Bombay High Court
Anil Vasant Chitnis And Others Etc. vs Senior Inspector Of Police, Alibaug ... on 18 July, 1994
Equivalent citations: 1995(2)BOMCR17, 1994CRILJ3760, 1994(2)MHLJ1743
JUDGMENT V.A. Mohta, J.
1. Ultimate questions that fall for determination in these petitions under Art. 226 of the Constitution are : (a) whether the following First Information Report discloses an offence under the Terrorist and Disruptive Activities (Prevention) Act, 1987, ('the TADA Act') and if not, (b) whether case for quashing the proceedings under the TADA Act at such initial stage exists.
2. These three petitions are by in all nine accused arrayed in the F.I.R. Since common questions arise, they are heard together and are being disposed off by this common Judgment.
3. First Information Report "On 21/11/1993 C.R. No. 92/93 at 6.30 p.m. Nagaon, Bahirichi Wadi.
Complainant : Manik Damodar Sawant, Residence Nagaon, High School.
Accused 1. Anil Chitnis,
2. Moreshwar R. Khot,
3. Deepak Bhatkar,
4. Raju Vartak,
5. Dattatraya V. Thakur,
6. Pradeep alias Bana Kare,
7. Hemant R. Narvankar,
8. Pradeep S. Pradhan,
9. Ramakant R. Wadkar.
All residence of Nagaon.
On the abovementioned time, date and place the abovenamed accused bearing grudge over the misunderstanding that took place in the meeting of Congress workers conspired together armed with knife and iron-bars and fist blows assaulted to the Complainant and Satish Lele and attempted to kill them. Because of this, they created terror in the village.
MANIK DAMODAR SAWANT I reside at the abovementioned address and there I have my own house and field. I reside with my wife and children and brother in a joint family. I am congress worker. One Anil Vasant Chitnis who is of bad character man who is always formed in the company of anti-social elements in the village. Hence people are afraid of them. He is the editor of a weekly called 'THINGI' and by this media he publishes false and defamatory articles about the villagers and a terror is created. Because of his acts, there is a terror created among the ordinary people. People residing nearby are afraid of him.
Several complaints are filed against him at Alibaug Police Station. Yet due to fear, common people are afraid of complaining against him. In the month of June, 1993 Grampanchayat election held at Nagaon in which myself;
1. Satish Narayan Lele,
2. Anil Vasant Chitnis,
3. Bhalchandra Pralhad Apte,
4. Madhuri Chavan Patil,
5. Shaila Patwardhan were declared elected from the Congress Party as members of Grampanchayat. Against us several members of joint ally of S. K., Shivsena and B.J.P. were elected as members of the Grampanchayat. Arun Balkrishna Mhatre of Shiv Sena was elected as Sarpanch and Raghunath Pandurang Dhule as Vice-Sarpanch. Anil Chitnis aspired for the post of Sarpanch but he was not elected. He was therefore, displeased. Thereafter before the first meeting of the Grampanchayat a meeting of co-members of the Congress was held and in which it was decided to extend full co-operation to Sarpanch Arun Mhatre. Before the second meeting Anil Chitnis published articles against Sarpanch Mhatre and another in his weekly 'THINGI'. Thereafter I and Satish Lele asked Anil Chitnis as to why he published the same when it was decided to co-operate Sarpanch Mhatre. He was, therefore, displeased with us. Thereafter continuously on 2 or 3 occasions Anil Chitnis published articles against Anil Chitnis and Satish Lele. He stopped the said writing when we complained to the Collector of Raigad. He was, therefore, angry with us. On 21-11-1993 at 10.00 a.m. there was meeting in the house of Sadanand Bagaon at Lagobandar. At the said meeting Ramesh Naik, Taluka Congress President, Umesh Mhatre, Sagar Patil and they were to discuss about the misunderstanding between the Congress Workers of our village. Hence upon the order of President I and Satish Lele were present at the said meeting. Shailesh Narayan Lele, brother of Satish Lele was also present at the said meeting. At the said meeting hot-exchange (sic) of said meeting were took place and in order to avoid any serious incident, the President asked me and Satish Lele to go home. Accordingly we went to our home. Every year at Nagaon Port races of Bullock-carts are held. For that purpose proper cleaning and other ceremony are