on 31-5-1991; offence under S. 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 was also added. Then again, on 12-7-1991, Sections 4 and 5 of the above Act were added as offences committed. A. Sundaram, the petitioner in Crl. O.P. 5830 of 1991 was arrested on 2-7-1991 and produced before the Chief Judicial Magistrate, Chingleput. Porarivalan, the petitioner in Crl. O.P. 5831 of 1991 was arrested on 18-6-1991 and produced before the Chief Judicial Magistrate Chingleput. Thje Chief Judicial Magistrate has remanded the petitioners and had granted police custody for the petitioners for 30 days from the respective dates of production before him. Now they are kept under the custody of the respondent. In the above back drop, the petitioners have come forward with this petition under S. 482, Criminal Procedure Code praying for direction to the respondent to permit the petitioners to be interviewed by their advocates.
3. Mr. S. Doraisamy, the learned counsel appearing for the petitioners relied upon S. 303, Criminal Procedure Code (which I shall hereinafter refer to as "the Code") and Art. 22(1) of the Constitution of India for putting forth the claim of the petitioners to be interviewed by their advocate. Section 303 Criminal Procedure Code reads as follows :
"303. Right of person against whom proceedings are instituted to be defended. - Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a Pleader of his choice."
Article 22(1) of the Constitution of India reads as follows :
"22(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he denied the right to consult, and to be defended by, a legal practitioner of his choice."
Article 22(1) is in part III of the Constitution of India whereunder Fundamental Rights of a citizen of India and enumerated.
4. Mr. S. Doraisamy, the learned counsel contended that by virtue of S. 303 of the code and by virtue of Art. 22(1) of the Constitution of India, the petitioners are entitled to get the direction, as prayed for. He also relied upon the ruling reported in 1966 Supp. SCR 239 : (1966 Cri LJ 1521) State of Madhya Pradesh v. Shobharam. In it, it was held that under Art. 22(1), a person arrested has the constitutional right to consult a legal practitioner concerning his arrest and a person who has been arrested as well as one who though not arrested runs the risk of loss of personal liberty as a result of a trial, have the constitutional right to be defended by an advocate of their choice. Mr. S. Doraisamy, the learned counsel banks upon the provisions in the Code viz., Section 303 and as well as Art. 22(1) of the Constitution of India to get the direction prayed for.
5. Per contra, Mr. P. Rajamanickam, the learned counsel appearing for the respondent would contend that the case is registered against the petitioner under sections 3, 4 and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (which I shall hereinafter refer to as "TADA Act") and that the jurisdiction and power of the High Court under the Code in respect of offences under T.A.D.A. Act are taken away by the provisions of the said Act and as such the petitioners cannot rely upon S. 303 of the Code to seek this relief. He further contended that since the power of the High Court under the Code with respect to the offence under T.A.D.A. Act is taken away, S. 482 of the Code can neither be availed of and these petitions filed under section 482 of the Code are to be necessarily dismissed. Regarding the claim under Art. 22(1) of the Constitution of India, Mr. P. Rajamanickam, the learned counsel would contend that inasmuch as these are petitions under S. 482 Criminal Procedure Code and which cannot be sustained the claim under A. 22(1) of the Constitution of India cannot be urged in these petitions and in this regard, the remedy is elsewhere.
6. I shall first deal with first point viz., whether the jurisdiction and power of the High Court under the Code with respect to the offences under T.A.D.A. Act are taken away by the provisions in the said Act. In this regard, the learned counsel for the respondent relied upon the ruling Usmanbhai v. State of Gujarat. The apex court had rendered this ruling, while the matter came up on appeal from the judgment of the Gujarat High Court which was reported in 1987 Cri LJ 1955, Usmanbhai Pareedbhai v. State of Gujarat. The applicants before the Gujarat High Court were alleged to have committed offences punishable under Indian Penal Code and as well under sections 3 and 4 of T.A.D.A. Act. They moved for bail before the Designated Court. The Designated Court dismissed these applications for bail. The matter was taken up before the learned single Judge of Gujarat High Court. A preliminary objection was raised on behalf of the State of Gujarat that against the order passed by the Designated Court under T.A.D.A. Act, the application under S. 439 or 482 of the Code is not maintainable before the High Court. The learned single Judge referred the whole matter to the Division Bench for deciding the question whether the High Court has jurisdiction to entertain application under S. 439 or under S. 482 of the Code in view of the provisions of T.A.D.A. Act. While discussing that point, the Gujarat High Court has referred to the provisions of S. 2(1)(c) of T.A.D.A. Act which defines Designated Court and S. 9 which provides for trial of offences punishable under the provisions of T.A.D.A. Act only by Designated Court. Section 12 of the said Act provides the procedure and power of the Designated Court. Section 19 of the said Act provides for appeal from any judgment, sentence or order not being an interlocutory order of a Designated Court to the Supreme Court both on facts and on law. It also ordains that no appeal or revision shall lie to any court from judgment, sentence or order including an interlocutory order of a Designated Court except as aforesaid. After referring to the various Sections of the T.A.D.A. Act in the Appeal judgment, Gujarat High Court has stated at para 8 as follows :
"The aforesaid provisions of the Terrorist Act clearly show that the entire Criminal Procedure Code is not made applicable but only specific provisions thereof are made applicable."
