TMI Blog1994 (3) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, a number of other matters falling under various Acts such as the U.P. Gangsters and Anti-social Activities (Prevention) Act, 1986 (U.P. Act 7 of 1986), the Prevention of Illicit Traffic Ed.: For clarification see Editor's Introductory Note at the beginning of the head note. of Narcotics 'Drugs and Psychotropic Substances Act, 1988 and some provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), were listed for hearing, we have fully and conclusively heard only the matters pertaining to the Act of 1984, Act of 1985 and Act of 1987 and U.P. Act 16 of 1976. 2. Therefore, we are now rendering a common judgment pertaining to the vires of these three Acts and Section 9 of U.P. Act 16 of 1976. At the same time, we make it clear that the merits of the individual cases will have to be decided separately after the validity of these three Acts is decided. 3. Before going to the question of the validity of these three Acts, we feel that a factual and archival account and exposition of the three relevant Acts may be summarised. Prefatory Note of the Three Acts (A) THE TERRORIST AFFECTED AREAS (SPECIAL COURTS) ACT, 1984 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 are bailable were specified, the Legislature by the Amendment Act 45 of 1985, published in the Gazette of India, dated August 26, 1985, retained only Sections 121, 121-A, 122 and 123 of the Indian Penal Code and Sections 4 and 5 of the Anti-Hijacking Act, 1982 and deleted the rest from the original schedule. 7. It has been brought to our notice by Mr K.T.S. Tulsi, the learned Additional Solicitor General that the Central Government established judicial zones in Jullundur, Patiala, Ferozepur and Chandigarh but abolished them by Notification Nos. S.O. 692, S.O. 693, S.O. 694 and S.O. 695 dated September 25, 1985 and transferred the cases pending before those courts to ordinary courts. Two additional courts were constituted by the Government of India for trial of hijacking cases and Golden Temple case at Ajmer and Jodhpur but these two courts were also abolished by the Government vide Notification Nos. S.O. 655(E) and S.O. 722(E) dated August 24, 1990 and September 28, 1993 respectively. However, this Act is not repealed, but is in operation. (B) THE TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1985 (ACT 31 OF 1985) 8. This Act which received the assent of the Presid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are segregated into four parts i.e. Part 1 (Sections 1 to 2), Part 11 (Sections 3 to 6), Part III (Sections 7 to 16) and Part IV (Sections 17 to 24), dealing with punishment for, and measures for coping with, terrorist and disruptive activities, constitution of Designated Courts constituted under Section 7 of the Act, its jurisdiction and powers, the procedure to be followed, production of witnesses, appointment of Public Prosecutors and the provision for appeal as a matter of right from any judgment, sentence or order, not being an interlocutory order, of the court direct to the Supreme Court both on facts and law (vide Sections 7 to 16) and other miscellaneous provisions regarding the modified application of certain provisions of the Code' of Criminal Procedure, 1973, competence of Central Government to exercise powers of State Government and delegation of powers, power of the Supreme Court of India to make rules etc. (C) THE TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987 (ACT 28 OF 1987) 11. Act 28 of 1987 was enacted as Act 31 of 1985 was due to expire on May 23, 1987 and as it was felt that in order to combat and cope with terrorist and disruptive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punishment for, and measures for coping with terrorists and disruptive activities. Part III deals with constitution of Designated Courts, their jurisdiction, powers, and the procedure to be adopted. It also provides provisions for appeal to the Supreme Court both on facts and law as in the case of other Acts. The provisions under Part IV under the heading Miscellaneous deal with the modified application of certain provisions of the Code, presumption as to offenses under Section 3, identification of accused, power of the Supreme Court to make rules etc. 14. We give the following table of some of the provisions which are similar in the Act of 1985 and the Act of 1987: Section 7 = Section 9 Section 8 = Section 10 Section 9(2) = Section 11(2) Section 13 = Section 16 Section 16 = Section 19 Section 17(2) = Section 20(4) Section 17(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor General, Mr K.T.S. Tulsi assisted by Mr R.S. Suri appearing for the State of Punjab, the learned Additional Solicitor General, Mr Altaf Ahmed assisted by Ms A. Subhashini appearing for the Union of India, Mr V.R. Reddy, the learned Additional Solicitor General assisted by Mr K.V. Venkataraman and Mr 1. Subramaniam for the State of Tamil Nadu, Mr S.K. Dholakia for the State of Gujarat and Mr N.M. Ghatate for the State of U.P. contending that all the veiled attacks challenging the validity of the Acts and the provisions thereto are mainly due to the unjustifiable hostility and sentiments and souring of respect for those Acts. According to them, the events of the past and the continuous long term threats of terrorism and disruption unleashed by a team of seasoned criminals by spreading their wings and sharpening their claws have forced the legislature to respond to this menace without sacrificing the national values and to combat the terrorism by extending and expanding the legal powers of the State and taking steps/measures in a legalised way and that the outcome of such response is the enactment of these Acts after a prolonged debate in both Houses of Parliament as the Legislatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and rich practical experience in criminal proceedings and trials analysed the various provisions of the Acts under separate heads in the light of the well- recognised principles of criminal jurisprudence with reference to human rights, but sometimes with occasional outbursts and caustic exchanges. In support of their respective contentions advanced during their expanded arguments, they cited a long line of decisions of not only this Court and the High Courts of this country but also foreign decisions and legislations. 20. Before we make an in-depth examination of the challenges canvassed which are manifestly and pristinely legal, with regard to the impugned Acts and some of their provisions with a comprehensive and exclusive survey, it has become inevitable for us to give a brief sketch of the historical background and the circumstances which forced the legislature to enact these laws, as gathered from the parliamentary debates, Statement of Objects and Reasons and prefatory notes of the impugned Acts, etc., etc. 21. From the recent past, in many parts of the world, terrorism and disruption are spearheading for one reason or another and resultantly great leaders have been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... life of the citizens. Apart from many skirmishes in various parts of the country, there were countless serious and horrendous events engulfing many cities with blood-bath, firing, looting, mad killing even without sparing women and children and reducing those areas into a graveyard, which brutal atrocities have rocked and shocked the whole nation. 23. Everyday, there are jarring pieces of information through electronic and print media that many innocent, defenseless people particularly poor, politicians, statesmen, government officials, police officials, army personnel inclusive of the jawans belonging to Border Security Force have been mercilessly gunned down. No one can deny these stark facts and naked truth by adopting an ostrich like attitude completely ignoring the impending danger. Whatever may be the reasons, indeed there is none to deny that. 24. The speeches made by the then Home Minister, the then Minister of State for Home Affairs and many Members of Parliament during the debates at the time of the introduction of the Act of 1987 and at the subsequent stage of its extension and modification, would unfold the magnitude and seriousness of the terrorist and disruptiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Acts (TADA) to effectively prevent the consequent violence. But suffice to give the compelling reasons as shown in the Statements of Objects and Reasons for enacting the Acts of 1985 and Objects and Reasons for enacting the Acts of 1985 and 1987 which are to the effect that the terrorists and disruptionists by their expanded activities have created dreadful fear and panic in the minds of the citizens and disrupted communal peace and harmony; that their activities are on an escalation in many parts of the country; that it has been felt that in order to combat and cope with such activities effectively, it had become necessary to take appropriate legal steps effectively and expeditiously so that the alarming increase of these activities which are a matter of serious concern, could be prevented and severely dealt with. 29. The totality of the speeches made by the Ministers, Members of the Parliament during the debates in the Parliament, the Statement of Objects and Reasons, the submissions made by the learned Additional Solicitors General converge to the following conclusions: (1) From mid-eighties, the prevailing conditions have been surcharged with the terrorism and disruption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of facts which can be conceived existing at the time of the legislation. 32. To redress all the multiple dimensions of crimes whether of national or transnational or international committed by individual or group of criminals, is of course a very difficult task because the crimes and criminals do not respect frontiers and the field of operation of the activities of the criminals know no territorial limits. 33. The Parliament, evidently, taking note of the gravity of terrorism committed by terrorists either with an intention 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 and the consequent widespread apparent danger to the nation, has felt the need of not only continuing but also further strengthening the provisions of TADA Act (Act 31 of 1985) in order to cope with the menace of terrorism, enacted Act 28 of 1987 bringing drastic changes with regard to the admissibility of confessions made to police officials prescribing special procedures and providing consign punishments etc., leave apart the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation and as the interests and modes of articulation of those ministering to the law become more and more specialised and technical. 39. Needless to stress that the life of man in a society would be a continuing disaster if not regulated. The principal means for such regulation is the law which serves as the measure of a society's balance of order and compassion and instrument of social welfare rooted in human rights, liberty and dignity. 40. Emphasising the importance and potentiality of the law, Lord Chancellor Sankey once remarked: Amidst the cross currents and shifting sands of public life the law is like a great ark upon which a man may set his foot and be safe. 41. C.G. Weeramantry in The Law in Crisis Bridges of Understanding emphasising the importance of 'Rule of Law' in achieving social interest has stated thus: The protections the citizens enjoy under the Rule of Law are the quintessence of twenty centuries of human struggle. It is not commonly realised how easily these may be lost. There is no known method of retaining them but eternal vigilance. There is no known authority to which this duty can be delegated but the community itself. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of naval, military or air forces or any other armed forces of the Union in aid of the civil power. 46. According to him, the above entry is left with only 'offenses against laws' with respect to matters specified in subsequent entries of the Concurrent List. As the TADA Act cannot be held to be referable to any other topic in the Concurrent List, its subject-matter could not, on that basis be held to fall under Entry of that list. It has been further submitted that the contents of the heading 'Criminal law' in Entry 1 of List III are derivative in' nature and carry no meaning of their own because the criminal law comprising 'offenses against laws' are with respect to the matters in the three lists. He continued to urge that the subject-matter of the TADA Act which deals with the 'security of the State' and 'public safety' involving violence even of the highest degree tending to cause grave public disorder is plainly covered under Entry of List II and that the individual States under Entry 64 of List II alone are competent to legislate with respect to offenses against public order. 47. After drawing our attention to some of the laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... List II and the legislative power to vest jurisdiction and confer powers on courts to try such State offenses calls under Entry 65 of List II and that a combined reading of the excluding clause of Entry I of List III and Entry 93 of List I and Entry 64 of List II completely exempts offenses relating to 'Public order' from the heading, Criminal law' under Entry I of List III. 50. It has been further urged that the legislative power of the Parliament under Articles 245 and 246(1) and (2) read with List I and List III of the Seventh Schedule to the Constitution in regard to creating offenses, under Entry 93 of List I extends only to matters enumerated in that list and under Entry 1 of List III in regard to matters in subsequent entries of that list. 51. Supplementing the above arguments, Mr Ram Jethmalani, Senior Counsel advanced the other facet of the argument stating that this Act (28 of 1987) in 'pith and substance' relates to 'Public order' as reflected from its preamble itself declaring the Act to be an Act to make special provisions for the prevention of and for coping with terrorist and disruptive activities and for matters connected therewith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... telligence Organisation, which information is not to be disclosed in public interest, unmistakably unfolds that the secessionists' forces working to destabilize the sovereignty of India and its integrity are being encouraged by the neighboring countries and that there are many training camps on the borders of India where training is imparted to militants and terrorists not only in the use of sophisticated and heavy weapons including rocket launchers, machine guns, mines, explosives and wireless, communications but also to indulge in illicit trafficking of narcotic drugs, and psychotropic substances which unassailable facts are a matter of common knowledge and which can be taken into consideration by way of judicial notice. Many countries across the borders, according to him, are supplying deadly arms and ammunitions and are providing sanctuary to the extremist elements as a base for their training and doctrination. 