performed. Accordingly, I, Satish Lele, Sarpanch, Vice-Sarpanch and other people of the village went at Port at about 5-00 p.m. on 21-11-1993. At the said place at 5.30 p.m. the coconut was broken and when we all were returning by road jeep No. HM-4-A-110 and another one No. M.P./6845 were stopped near us. (1) Anil Chitnis, (2) Moreshwar Khot, (3) Raju Vartak, (4) Dattatraya Thakur, (5) Pradeep alias Bana Kathe, (6) Hemant Narvankar (7) Ramakant Wadkar were getting down from jeep. At that time by the sign of white by Raju Vartak, (1) Deepak Bhaskar (2) Pradeep Pradhan came to us and were stopped. At the same time, the people who got down from jeep. (1) Anil Chitnis, (2) Deepak Bhaskar, (3) Moreshwar Khot, (4) Raju Vartak were having iron-bars in their hands. Anil Chitnis said that they are traitors and they should be killed. They have cheated me, kill them, saying so he came running at me. At that time Pradeep alias Bana Rathe and Hemant Narvankar who were by his side held by both hands and Anil Chitnis with the knife in his hand, pierced it through the left side of my eye as well as on my forehead. At that time Pradeep Dattatraya Thakur was also giving fist blows. My associate Satish Lele was also assaulted by Deepak Bhaskar, Moreshwar Khot, Vartak, Ramakant Wadkar, Pradeep Pradhan with the kife and fist blow. He was also injured on his stomach and body. Similarly people with us Sarpanch Arun Mhatre, Vice-Sarpanch Thate and Shailesh Lele, brother of Satish Lele were also attacked and ran away as these people went to assault them. While we were returning home after breaking the coconut for bullock-cart race I was pillion on a scooter of Satish Lele who was driving and Up-Sarpanch was pillion on the Kavasaki motor-cycle with Sarpanch Mhatre. Hence, I have to complain against (1) Anil Chitnis, (2) Moreshwar Khot, (3) Deepak Bhaskar, (4) Raju Varkat, (5) Dattatraya Thakur, (6) Pradeep alias Khate, (7) Hemant Narvankar, (8) Pradeep Pradhan, (9) Ramakant Wadkar, all are residing at Nagaon. Owing to the misunderstanding that arose at the meeting of Congress members today the abovenamed accused in conspiracy together armed with iron-bars attempted to murder me and my friend Satish Lele by stabbing with the knife at various places on his body as well as by fist-blows. Because of this act a tension and terror is prevailed in the atmosphere of the village. Hence, this is my complaint against them.
Before me, Sd/-"
4. At the time of the first and second rounds, police applied Sections 307, 147, 148, 149, 323, 120-B and 506 of the Indian Penal Code against the Petitioners. At the time of the third remand, Section 3 of the TADA Act was also applied.
5. Having heard learned Counsel for the parties at length, we are satisfied that allegation in the FIR even if taken at their face value and accepted in entirety as gospel truth, do not constitute any offence under the TADA Act and hence this is a pre-eminently fit case for exercising writ jurisdiction to quash the proceedings so far as application of the TADA Act is concerned. In our view refusing to entertain these petitions would be failure of duty to check wanton and indiscriminate application of the TADA Act to an incident which unfortunately is not unusual before, in or after the elections in rural area these days and is capable of being tackled by ordinary law enforcement agencies.
6. The learned Public Prosecutor appearing for the Respondents vehemently defended the application of the TADA Act to the FIR and contended that alternate remedy of approaching the designated court for quashing the proceedings exists under the TADA Act and hence these petitions should be thrown out only on that ground. We do not agree. The law on the point is by now well settled. Latest two leading decisions of the Supreme Court at : (i) Kartar Singh v. State of Punjab and (ii) Hitendra Vishnu Thakur v. State of Maharashtra decided on 12-7-1994 in Criminal Appeal Nos. 732-735 of 1993 (reported in 1994 AIR SCW 3699) along with connected matters.
7. As per Section 2(1)(h) of the TADA Act, the expression 'terrorist act' has the meaning assigned to it in Section 3(1) which reads as under :-
"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 fire-arms 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 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."