Then again in para 14, The Gujarat High Court has stated as follows :
"Entire Criminal Procedure code is not made applicable but some specific provisions are made applicable or some provisions of the Criminal Procedure Code with modifications are made applicable."
In para 15, the learned Judges have stated as follows :
"In this view of the matter, it is amply clear that the entire Criminal Procedure Code is not made applicable to Terrorist Act but some provisions of the Criminal Procedure Code are made applicable with or without modifications. Therefore there is no reason to hold that provisions of S. 439 or 482 of the Cr.P.C. are applicable to a person accused of an offence punishable under the Terrorist Act."
The learned Judges have stated at para 18 as follows :
"Section 482 does not confer fresh or new or additional powers on the High Court. It saves the inherent powers of the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. If the Court had jurisdiction to entertain an application or appeal, then its powers are not circumscribed by anything in the Code except in so far as the sections expressly dealing with them to do so. But if the High Court has no jurisdiction to entertain any appeal or application, there is no question of exercising inherent jurisdiction."
Holding as above, the High Court has dismissed the application filed under S. 439 or 482 of the Code as not maintainable. Aggrieved by this order, the applicants took up the matter to Supreme Court and thus the matter came upto the Supreme Court and the ruling rendered is the one referred to supra.
7. In the ruling Usmanbhai v. State of Gujarat, the apex Court has referred to Sections 3, 4, 19 and 20 of T.A.D.A. Act. Section 3(1) gives the meaning to the expression "Terrorist Act." Section 4 provides for punishment. Section 19 ousts the jurisdiction of the High Court and reads as follows :
"19.(1) Notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order, not being an interlocutory order, of a Designated Court to the Supreme Court both on facts and in law.
(2) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Designated Court."
Section 20 provides for modified application of provisions of the Code. After referring to the above provisions in T.A.D.A. Act, the apex court has held in para 16 as follows :
"Under the scheme of the Act, there is complete exclusion of the jurisdiction of the High Court in any case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder."
In para 17, the apex court has stated as follows :
"Just as the legislature can create a special court to deal with a special problem it can also create new procedure within the existing system. Parliament in its wisdom has adopted the frame-work of the Code but the Code is not applicable. The Act is a special Act and creates a new class of offences called terrorist acts and disruptive activities as defined in Sections 3(1) and 4(2) and provides for a special procedure for the trail of such offences."
Then again, in para 18, it is observed as follows :
"The manifest intention of the legislature is to take away the jurisdiction and power of the High Court under the Code with respect to offences under the Act. No other construction is possible."
In para 22 it is laid down as follows :
"In view of the explicit for in S. 19(2), there is exclusion of the jurisdiction of the High Court. It interdicts that no appeal or revision shall lie to any Court, including the High Court, against any judgment, sentence or order, not being an interlocutory order, of a Designated Court."
The apex Court has considered the various provisions of T.A.D.A. Act and has laid down that the manifest intention of the legislature is to take away the jurisdiction and power of the High Court under the Code.
8. Mr. S. Doraisamy, the learned counsel appearing for the petitioners contended that S. 20 T.A.D.A. Act provides for modified application of certain provisions of the Code and that would imply that other provisions of the Code are applicable, and the High Court can give a direction under S. 482 of the Code as prayed for. This contention would not hold good in view of the ruling of the Supreme Court. Though the matter came up before the Supreme Court in an application with regard to the bail, under Ss. 439 or 482 of the Code, the apex Court has considered all the provisions of T.A.D.A. Act and has laid down as above. So the petitions under S. 482 Criminal Procedure Code are not maintainable. It is needless for me to state that neither any claim can be made on the strength of S. 303 of the Code.
9. Mr. P. Rajamanickam, the learned counsel appearing for the respondent, further relied upon the ruling reported in (1990) 2 Crimes 502, Bashir Ahmad v. State. In this ruling, the Jammu and Kashmir High Court has held that the intention of the Legislature appears to take away the jurisdiction and powers of this Court under the Code of Criminal Procedure with respect to the offences triable under the Act.
10. Regarding the claim under Art. 22(1) of the Constitution of India, in view of the stark fact that these petitions are filed under S. 482 of the Code, which is not maintainable, that cannot be considered in these petitions. Mr. P. Rajamanickam, the learned counsel appearing for he respondent has rightly pointed out that for enforcing a right under Art. 22(1) of the Constitution of India, the remedy lies elsewhere. In the ruling Usmanbhai v. State of Gujarat, referred to supra, in para 12, the apex Court has stated that Mr. Poti, learned counsel appearing for the State Government with his usual fairness, unequivocally accepted that the provisions of the Act do not take away the constitutional remedies available to a citizen to approach the High Court under Art. 226 or 227 or move this court by a petition under Art. 32 for the grant of an appropriate writ, direction or order. But in this petition filed under S. 482 of the Code, which is clearly not maintainable those rights cannot be considered and hence are not considered.
11. The picture that emerges, out of the law laid down, can be formulated as follows :
(1) The manifest intention of the legislature is to take away the jurisdiction and power of the High Court under the Code with respect to offences under the TADA Act.
(2) As a corollary to No. 1 above, the provisions of S. 482 of the Criminal Procedure Code are not applicable to a person accused of an offence punishable under TADA Act.
12. In view of the above, this petition under S. 482 Criminal Procedure Code is dismissed as not maintainable.
13. Order accordingly.