55. In view of the above outrageous and volcanic circumstances and situations, in pith and substance, the Act is not related to 'Public order' falling under Entry 1 of List II but relates to the 'Defence of India' falling under Entry 1, as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Union List or Concurrent List [See (i) Union of India v. H.S. Dhillon(1971) 2 SCC 779: (1972) 2 SCR 33 (SCC at pp. 799, 803; SCR at pp. 61 and 67- 68), (ii) S.P. Mittal v. Union of India' (1983) 1 SCC 51 : (1983) 1 SCR 729 (SCC at p. 82, paras 70 and 72; SCR at pp. 769-770), and (iii) Khandelwal Metal and Engg. Works v. Union of India (1985) 3 SCC 620: 1985 SCC (Tax) 466: 1985 Supp 1 SCR 750,775 SCC at p. 641, para 42]. It is, therefore, necessary to examine whether the Act falls within the ambit of Entry 1 read with Entry 64 of the State List as contended by the learned counsel for the petitioners. But before we do so we may briefly indicate the principles that are applied for construing the entries in the legislative lists. It has been laid. down that the entries must not be construed in a narrow and pedantic sense and that widest amplitude must be given to the language of these entries. Sometimes the entries in different lists or the same list may be found to overlap or to be in direct conflict with each other. In that event it is the duty of the court to find out its true intent and purpose and to examine the particular legislation in its 'pith and substance' t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint is made and in what list is its true nature and character to be found. If these questions could not be asked, much beneficent legislation would be stifled at birth, and many of the subjects entrusted to Provincial Legislation could never effectively be dealt with. Thirdly, the extent of the invasion by the Provinces into subjects enumerated in the Federal List has to be considered. No doubt it is an important matter, not, as their Lordships think, because the validity of an Act can be determined by discriminating between degrees of invasion, but for the purpose of determining what is the pith an d substance of the impugned Act. Its provisions may advance so far into federal territory as to show that its true nature is not concerned with provincial matters, but the question is not, has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is not money-lending but promissory notes or banking? Once that question is determined the Act falls on one or the other side of the line and can be seen as valid or invalid according to its true content. See also (1) The Central Provinces and Berar Sales of Mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind. 65. In Ram Manohar Lohia (Dr) v. State of Bihar' (1966) 1 SCR 709: AIR 1966 SC 740: 1966 Cri LJ 608, Hidayatullah, J. (as the leaned Chief Justice then was) has brought out the distinction between law and order , public order and security of the State in the following observation: It will thus appear that just as 'public order' in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting security of State , law and order also comprehends disorders of less gravity than those affecting public order . One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. 66. Having re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the manner in which they have been cruelly executed, the vulnerable territorial frontiers which form part of the scene of unprecedented and unprovoked occurrences, lead to an inescapable illation and conclusion that the activities of the terrorists and disruptionists pose a serious challenge to the very existence of sovereignty as well as to the security of India notwithstanding the fact whether such threats or challenges come by way of external aggression or internal disturbance. 68. The terrorism, the Act (TADA) contemplates, cannot be classified as mere disturbance of 'public order' disturbing the even tempo of the life of community of any specified locality in the words of Hidayatullah, C.J. in Arun Ghosh v. State of W.B.20 but it is much more, rather a grave emergent situation created either by external forces particularly at the 20 (1970) 1 SCC 98: 1970 SCC (Cri) 67: (1970) 3 SCR 288 frontiers of this country or by anti-nationals throwing a challenge to the very existence and sovereignty of the country in its democratic polity. 69. The above view gets strengthened from the very definition of the expression 'terrorist act' as defined in Section 2(1)(h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cession of any part of India or the secession of any part of India from the Union . [Vide Section 4(2).] 72. Therefore, the submission made by Mr Jethmalani that the preamble of the Act gives a clue that the terrorist and disruptive activities only mean a virulent form of the disruption of public order is inconceivable and unacceptable. 73. In our view, the impugned legislation does not fall under Entry 1 of List II, namely, 'Public order'. No other Entry of List II has been invoked. The impugned Act, therefore, falls within the legislative competence of Parliament in view of Article 248 read with Entry 97 of List I and it is not necessary to consider whether it falls under any of the entries in List I or List III. We are, however, of the opinion that the impugned Act could fall within the ambit of Entry 1 of List I, namely, 'Defence of India'. 74. Mr Hardev Singh in his written arguments also challenged the vires of Act 61 of 1984 on many grounds (about which we shall deal separately while examining the various provisions of TADA Act, one of which being the legislative competence). The learned counsel has questioned the.legal competence of the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grave situation threatening the sovereignty and integrity of India. 78. For all the reasons stated above, we hold that the contention that the Acts 61 of 1984, 31 of 1985 and 28 of 1987 are ultra vires on the ground of suffering from lack of legislative competence and as such the entire Acts are liable to be struck down, is to be rejected and accordingly that contention is rejected as devoid of any merit. 79. The next spinal issue arises for our deepest probe, and scrutiny is whether the impugned Acts in general or any of the provisions thereof in particular contravene any other fundamental right specified in Part III of the Constitution. All the learned counsel who have challenged the vires of these Acts and the provisions thereof have advanced their legal arguments both topic-wise as well as with reference to the individual provisions of the Acts. 80. To begin with their polemics, it was with reference to the proposition of speedy trial which is the main objective of these Acts under challenge. It was the submission of the learned counsel that though the professed object of Act 61 of 1984 (Special Courts Act) and of TADA Acts (Acts 31 of 1985 and 28 of 1987) is for spee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Central Government may establish, by notification, a Special Court...... Though there is no explicit manifestation of such expression, 'speedy trial' found either in the preamble or in any of the provisions of the TADA Acts as in the Terrorist Affected Areas (Special Courts) Act, 1984, the scope and intendment of the various provisions of these TADA Acts perceivably convey that the TADA Acts also contemplate speedy trial of cases. In fact, the 'Statement of Objects and Reasons' of Act 31 of 1985 reading, This is a new and overt phase of terrorism which requires to be taken serious note of and dealt with effectively and expeditiously makes it clear that the constitution of Designated Courts was for the speedy and expeditious trial of offenses under the impugned legislation. 83. Now let us examine the principle of speedy trial underlying in Act 28 of 1987 (TADA). The constitution of one or more Designated Courts either by the Central Government or the State Government by notification in the Official Gazette for notified area/areas to try specified cases or class or group of cases (vide Section 9 of Act 28 of 1987); the procedure prescribed for disposal of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimise anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself but also there is a societal interest in providing a speedy trial. This right has been actuated in the recent past and the courts have laid down a series of decisions opening up new vistas of fundamental rights. In fact, lot of cases are coming before the courts for quashing of proceedings on the ground of inordinate and undue delay stating that the invocation of this right even need not await formal indictment or charge. 86. The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion after the decision of this Court in Maneka Gandhi (1978) 1 SCC 248: (1978) 2 SCR 621. 89. It is appropriate to refer to two of the decisions of the Supreme Court of United States of America dealing with the scope of speedy trial which is a guaranteed fundamental right incorporated by the Sixth Amendment of the Constitution of United States. 90. In Beavers v. Haubert 198 US 77, 87: 49 L Ed 950, 954 (1905) the Supreme Court of USA has observed thus: (US p. 87: L Ed p. 954) The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice. 91. Recognising the right of an accused to approach the court for dismissal of a criminal proceeding on the ground of speedy trial, the US Supreme Court held in Strunk v. United States 412 US 434: 37 L Ed 2d 57 (1973) that the denial of an accused's right to speedy trial results in a decision to dismiss the indictment or in reversion of a conviction. See also United States v. MacDonald . 92. Of course, no length of time is per se too long to pass scrutiny under this principle nor the accused is cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in nutshell, the enforcement of the fundamental rights conferred under Articles 20 and 21 of the Constitution can be exercised and enforced even during emergency. To better understand, the legislative history with regard to the exemption of Articles 20 and 21 from operation even during emergency may be briefly recapitulated. 95. Prior to the enactment of the Constitution (Forty- fourth Amendment) Act, 1978 which came into force, w.e.f. June 20,, 1979, all the rights conferred by Part III including the rights under Articles 20 and 21 could be suspended during emergency. But the exemption was given by the above Amendment Act for the reasons spelt out in the 'Statement of Object and Reasons' of the Forty-fourth Amendment, which read thus: Statement of Objects and Reasons.- Recent experience has shown that the fundamental rights, including those of life and liberty, granted to citizens by the Constitution are capable of being taken away by a transient majority. It is, therefore, necessary to provide adequate safeguards against the recurrence of such a contingency in the future and to ensure to the people themselves an effective voice in determining the form of government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word 'abet' in Section 2(1)(a) of 1987 Act is without any clarity and is an instance of the first kind of unfairness and also blissfully vague creating a state of tyranny and this imprecise definition helps even innocent persons who are totally free from any moral blameworthiness, to be arrested, detained and prosecuted. It is further stated that the word 'abet' is adequately defined in Section 107 of the Indian Penal Code to meet every legitimate need and purpose of criminal law, and that the definition of the word as given in the Act which smacks of arbitrariness is an instance of the first kind of unfairness within the dictum laid down in Maneka Gandhi (1978) 1 SCC 248: (1978) 2 SCR 621 and deserves to be struck down as being violative of Articles 14 and 21 of the Constitution. 100. The learned Additional Solicitor General countering the above arguments stated that the expanded definition of 'abet' is to fulfill the objects of the Act during the period when the terrorists activities on escalated scale continue unabated in any notified area and in such disturbed times it is difficult for the prosecution to prove 'mens rea' or 'intention' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionists or passes on, or publishes without any lawful authority, any information likely to assist the terrorists or disruptionists or passes on or publishes or distributes any document or matter obtained from the terrorists or disruptionists and/or renders any assistance whether financial or otherwise to the terrorists and disruptionists. 102. In common parlance, the word 'abet' means assistance, cooperation and encouragement and includes wrongful purpose. 103. In Corpus Juris Secundum, Vol. I at page 306, the meaning of the word 'abet' is given as follows: To abet has been defined as meaning to aid; to assist or to give aid; to command, to procure, or to counsel; to countenance; to encourage, counsel, induce, or assist; to encourage or to set another on to commit. Used with 'aid'. The word 'abet' is generally used with the word 'aid' and similar words. 104. Section 107 of Indian Penal Code defines the word, 'abetment' (which is a noun) as follows: 107. Abetment of a thing.- A person abets the doing of a thing, who- First.- Instigates any person to do that thing; or Secondly.- Engages with one or more other person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court while disposing a criminal appeal in which the accused stood convicted under Section 9(a) of the Opium Act, 1878 on the allegations that the appellant was found in possession of a parcel which was on opening found to contain opium, held: (SCC p. 378, para 20) Knowledge is an essential ingredient of the offence as the word possess' connotes, in the context of Section 9, possession with knowledge. The legislature could not have intended to make mere physical custody without knowledge an offence. A conviction under Section 9(a) would involve some stigma and it is only proper then to presume that the legislature intended that possession must be conscious possession. 111. On the strength of the dictum, laid down in the above decision, they submitted that 'mens rea' is an essential element in every offence and in the absence of proof 'mens rea' none can be mulcted with any criminality especially in cases where deterrent sentence is called for. 112. In support of their submission that the definition is very vague, our attention was drawn to a passage from the judgment of Chandrachud, C.J. in A.K. Roy v. Union of India (1992) 1 SCC 271: 1982 SCC (Cri) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his kind, the element of 'mens rea' must be read into the provisions of the statute. The question is not what the word means but whether there are sufficient grounds for infer-ring that the Parliament intended to exclude the general rule that mens rea is an essential element for bringing any person under the definition of 'abet'. 116. There are judicial decisions to the effect that it is generally necessary to go behind the words of the enactment and take other factors into consideration as to whether the element of 'mens rea' or actual knowledge should be imported into the definition. See (1) Brand v. Wood 62 TLR 462, 463 (2) Sherras v. De Rutzen (1895) 1 QB 918: 11 TLR 369, (3) Nicholls v. Hall LR (1873) 8 CP 322: 28 LT 473 , and (4) Inder Sain v. State of Punjab (1973) 2 SCC 372: 1973 SCC (Cri) 813. 117. This Court in State of Maharashtra v. M.H. George36 while examining a question as to whether mens rea or actual knowledge is an essential ingredient of the offence under Section 8(1) read with Section 23(1)(a) of the Foreign Exchange Regulation Act, 1947, when it was shown that the respondent (accused) in that case voluntarily brought gold in India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. See also (1) Srinivas Mall Bairoliya v. King-Emperor AIR 1947 PC 135: 49 Bom LR 688: (1947) 2 MLJ 328, (2) Ravula Hariprasada Rao v. State 1951 SCR 322: AIR 1951 SC 204: 52 Cri LJ 768, and (3) Sarjoo Prasad v. State of U.P. (1961) 3 SCR 324: AIR 1961 SC 631: (1961) 1 Cri LJ 747 120. In this connection, we would also like to make reference to a judgment of Bombay High Court in State v. Abdul Aziz AIR 1962 Bom 243: 64 wherein a Division Bench while dealing with Section 5 of the Imports and Exports (Control) Act, 1947 under which the respondent (accused) was prosecuted has held thus : Section 5 of the Act of 1947 by itself makes no reference to mens rea. Abetment of the contravention of the order is coupled together with contravention itself in the same provision. It must, therefore, be treated as standing on the same footing. In our view, therefore, the offence of abetment also would not require any kind of mens r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with punishments for the substantive offences of terrorism and disruption respectively make the abetment of both the substantive offences also as penal offences. The definition of the word 'abet' is given for the first time in the Act of 1987 (TADA). 