Close analysis of the above provisions will indicate that many of the criminal activities punishable under the ordinary penal laws can also constitute terrorist acts. There is to an extent overlapping. But that does not mean that every criminal activity can fall under the net of Section 3(1). There are various varieties of criminal activities. Some can disturb "law and order" and some can disturb "public order" - the distinction between the two being well-known. Ordinary penal laws and preventive detention laws are meant to tackle those situations. Merely because the crime belongs to later category, it does not become a terrorist act. The main distinguishing feature is in the fall out of intended activity. If it travels beyond the capacity of ordinary law enforcement agencies to tackle it, it may be covered by the TADA Act. But as observed by the Supreme Court in the case of Kartar Singh v. State of Punjab , a person is guilty of a terrorist activity only when (i) intention, (ii) action and (iii) consequences - the ingredients contemplated under section 3(1) exist. Mere consequence of the criminal act is not decisive of the matter. Intention to achieve the result envisaged by Section 3(1) is vital to attract the provisions. This view is consistently taken and is reiterated in the case of Hitendra Vishnu Thakur v. State of Maharashtra decided on 12-7-1994 in Criminal Appeal Nos. 732-735 of 1993 (reported in 1994 AIR SCW 3699) along with connected matters, law on the point is thus well crystallised and is not amorphous. Applying these tests to the incident, it is impossible to categorise the crime as a terrorist act.
8. Can and/or should the High Court intefere under Art. 226 of the Constitution in the matter of application of the TADA Act at the stage of FIR is the next question. Answer to the question of jurisdiction is simple. No statute can bar a constitutional remedy. The TADA Act has not chosen to undertake that exercise - directly or impliedly. Principal question is about appropriate use of that power and jurisdiction. TADA Act or no jurisdiction to quash FIR lies in very limited areas, some of which are stated as guidelines in State of Haryana v. Bhajanlal, 1992 Supp (1) SCC 335 : (1992 Cri LJ 527. The following is the list of myriad kind of cases - which list again cannot be exhaustive - where such jurisdiction can and should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceeding and/or where there is a specified provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
Guideline Nos. 1 and 3 are relevant in the present matter.
9. The subject of High Court's power under Art. 226 of the Constitution in the context of the TADA Act has been considered in quite details by the Supreme Court in the case of Kartar Singh (1994 Cri LJ 3139) (supra). It has been held that power should be exercised most sparingly and only in rare and appropriate cases in extreme circumstances. It is observed that the circumstances justifying the entertaining of applications under Art. 226 cannot be put in straight jacket. However, the Supreme Court emphasised that "the judicial discipline and comity of Courts require that the High Courts should refrain from exercising their jurisdiction in entertaining bail applications in respect of an accused indicted under the special Act since this Court has jurisdiction to interfere and correct the orders of the High Courts under Art. 136 of the Constitution." Though the observations of the High Court pertain to entertaining the bail applications, we take it that nearly the same principles will apply even in the matter of quashing the FIR for which the guidelines in Bhajanlal's case (1992 Cri LJ 527) (SC) (supra) will be relevant. Applying the ratio of Kartar Singh, (1994 Cri LJ 3139 (SC), Hitendra Vishnu Thakur (1994 AIR SCW 3699) and Bhajanlal (1992 Cri LJ 527) (SC) (supra) to the instant matter, conclusion is inevitable that the First Information Report even if taken at its face value and accepted in its entirety, does not make out even a prima facie case under section 3(1) of the TADA Act as a result the FIR to that extent has to be quashed and set aside. We consider it unfortunate that even in an election dispute of this type belatedly Section 3(1) of the TADA Act is applied perhaps with the object of stalling the release of the accused on bail. For such considerations only, the TADA Act cannot be applied. Application of TADA is not mere ipse dixit of a statement of the investigating officer. It does not appeal to common sense that the consequences envisaged under section 3 were intended by the accused persons and that the activity is such which cannot be tackled by a normal law enforcement agency. TADA Act has unfortunately become a necessity in our country. But unless its application is discriminate and only in appropriate rare cases, the very purpose of enacting the TADA Act can be defeated. Indiscriminate use of the provisions of the TADA Act is a remedy which can be worse than the disease.
10. Under the circumstances, it is declared that no offence under the TADA Act is disclosed in the FIR. To that limited extent, the FIR in CR92/93 is quashed and set aside. All the three petitions are allowed and the rules made absolute in the above terms.
11. The matters be transferred to the appropriate Court. The Petitioners are on bail pursuant to the order dated 7-2-1994 passed by this Court at the time of admission of these petitions. The said order shall continue for a period of two weeks from today to enable the Petitioners to move the appropriate concerned Court. Certified copy expedited.
12. Petitions allowed.