127. 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 1985 and 1987 Acts 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 comes 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'. 128. 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 ingredie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or General justifying the exclusion of 'mens rea' or intention or knowledge on the part of the person who communicates or associates with any person who is engaged in assisting in any manner terrorists or disruptionists cannot be countenanced in view of the fact that the substantive offences require by express provisions the intention on the part of the abettor. The decisions relied upon by him cannot be of any assistance to support his plea for exclusion of intention in view of the various factors inclusive of the requirement of the intention for the substantive offences. 133. Therefore, in order to remove the anomaly in the vague and imprecise definition of the word, 'abet', we for the above mentioned reasons, are of the view 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 terrorists or disruptionists 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. 134. To encapsulate, for the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther words, in the absence of any of the conditions, Section 3(1) cannot be invoked. Therefore, the contention that Section 3(1) suffers from vagueness and lacks guidance is unmerited. 138. In this regard, we would like to add that the learned Additional Solicitor General in his attempt to sustain the validity of Section 3 of the 1984 Act, submitted that the legislature considered it proper to prescribe a uniform procedure for serious offenses having a direct relationship with peace and tranquility of the area in the notified area after the notified date and that serious offenses which are likely to create terror and panic in the minds of the people were/are sought to be dealt with under the Act by prescribing a speedier trial so that disturbed situations could be brought under control without loss of time to prevent the situation from getting deteriorated and spreading to other areas. 139. We see some force in the above submission while negativing the contention of the counsel challenging the validity of Section 3 of the Act of 1984. Sections 3 and 4 of 1987 Act (TADA) 140. The legality and the efficaciousness of Sections 3 and 4 of 1987 Act have been assailed on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pts to harbour or conceal, any terrorist shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. 141. Since the Parliament has introduced two more sub- sections (5) and (6) to Section 3 of the Act of 1987 by the Terrorist and Disruptive Activities (Prevention) Amendment Act, 1993 (Act 43 of 1993) w.e.f. 22-5-1993, in order to have the full text of the section as amended, we reproduce those subsections hereunder: (5) Any person who is a member of a terrorists gang or a terrorists organisation, which is involved in terrorist acts, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (6) Whoever holds any property derived or obtained from commission of any terrorist act or has been acquired through the terrorist funds shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. Section 4 of the Act reads as follows: 4. Punishment for disr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 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 offenses 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. 143. Section 6(2) reads: For the purposes of this 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 subsection (1) shall, in relation to such person, have effect subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ahmadi, J. in Niranjan case (1990) 4 SCC 76: 1991 SCC (Cri) 47 stated thus: (SCC p. 86, para 8) 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 offenses 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 leveled 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 plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of an offence under the Act or any rule made thereunder, to pass an order in writing, declaring that any property whether movable or immovable or both, specified in the order belonging to the convicted person, shall stand forfeited to the Government free from all encumbrances. 152. Sub-section (2) of Section 8 states that it is open to the Designated Court trying an accused for any offence under the Act or any rule made thereunder to pass an order attaching all or any of the properties belonging to the accused during the period of his trial and in case the trial ends in conviction, the property will stand forfeited to the Government free from all encumbrances. 153. Sub-section (3)(a), (b) and (c) of Section 8 gives discretionary authority to the Designated Court to attach the property of an absconding accused and also the power to the Designated Court to apply Sections 83 to 85 of the Code of Criminal Procedure to such attachment as if the attachment was made under the Code of Criminal Procedure. 154. Section 82 of the Code deals with proclamation of persons absconding. Section 83 deals with attachment of property of persons absconding. Section 84 deals with the claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he principle of fair trial enshrined in Article 21 of the Constitution. 159. We shall now deal with the first contention. We have elaborately discussed about the legislative competence of the Parliament in legislating this law and rendered our finding that the Parliament is competent to enact the law (TADA) under residuary power under Article 248 of the Constitution read with Entry 97 of List I as well as Entry 1 of List I, namely, 'Defence of India' but not under Entry 1 of List II, namely, 'Public order'. Entry 95 of List I reads Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List;...... 160. As we have now found this impugned Act is enacted under Entry 1 of List I, the constitution of the Designated Courts by the Central Government cannot be said to be in violation of Entry 65 of List II which empower the State Legislature to constitute the courts. Under Section 9 of the Act, both the Central Government and the State Governments are authorised to constitute Designated Courts by notification under sub-section (2) of Section 9. It is made clear that the courts constituted by the Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel, will not serve the purpose of just and fair trial and it would be violating the principle enshrined in Article 21. For sustaining the above submission, reliance was placed on Special Courts Bill, 1978, In re (1979) 1 SCC 380: (1979) 2 SCR 476. 166. In that case, reference was made by the President under Article 143(1) of the Constitution for consideration of the question whether the Special Courts Bill, 1978 or any of its provisions if enacted would be constitutionally invalid. Clause (7) of the Bill provided that a Special Court shall be presided over by a sitting Judge of a High Court in India or a person who has held the office as a Judge in a High Court in India and nominated by the Central Government in consultation with the Chief Justice of India. (As we are concerned only with the question of the continuance of a Judge holding the office even on attaining the age of superannuation, we are not concerned about the other provisions or clauses of the Special Courts Bill.) 167. Chandrachud, C.J. speaking for the majority answered this question holding thus: (SCC p. 435, para 96) We are, therefore, of the opinion that clause (7) of the Bill violates Article 21 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncurrence under Section 11(2) should be held to be judicial in character. In support of his argument, he relied upon the decision in A.K. Kraipak v. Union of India (1969) 2 SCC 262: (1970) 1 SCR 457 and stated that the principle of natural justice, the purpose of which is to prevent miscarriage of justice, applies not only to judicial and quasi-judicial order but also to administrative order. Reference was also made to (1) K. (H.) (An Infant), In re(1967) 2 QB 617 : (1967) 1 All ER 226 (LR at p. 630), and (2) State of Orissa v. Dr (Miss) Binapani Dei (1967) 2 SCR 625 : AIR 1967 SC 1269. 54 (1979) 1 SCC 380: (1979) 2 SCR 476 171. During the course of the argument, Mr Tarkunde stated that even if, on consent of the accused, the concurrence is given, it would be a quasijudicial order and that the authority to transfer a case by way of a motion under Section 406 of the Code of Criminal Procedure vested on the Supreme Court is not taken away by the provision of this Act. He asserted that the accused should be given an opportunity for making his objection, if any, before any order is passed. He further stated that when cases are transferred en masse from one Designated Court to ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. This right can also 58 AIR 1988 P H 95 : (1988) 93 Punj LR 189 : 1988 Cri LJ 169 59 Union of India v. Tulsiram Patel, (1985) 3 SCC 398: 1985 SCC (L S) 672 be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands. In addition, he drew our attention to the decisions in (1) Satya Vir Singh v. Union of India (1985) 4 SCC 252: 1986 SCC (L S) 1, and (2) C.B. Gautam v. Union of India(1993) 1 SCC 78. 174. Coming to the other aspect of the argument of Mr Tarkunde with reference to Section 406 of the Code the learned Additional Solicitor General relied upon Section 25 of TADA Act which deals with the overriding effect of the provisions of the Act notwithstanding anything inconsistent therewith contained in any other enactment other than the TADA Act. He further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on- (a) it shall not be competent, at any time during the period of operation of such notification, for such local court to exercise any jurisdiction in respect of, or try, any offence under this Act or the rules made thereunder; (b) the jurisdiction which would have been, but for the issue of such notification, exercisable by such local court in respect of such offenses committed during the period of operation of such notification shall be exercisable by the specified court; (c) all cases relating to such offenses pending immediately before the date of issue of such notification before such local court shall stand transferred on that date to the specified court; (d) all cases taken cognizance of by, or transferred to, the specified court under clause (b) or clause (c) shall be dealt with and tried in accordance with this Act (whether during the period of operation of such notification or thereafter) as if such offenses had been committed within the local limits of the jurisdiction of the specified court or, as the case may be, transferred for trial to it under sub-section (2). Explanation 1. Explanation 2. 177. The concurrence of the Chief Justice of India has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es pending before the High Court or the High Courts and dispose of all the cases itself. 182. For transfer of criminal cases under Section 406 of the Code of Criminal Procedure, the Attorney General of India or a party interested may move an application by way of a motion (unlike Section 407 of the Code) accompanied by a supporting affidavit or affirmation before the Supreme Court to transfer cases and appeals from one High Court to another High Court or from a criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court. 183. Under Section 24 of the Code of Civil Procedure, the High Court and the District Court are given general power of transfer and withdrawal of cases either on an application of any of the parties after issuing notice and hearing them or on their own motion. Section 25 of the Code of Civil Procedure empowers the Supreme Court to transfer any suit, appeal and other proceedings from a High Court or civil court in one State to a High Court or other civil court in any other State on the application of a party and after issuing notice and hearing them. 184. The new Section 25 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Central Government. The according of the concurrence though imperative does not compel the Government to pass any order if, for any other intervening causes, the Central Government even after obtaining the concurrence decides that there is no necessity of transferring any case. In that situation the concurrence will have no effect. Therefore, the according of concurrence which is a condition precedent for passing the transfer order by the Government is only a statutory order and not a judicial order because there is no adjudication of any 'lis' and determination of any issue. Hence the final order passed by the Government may be open to judicial review but not the concurrence accorded which is only a statutory condition to be satisfied before passing the transfer order by the Central Government. 187. In this connection, we may refer to the decision in R. V. Cain (1975) 2 All ER 950: (1975) 3 WLR 131. In that case, the appellant was charged for an offence under the Explosive Substances Act, 1883. Section 7(1) of that Act required to obtain the consent of the Attorney General before proceeding further in that matter. The consent of the Attorney General as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k was made on the validity of the hotly debated Section 15 as per which the confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks, shall be admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this Act or rules made thereunder. [It may be mentioned that the words or co-accused, abettor or conspirator are inserted after the words trial of such person by the TADA (Amendment) Act, 1993 (No. 43 of 1993) w.e.f. 22-5-1993, with a proviso, reading Provided that co- accused, abettor or conspirator is charged and tried in the same case together with the accused. ] But before recording the confession under sub-section (1), the person making the confession should be given a statutory warning as contemplated under subsection (2) of Section 15. 193. Mr Ram Jethmalani made a scathing attack on this provision contending that this provision is atrocious and totally subversive of any civilized trial system and overrides Sections 25 and 26 of the Evidence Act and Sections 162 and 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution Bench stated that: (SCR headnote) Though a confession mentioned in Section 30 of the Indian Evidence Act is not evidence as defined by Section 3 of the Act, it is an element which may be taken into consideration by the criminal courts and in that sense, it may be described as evidence in a non- technical way. But in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person, it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to lend assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. 194.In continuation of his argument, the learned senior counsel has stressed that a police officer can easily find his own favourite informer, record his confession implicating whomsoever he wants and all those persons, forfeit their life and liberty unless they prove the contrary, namely, their innocence, which is an impossible burden to discharge and in that sense Section 21(1)(c) is subversive of all civilized noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confession cannot be proved as against a person accused of any offence. 198. The learned Additional Solicitor General strains his every nerve to overthrow the above argument articulating that the constitutional validity of Section 15 is to be determined on the basis of the competence of the Parliament to vary the procedure which is just and fair in the facts and circumstances of the situation with which the statute tends to grapple and not on the touchstone of the Evidence Act. This section, according to him, contains a significant safeguard by vesting the power of recording confession in superior police officer in order to prevent any misuse or abuse which safeguard has been approved by this Court in Gurbachan Singh v. State of Bombay1952 SCR 737 : AIR 1952 SC 221 : 1952 Cri LJ 1147 (SCR at p. 743) wherein it has been held that a law which contains an extraordinary procedure can be made to meet the exceptional circumstances otherwise the purpose and object of the Act would be defeated. 199. Coming to the intrinsic value to be attached to the evidence, it has been said by Additional Solicitor General that this section does not lay down the probative value of the confession no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Rules made under the Act has to observe some legal formalities and comply with certain conditions. If the confession is reduced into writing, then under sub-rule (3) of Rule 15, the said confession should be signed by the person making the confession and the police officer who records the confession should append a certificate as required by the rule. As Rule 15 has to be read with Section 15 of the TADA Act, we feel that it would be necessary to reproduce the rule so that the legal formality to be observed may be properly understood. 203. Rule 15 of the Terrorist and Disruptive Activities (Prevention) Rules, 1987 is as follows: 15. Recording of confession made to police officers.- A confession made by a person before a police officer and recorded by such police officer under Section 15 of the Act shall invariably be recorded in the language in which such confession is made and if that is not practicable, in the language used by such police officer for official purposes or in the language of the Designated Court and it shall form part of the record. (2) The confession so recorded shall be shown, read or played back to the person concerned and if he does not underst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of our Constitution embodies the principle of protection against compulsion of self- incrimination which is one of the fundamental canons of the British System of Criminal Jurisprudence and which has been adopted by the American System and incorporated in the Federal Acts. The Fifth Amendment of the Constitution of the United States of America provides, No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising... nor shall be compelled in any criminal case to be a witness against himself...... 207. The above principle is recognised to a substantial extent in the criminal administration of justice in our country by incorporating various statutory provisions. One of the components of the guarantee contained in Article 20(3) of the Constitution is that it is a protection against compulsion resulting in the accused of any offence giving evidence against himself. There are a number of outstanding decisions of this Court in explaining the intendment of Article 20(3). We feel that it would suffice if mere reference is made to some of the judgments, those being: (1) M.P. Sharma v. Satish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered, in consequence of that information received from a person accused of any offence while in custody of the police can be proved as against the accused. 210. In the context of the matter under discussion, two more provisions also may be referred to namely Sections 24 and 30 of the Evidence Act and Section 164 of the Code. 211. Section 24 of the Evidence Act makes a confession, caused to be made before any authority by an accused by any inducement, threat or promise, irrelevant in a criminal proceeding. Section 30 of the Evidence Act is to the effect that if a confession made by one or more persons, affecting himself and some others jointly tried for the same offence is proved, the court may take into consideration such confession as against such other persons as well as the maker of the confession. The explanation to the section reads that offence as used in this section includes the abetment of, or attempt to commit, the offence. 212. Section 164 of the Code speaks of recording of confessions and statements by Magistrates specified in that section by complying with the legal formalities and observing the statutory conditions including the appendage of a Certificate b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry procedural guarantees and safeguards are in consonance with the expression, according to procedure established by law enshrined in Article 21 of the Constitution within which fold the principle of just and fair trial is read into. 216. The procedure contemplated by Article 21 is that the procedure must be right, just and fair and not arbitrary, fanciful or oppressive. In order that the procedure is right, just and fair, it should conform to the principle of natural justice, that is, fair play in action . 217. If the procedural law is oppressive and violates the principle of just and fair trial offending Article 21 of the Constitution and is discriminatory violating the equal protection of laws offending Article 14 of the Constitution, then Section 15 of TADA Act is to be struck down. Therefore, it has become inevitably essential to examine the classification of 'offenders' and 'offenses' so as to enable us in deciding whether Section 15 is violative of Articles 14 and 21 of the Constitution. 218. The principle of legislative classification is an accepted principle where under persons may be classified into groups and such groups may differently be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under the provisions of TADA Act are a distinct class of persons and the procedure prescribed for trying them for the aggravated and incensed nature of offences are under different classification distinguishable from the ordinary criminals and procedure. This distinction and classification of grouping of the accused and the offences to be tried under TADA are to achieve the meaningful purpose and object of the Act as reflected from the preamble as well as the 'Statement of Objects and Reasons' about which we have elaborately dealt with in the preceding part of this judgment. 223. We have already disposed of the question with regard to the competence of the Parliament and have held in the earlier part of this judgment that the Parliament has got the legislative competence to enact this law namely the TADA Act and the Special Courts Act of 1984. When the validity of this section is scrutinised in the above background, we can safely hold that the procedure prescribed under this Act cannot be said to be unjust, unfair and oppressive, offending Articles 14 and 21 of the Constitution. 224. The learned Additional Solicitor General by giving a comparative chart of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1960 SC 457 :1960 Cri LJ 654 (SCR at pp. 651, 654, 656); and (8) A.K. Roy v. Union of India (1982) 1 SCC 271: 1982 SCC (Cri), 152: (1982) 2 SCR 272 wherein it has been held that liberty of individual has to be subordinated to the good of the people. 226. He on the basis of the above dictum laid down in those cited decisions, concluded that the reasonable and scientific classification of the offenses and offenders under TADA Acts cannot be said to be offending either Article 14 or Article 21 and as such the contention of the learned counsel attacking this provision should be thrown overboard. 227. Mr Tulsi, the other learned Additional Solicitor General and the other counsel supporting the validity of this provision made a common submission that the contention of the counsel attacking the legality of this provision tantamounts to an attempt to forcibly drag the substantive law through the coiled barbed wires of procedural law thereby making the substantial law bleeding and becoming dysfunctional and as such that contention should be discarded. 228. In the light of the 'ratio decidendi' regarding the legislative competence to enact a law prescribing a special pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court has rendered several judgments about the principle and policy of equality enshrined therein. 235. Fazl Ali, J. in State of Bombay v. F.N. Balsara97 (AIR at p. 326) approving the scope of Article 14 discussed in the case of Chiranjit Lal v. Union of India85 has laid down seven propositions as follows: 1. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds. 2. The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class. 3. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons often require separate, treatme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution. It was held by a majority of the Court, the learned Chief Justice dissenting, that Section 5 was void as it contravened Article 14. 239. Fazl Ali, J. in his separate judgment while disposing the contention that Section 5 was suffering from unconstitutionality observed: There is nothing sacred or sacrosanct about the test of reasonable classification, but it has undoubtedly proved to be a useful basis for meeting attacks on laws and official acts on the ground of infringement of the equality principle. In my opinion, it will be dangerous to introduce a subjective test when the article itself lays down a clear and objective test. that part of it with which alone we are concerned in this appeal, does offend against Article 14 of the Constitution and is therefore unconstitutional and void. 240. Mahajan, J. agreeing with the judgment of Mukherjea, J. expressed his view thus: The present statute suggests no reasonable basis or classification, either in respect of offences or in respect of cases. It has laid down no yardstick or measure for the grouping either of persons or of cases or of offences by which measure these groups could be distinguished fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t (TADA) has been made on grounds which are not germane or relevant to the policy and purpose of this Act and whether it is discriminatory so as to offend Article 14. In our considered opinion, the classifications have rational nexus with the object sought to be achieved by the TADA Acts and Special Courts Act and consequently there is no violation of Article 14 of the Constitution. 245. The next question is whether the procedure in recording the confession is just and fair. 246. The counsel were severely critical of the mode and method of obtaining a confession from an accused person. According to them, the oppressive behavior and excessive naked abuse and misuse of power by the police in extorting confession by compelling the accused to speak under the untold pain by using third degree methods with diabolical barbarity in utter violation of human rights, cannot be lost sight of or consigned to oblivion and the courts would not be justified by showing a volte-face and turning a blind eye to the above reality and drawing a legal presumption that the confession might have been obtained by a police officer not lower in rank than a Superintendent of Police in terms of Section 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y since then. We are aware that the police are still not totally free from adopting questionable practices while interrogating accused persons, but one cannot possibly deny that the greater vigilance now exercised by the public and the press, growing awareness of citizens about their individual rights under the law and increasing earnestness and commitment of the senior levels of command in the police structure to put down such malpractice have all tended to reduce the prevalence of such practices in the police to a lesser degree than before.... After a careful consideration of all aspects of this much debated question we feel that the stage has arrived now for us to take a small positive step towards removing this stigma on the police and make it possible for a confession made before a police officer to enter the area of judicial proceedings, if not as substantive evidence, at least as a document that could be taken into consideration by the court to aid it in inquiry or trial in the same manner as now provided in regard to case diaries under Section 172(2) CrPC and the confession of a co-accused under Section 30 of the Evidence Act. We are also of the view that this approach to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e admissible in some advanced countries like United Kingdom, United States of America, Australia and Canada etc.) having regard to the legal competence of the legislature to make the law prescribing a different mode of proof, the meaningful purpose and object of the legislation, the gravity of terrorism unleashed by the terrorists and disruptionists endangering not only the sovereignty and integrity of the country but also the normal life of the citizens, and the reluctance of even the victims as well as the public in coming forward, at the risk of their life, to give evidence hold that the impugned section cannot be said to be suffering from any vice of unconstitutionality. In fact, if the exigencies of certain situations warrant such a legislation then it is constitutionally permissible as ruled in a number of decisions of this Court, provided none of the fundamental rights under Chapter III of the Constitution is infringed. 254. In view of the legal position vesting authority on higher police officer to record the confession hitherto enjoyed by the judicial officer in the normal procedure, we state that there should be no breach of procedure and the accepted norms of recordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence against him. 259. Rule 15 of the TADA Rules imposes certain conditions on the police officer with regard to the mode of recording the confession and requires the police officer to make a memorandum at the end of the confession to the effect that he has explained to the maker that he was not bound to make the confession and that the confession, if made by him, would be used as against him and that he recorded the confession only on being satisfied that it was voluntarily made. Rule 15(5) requires that every confession recorded under Section 15 should be sent forthwith either to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and the Magistrate should forthwith forward the recorded confession received by him to the Designated Court taking cognizance of the offence. 260. For the foregoing discussion, we hold that Section 15 is not liable to be struck down since that section does not offend either Article 14 or Article 21 of the Constitution. 261. Notwithstanding our final conclusion made in relation to the intendment of Section 15, we would hasten to add that the recording of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in rank than of an Assistant Civil Surgeon; (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank of an Assistant Commissioner of Police in the Metropolitan cities and elsewhere of a Deputy Superintendent of Police or a police officer of equivalent rank, should investigate any offence punishable under this Act of 1987. This is necessary in view of the drastic provisions of this Act. More so when the Prevention of Corruption Act, 1988 under Section 17 and the Immoral Traffic Prevention Act, 1956 under Section 13, authorise only a police officer of a specified rank to investigate the offenses under those specified Acts. (5) The police officer if he is seeking the custody of any person for pre-indictment or pretrial interrogation from the judicial custody, must file an affidavit sworn by him explaining the reason not only for such custody but also for the delay, if any, in seeking the police custody; (6) In case, the person, taken for interrogation, on receipt of the statutory warning that he is not bound to make a confession and that if he does so, the said statement may be used against him as evidence, asserts his r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 152: (1982) 2 SCR 272 to the effect that : (SCC p. 342, para 106) The right to a public trial is not one of the guaranteed rights under our Constitution as it is under the 6th Amendment of the American Constitution which secures to persons charged with crimes a public, as well as speedy, trial. 268. While disposing a similar question, the Full Bench of the Punjab Haryana High Court in Bimal Kaur AIR 1988 P H 95 : (1988) 93 Punj LR 189: 1988 Cri LJ struck down Section 16(1) as offending Article 14 of the Constitution holding that Section 16(1) leaves no discretion to the court in the matter of deciding as to whether the court is to be held in public or in camera and also does not provide any guideline to instruct the Public Prosecutor as to in what cases he should demand open trial. 269. No doubt, the trials are traditionally open which is an indispensable attribute of the criminal justice. This characteristic flowed not merely from the public interest in seeing fairness and proper conduct in the administration of criminal trials, but, more important, the therapeutic value to the public of seeing its criminal laws in operation, purging the society of the outrage felt w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signated Court so desires. 272. By this new substituted sub-section now the discretion is given to the Designated Court either to hold or not to hold the proceedings in camera. 273. It is the further contention of the counsel that the remaining sub-sections of Section 16, save sub-section (1) of that section empower a court to keep back from the defence the names and addresses of the witnesses without which the accused cannot prepare his defence or successfully defend himself at the trial. The object of the cross- examination, according to them, in such circumstances, becomes futile and impotent. In continuation, it has been urged that Section 16(2) and (3) of Act 1987 empower the Designated Court to take measures for keeping the identity and address of witnesses secret and to issue directions for securing that their identity is not disclosed and that these provisions turn a trial under the provisions of TADA into a farce. 274. Mr Tarkunde states that it is true that in some cases the safety of witnesses requires the non-disclosure of the identity of the witnesses, but at the same time the cross- examination of witnesses is liable to be largely ineffective if their identi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e specific provisions prescribing the mode of recording evidence with the right of cross- examination of any witness by the accused as contemplated under Sections 244 as well as Sections 273, 275 and 276 of the Code. Both under the sessions trial and trial of warrant cases, the accused is given a discretionary right of deferring the cross examination of any witness or recalling any witness for further cross-examination [vide Sections 231(2), proviso to Section 242 sub-section (3)]. 278. Section 137 of the Evidence Act defines what cross- examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are : (1) to destroy or weaken the evidentiary value of the witness of his adversary; (2) to elicit facts in favour of the cross- examining lawyer's client from the mouth of the witness of the adversary party; (3) to show that the witness is unworthy of belief by impeaching the credit of the said witness; and the questions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make the procedure unreasonable having regard to the avowed intention of the legislature in making the enactment. The law is certainly an extraordinary one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitutes a menace to the safety of the public residing therein. This object would be wholly defeated if a right to confront or cross-examine these witnesses was given to the suspect. down under the ordinary law has been provided for a particular class of persons against whom proceedings could be taken under Section 27(1) of the City of Bombay Police Act, but the discrimination if any is based upon a reasonable classification which is within the competency of the legislature to make. Having regard to the objective which the legislation has in view and the policy underlying it, a departure from the ordinary procedure can certainly be justified as the best means of giving effect to the object of the legislature. 284. In Hira Nath Mishra v. Principal, Rajendra Medical College, Ranchi98 a complaint was made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cross-examination and the matter must rest there. We are therefore of the opinion that, in the proceedings before the Advisory Board, the detenu has no right to cross-examine either the persons on the basis of whose statement the order of detention is made or the detaining authority. 286. Under Section 16(2) of the 1987 Act, the Designated Court is given only a discretionary authority to keep the identity and address of any witness secret on the following three contingencies : (1) On an application made by a witness in any proceedings before it; or (2) on an application made by the Public Prosecutor in relation to such witness; or (3) on its own motion. 287. Sub-section (3) classifies only the measures to be taken by the Designated Court while exercising its discretion under sub-section (2). If neither the witness nor the Public Prosecutor has made an application in that behalf nor the court has taken any decision of its own then the identity and addresses of the witnesses have to be famished to the accused. The measures are to be taken by the Designated Court under any one of the above contingencies so that a witness or witnesses may not be subjected to any harassm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the witnesses especially of the potential witnesses whose life may be in danger. Section 19 of 198 7 Act 291. This section provides that notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order not being an interlocutory order of a Designated Court to the Supreme Court both on facts and on law. Sub-section (2) of that section makes it clear that except as contemplated under sub-section (1) of that section, no appeal or revision shall lie to any other court. 292. The above provision is attacked solely on the ground that the conferment of the right of appeal and further appeal to the Supreme Court on grant of leave under Article 136 of the Constitution, both at the remedial and procedural level, is taken away by the statutory compulsion under the guise of speedy trial even in respect of a conviction under the provisions of ordinary criminal law even though the charge for the offence under the TADA Act has ended in acquittal, and the taking away of the right of Cri LJ traditional appeal or revision will cause great hardship and make one to suffer in incurring heavy expenditure especially those who are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which case the aggrieved person has to deny himself firstly, the right of appeal to the High Court and secondly, the benefit of approaching the Supreme Court under Article 136 of the Constitution. If every such person aggrieved by the judgment and order of the Designated Court passed under any criminal law other than the TADA Act has to approach the Supreme Court from far-flung areas, many of the persons suffering from financial constraints may not even think of preferring an appeal at all but to languish in jail indefinitely on that count. The statutory compulsion, in such a situation as pointed out by the counsel, would not only deny fair play and justice to such person but also amount to destruction of the professed object of criminal justice system in the absence of any other valid reason for an abnormal procedure. 296. This predicament and practical difficulty an aggrieved person has to suffer can be avoided if a person who is tried by the Designated Court for offences under the TADA Act but convicted only under other penal provisions and is acquitted of the offences under the provisions of TADA, Is given the right of preferring an appeal before the next appellate court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 164(1) of the Code is made substantially applicable in relation to a case involving an offence punishable under the TADA Act or any rule made thereunder. But the modification is only with reference to Judicial Magistrates who are empowered to record any confession or statement made to him in the course of an investigation under Chapter XII or under any other law for the time being in force, that is to say, the expressions 'Metropolitan Magistrate' and 'Judicial Magistrate' should be construed as a reference to Metropolitan Magistrate, Judicial Magistrate, Executive Magistrate or Special Executive Magistrate. In other words, the Executive Magistrate and Special Executive Magistrate are included along with the Metropolitan Magistrate and Judicial Magistrate and they are all empowered to record the confession or statement. 302. Section 3 of the Code deals with the construction of references to the words 'Magistrates', 'Magistrate of the Second Class', 'Magistrate of the First Class' and 'the Chief Judicial Magistrate'. The classes of criminal courts contemplated under Section 6 of the Code read as follows : 6. Classes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two categories of Magistrates, judicial under the control of the High Court and the executive under the control of the State Government, the new Code has provided for, make for the simple scheme of separation of the judiciary from the executive on an all India basis. The Executive Magistrates have not been further classified evidently for the reason that the judicial functions to be performed by the Executive Magistrates under the new Code are very few. Broadly speaking the functions which are essentially of judicial nature are for the Judicial Magistrates and the functions which are of police and administrative nature are for the Executive Magistrates as appears from the rules of construction contained in sub-section (4) of Section 3. When Section 6 brings Executive Magistrates' Courts as one of the classes of criminal courts, it must be held that it is acting as a criminal court. The orders passed by the criminal courts inclusive of the Executive Magistrates are revisable as having been passed in 'judicial proceedings'. See R. Subramaniam v. Commissioner of Police AIR 1964 Mad 185: (1964) 1 Cri LJ 519. As pointed out above, there is no classification or gradation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs under Chapter VIII also an explanation was added to Section 273 of the Code reading : In this Section, 'accused' includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code. 308. It may be noted, in this connection that certain legislative changes were made in Section 436 of the old Code corresponding to Section 398 of the new Code by substituting the expression person accused of an offence by Act XVIII of 1923 so as to make Section 436 of the Code inapplicable to the security proceedings as well as to proceedings under Sections 133, 134 and 135 of the Code. See Directorate of Enforcement v. Deepak Mahajal(1994) 3 SCC 440: JT (1994) 1 SC 290. 309. Therefore, merely because the Executive Magistrates and Special Executive Magistrates are included along with the other Judicial Magistrates in Section 164(1) of the Code and empowered with the authority of recording confessions in relation to the case under the TADA Act, it cannot be said that it is contrary to the accepted principles of criminal jurisprudence and that the Executive Magistrates and Special Executive Magistrates are personam outside the ambit of machin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved, the learned Judges went further to the question with regard to the interpretation of Article 217(2)(a) and 236(b) and so on which are not germane for the determination of the question with which we are confronted. See also Chandra Mohan v.State of Up. (1967) 1 SCR 77: AIR 1966 SC 1987 315. In this context, we feel that it would be quite significant to recall the opinion of a Constitution Bench in Ram Jawaya Kapur v. State of Punjab AIR 1955 SC 549: (1955) 2 SCR 225. In that case, Mukherjea, C.J. while dealing with the scope of separation of powers has observed thus : (AIR at p. 556) The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated it by the legislature. It can also, when so empowered, exercise judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible oblique motive, are of the opinion that it would be always desirable and appreciable that a confession or statement of a person is recorded by the Judicial Magistrate whenever the Magistrate is available in preference to the Executive Magistrates unless there is compelling and justifiable reason to get the confession or statement, recorded by the Executive or Special Executive Magistrates. Sub-section (4) of Section 20 of 1987 Act 318. Sub-section (4) of Section 20 (as amended by Act 43 of 1993) reads thus: 4. Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act or any rule made thereunder subject to the modifications that (a) the reference in sub-section (1) thereof to 'Judicial Magistrate' shall be construed as a reference to 'Judicial Magistrate or Executive Magistrate or Special Executive Magistrate'; (b) the references in sub-section (2) thereof to 'fifteen days', ninety days' and 'sixty days', wherever they occur, shall be construed as references to 'sixty days', 'one hundred and eighty days' and 'one hundred and eighty days' respectively; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation relates to any other offence. The words 'ninety days' and 'sixty days' are construed to be under clause (b) of sub-section 4 as 'one year' and 'one year' respectively. However, by the Amendment Act 43 of 1993, one year period is reduced to one hundred and eighty days but subject to the newly introduced proviso where under 'one hundred and eighty days' can be extended up to 'one year' on the report of Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention beyond the said period of 'one hundred and eighty days'. The extended period of remand of one year now reduced to one hundred and eighty days, subject to the proviso, is attacked on the ground that this extended period of detention of an accused is not in tune with the spirit of the doctrine of speedy trial'. This criticism is resisted by the learned Additional Solicitor General stating that in view of the activities of terrorists and disruptionists covering wide range of area both domestically and internationally the extended period of detention is justifiably required since it is not possible to complete t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he class of persons charged with commission of offenses under the Penal Code and the offenses created by other statutes. The persons indulging in terrorist act form a member of well organised secret movement. The enforcing agencies find it difficult to lay their hands on them. Unless the Police is able to secure clue as to who are the persons behind this movement, how it is organised, who are its active members and how they operate, it cannot hope to put an end to this movement and restore public order. The Police can secure this knowledge only from the arrested terrorists after effective interrogation. If the real offenders apprehending arrest are able to secure anticipatory bail then the police shall virtually be denied the said opportunity. 327. It is needless to emphasise that both the Parliament as well as the State Legislatures have got legislative competence to enact any law relating to the Code of Criminal Procedure. No provision relating to anticipatory bail was in the old Code and it was introduced for the first time in the present Code of 1973 on the suggestion made of the Forty-first Report of the Law Commission and the Joint Committee Report. It may be noted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement that the removal of Section 438 at any time will amount to violation of Article 21 of the Constitution. 330. Hence for the aforementioned reasons, the attack made on the validity of sub-section (7) of Section 20 has to fail. Section 9 of Code of Criminal Procedure (U.P. Amendment) Act, 1976 331. As the constitutional validity of Section 9 of U.P. Act 16 of 1976 is attacked on the same ground of sub-section (7) of Section 20 of the Act, we would like to dispose of a batch of writ petitions filed by several petitions confining the question only with regard to the constitutional validity of Section 9 of the U.P. Amendment Act 16 of 1976 by which the U.P. Legislature has deleted the operation of Section 438 of the Code w.e.f. 2811-1975. The facts of the cases are not relevant, except to the extent that the first information reports in all those cases have been lodged for various offenses mainly under Section 302 IPC. The questions which arise for consideration are : (a) whether the State Legislature has legislative competence to delete Section 438 of the Code; and (b) whether the U.P. Act 16 of 1976 is violative of Articles 14, 19 and 21 of the Constitution. 332. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a qualifying provision to sub-section (8), it has become imperative while interpreting sub-section (8) to construe sub-section (9) also along with sub-section (8). Therefore, we would like to reproduce both the sub-sections (8) and (9) of Section 20 hereunder : (8) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless- (a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (9) The limitations on granting of bail specified in sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail. 336. Much earlier to the enactment of the Acts of 1984, 1985 and 1987, there was a similar provision, namely, Rule 184 of the Defence and Internal Security of India Rules, 1971 (for short 'Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 371 wherein Krishna Iyer, J. has commenced his judgment with a prefatory note reading, 'Bail or jail?' at the pretrial or post-conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion and observed, The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19 - Mr Tarkunde asserts that this provision is totally in violation of Article 21. 340. Mr Jethmalani attacks this provision contending that it is the most obnoxious and unfair provision, requiring the court to certify that the accused is not likely to commit any offence while on bail . He pleads to declare this clause as unconstitutional, based on the observation of the Full Bench of Punjab and Haryana High Court in Bimal Kaur AIR 1988 P H 95 : (1988) 93 Punj LR 189 : 1988 Cri LJ 169. 341. The learned Additional Solicitor General attempts to meet the above arguments stating that there is no question of unconstit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il on fulfillment of two conditions, namely (1) if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; and (2) if the offence complained of is a cognizable offence and that the accused had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more or he had previously convicted on two or more occasions of a non-bailable and cognizable offence. Of course, these two conditions are subject to three provisos attached to sub-section (1) of Section 437. But we are not very much concerned about the provisos. However, sub-section (3) of Section 437 gives discretion to the court to grant bail attached with some conditions if it considers necessary or in the interest of justice. For proper understanding of those conditions or limitations to which two other conditions under clauses (a) and (b) of sub-section (8) of Section 20 of the TADA Act are attached, we reproduce those conditions in Section 437(3) hereunder 437. (3) (a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned therein is not satisfied, the ban operates and the accused person cannot be released on bail but of course it is subject to Section 167(2) as modified by Section 20(4) of the TADA Act in relation to a case under the provisions of TADA Act. 346. Though the conditions of Rule 184 of 1971 Rules are more or less similar to those of the limitations imposed in Section 20(8) of the Act, this Court in Balchand Jain v. State of M.P.112 set aside the order of the arrest rejecting the bail application on the ground that the power conferred by Section 438 is not taken away by Rule 184 as there was no provision in that rule over-riding Section 438. [But under the TADA Act Section 20(7) completely excludes the application of Section 438 of the Code.] However, in Balchand112 Bhagwati, J. (as the learned Chief Justice then was) speaking for the Bench observed as follows : (SCC p. 577, para 3) The Rule, on its plain terms, does not confer any power on the Court to release a person accused or convicted of contravention of any Rule or order made under the Rules, on bail. It postulates the existence of power in the Court under the Code of Criminal Procedure and seeks to place a curb on its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 439 of the Code but Section 437 being a court other than the High Court or the Court of Session. Any other view would lead to an anomalous situation. If it were to be held that the power of a Designated Court to grant bail was relatable to Section 439 it would imply that not only the High Court but also the Court of Session would be entitled to grant bail on such terms as they deem fit. The power to grant bail under Section 439 is unfettered by any conditions and limitations like Section 437. It would run counter to the express prohibition contained in Section 20(8) of the Act which enjoins that notwithstanding anything in the Code, no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail unless the conditions set forth in clauses (a) and (b) are satisfied. Lastly, both the decision in Balchand Jain(1976) 4 SCC 572: 1976 SCC (Cri) 689: (1977) 2 SCR 52 and that in Ishwar Chand ILRI975HP569 turn on the scheme of the Defence and Internal Security of India Act, 1971. They proceed on the well recognise d principle that an ouster of jurisdiction of the ordinary courts is not to be readily inferred except by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other Acts such as clause (i) of Section 437(1) of the Code and Section 35(1) of FERA and 104(1) of the Customs Act, cannot be said to be an unreasonable condition infringing the principle of Article 21 of the Constitution. 350. In view of the detailed discussion made above, we set aside the conclusion of the Punjab and Haryana High Court in Bimal Kaur AIR 1988 P H 95 :(1988) 93 Punj LR 189: 1988 Cri LJ 169 holding, Therefore, the last portion of clause (b) of subsection (8) of Section 20 of the Act, which reads 'and that he is not likely to commit any offence while on bail' alone ... is ultra vires . 351. No doubt, liberty of a citizen must be zealously safeguarded by the courts; nonetheless the courts while dispensing justice in cases like the one under the TADA Act, should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear and above all the collective interest of the community and the safety of the nation so that the public may not loose faith in the system of judicial administration and indulge in private retribution. 352. It is true that on many occasions, we have come across cases wherein the prose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly at the stage of taking cognizance of the offence after filing of the charge-sheet that the Designated Court can exercise its powers under Section 18 of the TADA Act and till then, if the investigation has taken a considerable period of time, as in the present case, and if no prima facie case is disclosed for applying the provisions of the TADA Act, the Court can exercise its powers under Article 226 of the Constitution to entertain a petition...... 355. In Usmanbhai(1988) 2 SCC 271 : 1988 SCC (Cri) 318 one of the questions of substantial importance was as to the jurisdiction and power of the High Court to grant bail under Section 439 of the Code or by recourse to its inherent powers under Section 482 to a person held in custody accused of an offence under Sections 3 and 4 of the TADA Act of 1987, During the course of the discussion, one of the questions posed for consideration was whether a bail application can be moved before the High Court under Article 226 or Article 227 of the Constitution. The Court answered that question holding thus : (SCC p. 283, para 12) At the very outset, Shri Poti, learned counsel appearing for the State Government with his usual fairness, unequi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result in conviction for an offence under TADA Act. ... There was thus no justification for the High Court in the present case to exercise it jurisdiction under Article 226 of the Constitution for examining the merits of the controversy much less for quashing the prosecution of respondent Abdul Hamid in the Designated Court for offenses punishable under TADA Act. After observing thus, the Court finally concluded : (SCC p. 671, para 10) The view taken by the High Court on this aspect is contrary to law apart from being unjustified and impermissible in exercise of its jurisdiction under Article 226 of the Constitution. 358. Shri V.R. Reddy, the learned Additional Solicitor General appearing in Criminal Appeal No. 172 of 1992 has raised a serious objection that the High Court in its power of superintendence under Article 227 of the Constitution has no jurisdiction in matters relating to TADA provisions ignoring the manifest intention of the Parliament to exclude the jurisdiction of the High Courts in such matters. In support of his submission, he cited several decisions dealing with the power of superintendence of the High Court under Article 227, those being: (1) Waryam Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jacket. However, we would like to emphasise and re- emphasise 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 Article 136 of the Constitution. 360. Though no oral argument has been advanced by the learned counsel challenging the validity of this provision, since we are scrutinising the entire Act, we feel that it would be better if our view on this provision is also recorded. However, Mr Jethmalani in his written submissions has stated that this section is unintelligible and that it is quite impossible to identify any person on the basis of his photograph especially in the present day when trick photographs are being taken. I see much force in this submission. 361. If the evidence regarding the identification on the basis of a photograph is to be held to have the same value as the evidence of a test identification parade, we feel that gross injustice to the detriment of the persons suspected may result. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are undoubtedly committed to uphold human rights even as a part of long standing heritage and as enshrined in our constitutional law. We feel that this perspective needs to be kept in view by every law enforcing authority because the recognition of the inherent dignity and of the equal and inalienable rights of the citizens is the foundation of freedom, justice and peace in the world. If the human rights are outraged, then the court should set its face against such violation of human rights by exercising its majestic judicial authority. 366. The protection that the citizens enjoy under the Rule of Law are the quintessence of two thousand years of human struggling from Adam. It is not commonly realised how easily this may be lost. There is no known method of retaining them but by eternal vigilance. There is no institution to which the duty can be delegated except to the judiciary. If the law enforcing authority becomes a law breaker, it breeds contempt for law, it invites every man to become a law unto himself and ultimately it invites anarchy. 367. Many a time in human history, great societies have crumbled into oblivion through their failure to realise the significance of cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of service even at the initial stage of appointment so that no one may entertain any grievance for continuance of service of a Judge of the Designated Court after attainment of superannuation; (8) The order granting 'concurrence' by the Chief Justice of India on a motion moved in that behalf by the Attorney General to transfer any case pending before a Designated Court in that State to any other Designated Court within that State or in other State, is only a statutory order and not a judicial order since there is no adjudication of any 'lis' and determination of any issue. Therefore, sub-sections (2) and (3) of Section 11 are not violative of Articles 14 of the Constitution; (9) Section 15 of the TADA Act is neither violative of Article 14 nor of Article 21. But the Central Government may take note of certain guidelines which we have suggested and incorporate them by appropriate amendments in the Act and the Rules made thereunder; (10) The challenge made to Section 16(1) does not require any consideration in view of the substitution of the newly introduced sub-section by Amendment Act 43 of 1994 giving discretion to the Designated Court either to hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed of any offence punishable under the Act or any rule made thereunder, but diluting the ban only on the fulfillment of the two conditions mentioned in clauses (a) and (b) of that sub-section cannot be said to be infringing the principle adumbrated in Article 21 of the Constitution; (17) 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 pass orders either way, relating to the cases under the Act 1987, that power should be exercised sparingly, that too only in rare and appropriate cases in extreme circumstances. But the judicial discipline and comity of courts require that the High Courts should refrain from exercising the extraordinary jurisdiction in such matters; (18) Section 22 of the TADA Act is struck down as being opposed to the fair and reasonable procedure enshrined in Article 21 of the Constitution. 369. Keeping in view the doctrine of 'speedy trial' which is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution and which concept is manifested in the Special Courts Act, 1984 and TADA Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of expression, belief and movement are the means for excellence. The right to life with human dignity of person is a fundamental right of every citizen for pursuit of happiness and excellence. Personal freedom is a basic condition for full development of human personality. Article 21 of the Constitution protects right to life which is the most precious right in a civilised society. The trinity i.e. liberty, equality and fraternity always blossoms and enlivens the flower of human dignity. One of the gifts of democracy to mankind is the right to personal liberty. Life and personal freedom are the prized jewels under Article 19 conjointly assured by Articles 20(3), 21 and 22 of the Constitution and Article 19 ensures freedom of movement. Liberty aims at freedom not only from arbitrary restraint but also to secure such conditions which are essential for the full development of human personality. Liberty is the essential concomitant for other rights without which a man cannot be at his best. The essence of all civil liberties is to keep alive the freedom of the individual subject to the limitations of social control envisaged in diverse articles in the chapter of Fundamental Rights Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising restraint which society controls over the individual. Therefore, liberty of each citizen is borne of and must be subordinated to the liberty of the greatest number, in other words common happiness as an end of the society, lest lawlessness and anarchy will tamper social weal and harmony and powerful courses or forces would be at work to undermine social welfare and order. Thus the essence of civil liberty is to keep alive the freedom of the individual subject to the limitation of social control which could be adjusted according to the needs of the dynamic social evolution. 374. The modem social evolution is the growing need to keep individual to be as free as possible, consistent with his correlative obligation to the society. According to Dr Ambedkar in his closing speech in the Constituent Assembly, the principles of liberty, equality and fraternity are not to be treated as separate entities but in a trinity. They form the union or trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality. Equality cannot be divorced from liberty. Nor can equality and liberty be divorced from fraternity. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson has social or statutory duty to assist the police, exceptions have been engrafted and it is a constitutional mandate under Articles 20(3) and 21 as a fundamental right against self-incrimination. Article 3 of Declaration of Human Rights assures that everyone has right to life, liberty and security of person. The constitutional and human rights commitment, therefore, is that no one shall be constrained to commit himself out of his own mouth. In other words, the procedural checks are the valued means to prevent excess and civilises the actions of the executive. Articles 20(3) and 21 accord, therefore, to every person privilege against self-incrimination as part of right to life which reflects many of fundamental values, the notable ones being unwillingness to subject those suspected of crime to the cruel or inhuman treatment of self-accusation, and abuse of person. It is a protection to the innocent or may be a shelter or shield to the guilty but so far as the constitutional protection is available, its deprivation is permissible only in accordance with law consistent with the mandate of Articles 20 to 22 of the Constitution. 377. Custodial interrogation exposes the suspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal strain, the question of voluntariness has sometimes to be decided as a matter of degree. In Confession and the Social Psychology of Coercion by Edwin D. Driver, Professor of Sociology, University of Massachusetts [1968-69 (Vol. 82) Harvard Law Review 42 at pp. 48, 50-60], it is stated that voluntariness is a test for admissibility of confession. Courts have to consider mental abuse as well as physical force and threats, deficiencies and talents peculiar to the individual defendant are to be assessed, and an investigation into the totality of the circumstances surrounding the confession is required to be gone into. Since in custody interrogations are highly secretive, the courts have to infer what transpired from questionable data. Police adopt successful tactics for eliciting confessions; crucial importance is of self-confidence, which may not remain intact in interrogation. Barred are physical abuse or threats, mental coercion, lengthy detention or interrogations, inducements or promises of legal gains which are some of the grounds to infer involuntariness. In addition to the interrogation setting and the propensities of the interrogator, the ethical interrogator still has an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e whole administration of criminal justice, which ensues when public officers commit widespread violations of the Constitutions of the United States and the States, and follow these by cynical accounts of voluntariness , not convincing to any person who studies the record, or even to the casual newspaper reader and they would suspect the constitutional and legal rights systematically (sic) deny them on grounds of expediency, popular respect for the system for the processes of law enforcement, and for the men engaged in it inevitably declines. Crime is contagious, if the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means to declare that the Government may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution. The only effective way to establish a constitutional regime in the administration of criminal justice is for the administrative superiors of police and prosecutors to insist on compliance of the constitutional mandate to see that nothing occurs which deprives the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Rosemary Patenden of University of East Anglia it was stated at pp. 318-19 that coercion is produced by situational factors accusation by a person in a position of authority by fact and intimidating environment and the use of psychological interrogation techniques by the police. The police use these tactics to extract true confession, but an innocent suspect who is susceptible to intimidation may respond by confessing to something which he did not do. The majority of untrue statements that come before the courts, probably from coerced-complaint suspect. The suspect goes along with the views of the interrogator without internalising these views as his own in order to please or to gain some temporary advantage bail, termination of an unpleasant interrogation, possibly an end to violence or the threat of violence. According to an eminent forensic psychologist, Armstrong, confession falls into various categories. In the Principles of Criminal Evidence by A.A.S. Suckerman at pp. 302-306 it is stated that in order to preserve our freedom from excessive State interference the police powers have to be strictly limited and assiduously supervised. The custodial interrogation lays the suspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommitted and the precious lives of countless innocent people are put an end to and innocent people are at the mercy of the terrorists and gangsters by planting bomb at public places, etc. Law abiding citizens become easy targets of killing and equally of law enforcement officers to demoralise the public or to achieve their object of intimidating the political power to come to terms with them or the people who rally around them to achieve their alleged perceptions or programmes undermining the constitutional limitations. They violate law with contempt and destabilise social well-being and order. Large number of youth and educated unemployed are indoctrinated to crime or indulge in violence. Hardened criminals are equally involved in greater number. They are using latest sophisticated arms and ammunition, weaponry in committing heinous crimes. 381. Equally true that in the midst of clash of interests, the individual interest would be subservient to social interest, yet so long as ubi jus, ebi remedium is available the procedure prescribed and the actions taken thereon by the law enforcement authority must meet the test of the constitutional mandates. 382. In a recent Working Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed. Therefore, confession means an admission of certain facts which constitute an offence or substantially all the facts that constitute the offence, made by a person charged with the offence which is the subject-matter of the statement. In Pakala Narayana Swami v. King-Emperor 66IA66,81:AIR1939PC47:40CriU364 Lord Atkin, held at p. 81 thus: An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession. Sections 24 to 30 of the Evidence Act deal with provability or relevancy of a confession. A confession made by an accused person is irrelevant if it appears to the court to have been caused by inducement, promise or threat having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is dangerous to depend upon a confession made to a police officer which cannot extricate itself from the suspicion that it might have been produced by the exercise of coercion or by enticement. The legislative policy and practical reality emphasise that a statement obtained, while the accused is in police custody, truly be not the product of his free choice. So a confessional statement obtained by the law enforcement officer is inadmissible in evidence. 384. In Chapter 12 of the Code, Information by the police and their powers to investigate , Section 162 mandates that no statement made by any person to a police officer in the course of an investigation shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. Under the proviso to sub-section (1) it may be used by the accused, and with the permission of the court, by the prosecution, to contradict such witness in the manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also append a memorandum at the foot of the record as laid down in sub- section (4). If he has no jurisdiction to inquire into or try the offence he shall forward the confession so recorded to the Magistrate by whom the case is to be inquired into or tried. High Courts have made rules in this behalf to give sufficient time to the accused for reflection, relevant warnings and other related procedural safeguards, etc. 386. The Magistrate before recording the confession should properly question the accused, as far as may be necessary, elicit from him whatever facts he is willing to state; to understand exactly what his meaning is and how far he intends his confession or admission to go. The confession must be recorded with great care and circumspection. The Magistrate must record the questions put to the accused to ascertain whether the confession was of voluntary nature, that he will not have to go back to the police custody after statement was recorded; to warn the accused of the consequences which would ensue if the confession is false or if he has in the hope of release implicated himself and to ask the accused whether the police or any other person had subjected him to ill-tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict compliance with Sections 164 and 281 and the rules made thereunder, the confession would be admissible, although it is retracted. In Nazir Ahmad case AIR 1936 PC 253: 37 Cri LJ 897 it was held that a confession recorded by a Magistrate without conforming to the provisions of Section 164 or Section 364 of CrPC renders the precautions laid in those provisions of such trifling value as to be almost idle. A confession duly recorded with the prescribed certificate appended to it may be presumed to be voluntary and be admissible in evidence subject to the conditions contained in Sections 24 to 30. A retracted confession may form basis for conviction of that accused, if it receives some general corroboration from other independent source. 389. When the Indian Evidence Act was enacted, the British Parliament had with them the Law Commission's Report that the police resorted to extort confession by force, threat or inducement and therefore had taken care of elaborate safeguards engrafted in Sections 24 to 30 to exclude from evidence confession obtained in the stated circumstances with an exception of Section 27 that fact discovered in consequence of the statement made by the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which sounds or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or rules made thereunder. (2) The police officer shall, before recording any confession under sub- section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily. (emphasis supplied) 393. There cannot be a dispute with the proposition, as argued by Shri Tulsi, learned Additional Solicitor General, that the Legislature when has power to make the Evidence Act, has equally power to amend and alter the pre- existing procedure in the light of the changing needs of the society and that there is no vested right to procedure. The legislature can equally take away the procedure by omitting it by amendment. We are not concerned so much with the power of the Parliament to make the law and it does possess such power under Article 248 and Entry 97 of List 1. Equally it is settled law that conferment of power in a high r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stly protect the accused. The procedural safeguards are indispensable essence of liberty. The history of personal liberty is largely the history of procedural safeguards. The procedure contemplated by Article 21 of the Constitution means just and fair procedure and reasonable law but not formal or fanciful. The standard of fairness in recording confession under Section 15(1) of the Act must be within constitutionally sustainable parameters. No person shall be deprived of his life or personal liberty except in accordance with the procedure established by law mandated by Article 21, would mean that a person shall not be subjected to coercion which does not admit of legal justification. Procedure envisaged in Article 20(3) is the manner, means and the form in which the right is enforced, or the person is subjected to. Though the Constitution does not guarantee any particular procedure and the legislature is left free to lay down the procedure, Articles 14 and 21 prescribe in built limitation in prescribing the procedure, i.e., there must be fundamental fairness in the procedure prescribed by law and should not be unconscionable or oppressive. 395. Article 50 enjoins the State to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncriminated the maker when figuring as accused person. In Nandini Satpathy v. P.L. Dani(1978) 2 SCC 424: 1978 SCC (Cri) 236: (1978) 3 SCR 608 it was further held that compelled testimony must be read as evidence procured not merely by physical threat or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like not legal penalty for violation. 397. The expression life or personal liberty in Article 21 of the Constitution as stated hereinbefore includes right to live with human dignity which would include guarantee against torture and assault by the State. This Court in Sunil Batra v. Delhi Administration (1) (1978) 4 SCC 494: 1979 SCC (Cri) 155: AIR 1978 SC 1675 and Sunil Batra v. Delhi Administration(II) (1980) 3 SCC 488: 1980 SCC (Cri) 777: AIR 1980 SC 1579 held that Article 21 guarantees protection against torture and assault by the State while a person is in custody. It is a legitimate right of the police to arrest a suspect on receiving some credible information or material, but the arrest must be in accordance with law and the interrogation should not be accompanied with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd civilised procedure. Whether such fundamental fairness has been denied is to be determined by an appraisal of the totality of facts, gathered from the setting, the contents and the procedure which feed the end result. The procedure which smacks of the denial of fundamental fairness and shocks the conscience or universal sense of justice is an anathema to just, fair or reasonable procedure. Articles 14 and 21 frown against arbitrary and oppressive procedure. 399. The procedure envisaged in Article 21 means the manner and method of discovering the truth. Section 36 of the Code also empowers superior police officer or an officer-in-charge of the police station to exercise the same powers throughout his local area. The Superintendent of Police is in-charge of the district police administration. Under Section 2(h) of the Code investigation includes all proceedings under the code for collection of evidence conducted by the police officer other than an authorised Magistrate in that behalf. A superior police officer in-charge to maintain law and order, while recording confession of a person in police custody though ostensibly complying with Section 15(2) of the Act whether would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifice of law. The principle of justice is ingrained in our conscience and though ours is a nascent democracy it has now taken deep roots in our ethos of adjudication, judicial process, be it judicial, quasi-judicial or administrative, is hallmark. Respect for law is one of the essential principles for an effective operation of popular Government. It is the courts and not the legislature that our citizens primarily feel with keen abiding faith for redress, the cutting edge of the law. If they have respect for the working of their courts, their respect for law will survive the shortcomings of every other branch of the Government. If they lose their respect for the work of the courts, their respect for law and order will vanish with it to the great detriment of the society. Conferment of judicial powers in higher degree on the police will erode public confidence in the administration of justice. The veil of expediency to try the cases by the persons acquainted with the facts and to track the problems posed or to strike down the crime or suppression thereof cannot be regarded as a valid ground to give primacy to the arbitrary or irrational or ultra vires action taken by the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ari, the US Supreme Court held, per majority of five Judges, that the Fifth Amendment makes the privilege against self incrimination applicable to the States. The privilege, if properly invoked in a State proceeding, is governed by federal standards and the petitioner's claim of the privilege should have been upheld. 403. In William Murphy v. Waterfront Commission of New York Harbor 378 US 52: 12 L Ed 2d 678 (1964) when the witnesses refused to answer the questions on the ground that the answers might tend to incriminate them under federal law, to which the grant of immunity did not purport to extend, the superior court, the New Jersey Supreme Court held them guilty of civil contempt. On certiorari, the Supreme Court of US, per majority, held that the constitutional privilege against self-incrimination protects the witnesses against incrimination under federal as well as State law and the Federal Government is prohibited from making any use of testimony which the witnesses were compelled to give after grant of immunity by the State laws. Therefore, it was held that they did not commit any civil contempt. 404. In Emesto A. Miranda v. State of Arizona 384 US 436: 16 L Ed 2d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perintendent of Police, being the head of the District Police Administration responsible to maintain law and order is expected to be keen on cracking down the crime and would take all tough steps to put down the crime to create terror in the heart of the criminals. It is not the hierarchy of officers but the source and for removal of suspicion from the mind of the suspect and the objective assessor that built-in procedural safeguards have to be scrupulously adhered to in recording the confession and trace of the taint must be absent. It is, therefore, obnoxious to confer power on police officer to record confession under Section 15(1). If he is entrusted with the solemn power to record a confession, the appearance of objectivity in the discharge of the statutory duty would be seemingly suspect and inspire no public confidence. If the exercise of the power is allowed to be done once, may be conferred with judicial powers in a lesser crisis and be normalised in grave crisis, such an erosion is anathema to rule of law, spirit of judicial review and a clear negation of Article 50 of the Constitution and the constitutional creases. It is, therefore, unfair, unjust and unconscionable, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Magistrates of the second class; and (iv) Executive Magistrates. 409. Under Section 9 of the Code the State Government shall establish a Court of Session for every sessions division. Under sub-section (2) thereof, the Court of Session shall be presided over by a Judge to be appointed by the High Court. Under sub-section (3) the High Court may also appoint Additional or Assistant Sessions Judges to exercise jurisdiction in a Court of Session. The other sub-sections are not material. Hence they are omitted. The High Court or the State Government, as the case may be, may by order under Sections 32 and 33 empower these persons specially by name or in virtue of their offices or classes of officials generally by their official titles to perform the functions of Court of Session. Under the Code, throughout any local area, such persons exercise the powers in local area or any other local area to which they are so appointed, in addition. They are subject to appellate or revisional jurisdiction of the High Court. 410. In Chapter V, Part VI of the Constitution of India, with the caption The High Courts in the State Article 214 provides that there shall be a High Court for each S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court and the Governor makes appointment of the candidates selected and recommended by the High Court as District or Additional District Judges. They are invested with the powers of Sessions Division under the Code. All the judicial officers shall be exclusively under the control of the High Court including their promotion, posts, transfer, grant of leave and disciplinary control, etc. till they attain the age of superannuation prescribed under the relevant rules. By operation of Article 237 the High Court has the control on all the judicial officers. They are the core members and floor level officers of the judicial service of the State exposed to direct public gaze, It is settled law that the High Court has exclusive control over judicial officers and the Governor should normally act according to the recommendation of the High Court. Even in respect of dismissal, removal, reduction in rank etc. of subordinate judicial officers, the Government Advocates etc., it is made in consultation with and advice of the High Court. The constitutional scheme thus guarantees and secures independence of the subordinate judiciary as well. 411. It is the basic postulate under the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conscientious performance of his duties. Therefore, he must be free from external as well as internal pressures. The need for independent and impartial judiciary manned by persons of sterling character, impeccable integrity, undaunting courage and determination, impartiality and independence is the command of the Constitution and call of the people. He would administer justice without fear or favour, affection or ? ill-will. His sanction and succor are nurtured and nourished from the Constitution itself. The ability and integrity of the judge to make a decision free from external interference or influence or external cravings is an essential component and an in built assurance to shape the orderly life of the community. Independent and impartial judiciary thus sustain the faith of the people in the efficacy, effectivity and impartiality of judicial process. Independence of the judiciary has been secured by providing security of tenure and other conditions of service. Judicial independence means total liberty of the presiding judge to try, hear and decide the cases that have come before him according to the set procedure and decide the cases and give binding decision on merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower. Courts have general powers to decide and pronounce a judgment and carry it into effect between two persons and parties who bring a case before it for decision; determination of questions of right in specific cases affecting interests of person or property, as distinguished from ministerial power involving no discretion. Inherent authority not only to hear and determine controversies between adverse parties, but t o make binding orders or judgments. Power to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before court for decision. Power that adjudicates upon and protects the rights and interests of persons or property, and to that end declares, construes and applies the law. 414. Judicial power, therefore, means the judicial power which every authority i.e. courts i.e. High Court and subordinate judiciary, established under Chapters V and VI of Part VI and the Union Judiciary constituted in Chapter IV in Part V, 'the Supreme Court of India' must of necessity have to decide controversies between citizen and the citizen, and the State or the States inter se, whether the rights relate to life, liberty or proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistrative control of the executive, be it the Central or State Government. In other words the concurrence of the Chief Justice of the High Court is necessary only for the initial appointment of a judge of the Designated Court and thereafter the High Court cease to have any administrative and judicial control and supervision of him. Sub-section (7) of Section 9 of the Act postulates its fulcrum without mincing any word that despite the judge or additional judge of a Designated Court having attained the age of superannuation under rules applicable to him in the State judicial service, he shall be entitled to continue as such judge or additional judge by employing unequivocal language shall not affect his continuance as such judge or additional judge . In other words, the legislative intention is clear that though Designated Judge attained superannuation under the relevant rules applicable to him in his normal judicial service as a Sessions or Additional Sessions Judge, he shall remain in service during the pleasure of the Central or the appropriate State Government. What would be its message? Is it consistent with the independence of the judiciary? Would it create confidence in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffects, by way of direction or restriction, the discretion or judgment of the judiciary in specific proceedings. It is, therefore, necessary to consider more closely the nature of the legislation's challenge. It was further held that: The Act made admissible the statements inadmissibly obtained by the police during the detention. It altered the fundamental law of evidence so as to facilitate their conviction and finally it altered the ex post facto punishment to be imposed on them. Still further it was also held that the true nature and purpose of these enactments are revealed by their conjoint impact on the specific proceedings in respect of which they were designed, and they take their color in particular, from the alterations they purported to make as to their ultimate objection, the punishment of those convicted. These alterations constituted a grave and deliberate incursion under the judicial sphere. ... It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant and gives no validity to acts which infringe the Constitution. What is done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not apply, nor there being any reason why the Bankruptcy Courts so established lie beyond reach of Article III. Section 241(a) of the Bankruptcy Act having impermissibly removed most, if not all of the essential attributes of judicial power from Article III District Court and having vested those attributes in a non-Article III adjunct, which grant of jurisdiction cannot be sustained as an exercise of Congress's power to create adjuncts to Article III courts. The Federal Judiciary was designed to stand independent of the executive and the legislature. Periodical appointments are fatal to the independence of the Judiciary. If the power of appointment is committed either to the executive or legislature, there would be danger of improper compliance to the branch which possessed it. A judiciary free from control of the executive and legislature is essential to relieve the judiciary from potential domination by other branches of Government. The inexorable command of Article 111, Section 1 is that judicial power shall be vested in Supreme Court and inferior courts. Bankruptcy Judges whose officers are created under the Act are under the executive control. The Congress's majorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r extra or a second High Court, or a court other than a court subordinate to the High Court. Any such attempt would be unconstitutional and will strike at the independence of the judiciary which has so nobly been enshrined in the Constitution and so carefully nursed over the years. (emphasis supplied) It was further held that: It is beyond any doubt or controversy that the Constitution does not permit the establishment of a criminal court, of the status of a court, presided over by a 'district judge' as defined in Article 235, which is not subordinate to the High Court........ (emphasis supplied) Dealing with an argument based on Section 6 of the Code that it was a court under the Code, this Court held that: [A]11 that the section states is that the five classes of criminal courts stated in it shall be in addition to the High Courts and courts that may be constituted under any other law, and it cannot be said with any justification that it provides for the constitution of courts parallel to or on the same footing as the High Courts, or of criminal courts which are not subordinate t o the High Court. ... Section 6 of the Code does not therefore justify the cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uitably amend the Act, keeping in view Article 39-A which itself is a fundamental right to the indigent. The remedy of appeal to the High Court would be easily accessible at the State level, lest the poor may be constrained to forego the remedy of appeal. The right to approach this Court under Article 136 has constitutionally been preserved to everyone. 421. In Managing Director, ECIL, Hyderabad v. B. Karunakar (1 993) 4 SCC 727: 1993 SCC (L S) 1184: (1993) 25 ATC 704: JT (1 993) 6 SC 1 in a separate but concurrent judgment, I have considered elaborately the need to give prospective operation of a decision of this Court, be it, constitutional, civil or criminal. In paragraph 73 (SCC p. 783) it was held that the cut-off date to give effect to the law laid down in the judgment is the date of the judgment. Though I had held that the parties before the Court in that judgment were entitled to the relief, majority held otherwise to which I am bound. In Victor Linkletter v. Victor G. Walker 14 L Ed 2d 601: 381 US 618 (1965) it was held that though the evidence was collected in illegal search and seizure violating the Fourth Amendment, and the conviction based thereon is not valid, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, public policy requires that the doctrine of de facto be engrafted on necessity to protect the interest of the public and the individuals involved in the official acts of persons exercising the duty of an office without actually being one in strict point of law. Therefore, though, de jure they are not by title validly appointed, but by color of title the exercise and functions as Judge of the Designated Court, trials conducted, judgments rendered, orders passed, punishments imposed and convictions made are legal and valid. The de facto doctrine is not a stranger to the Constitution or to the Parliament and the legislature of the States. Article 233-A recognises this doctrine brought by Constitution Twentieth Amendment Act, 1966. Therefore, the trials conducted, judgments pronounced and the orders or punishment imposed under the Act remained valid. 423. Thus it must be held that the confessions recorded by any police officer below the rank of Superintendent of Police under Section 15(1) and the appointment of Sessions and Additional Sessions Judges to the Designated Court under Section 9(7) are unconstitutional. Yet the confessions so recorded by exercising the power under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an offence under the Act or other offenses committed during the course of the same transaction exclusively triable by the Designated Court. Nothing is more conspicuous than the failure of law to evolve a consistent jurisdictional doctrine or even elementary principles, if it is subject to conflicting or inconceivable or inconsistent result which lead to uncertainty, incongruity and disbelief in the efficacy of law. The jurisdiction and power of the High Court under Article 226 of the Constitution is undoubtedly constituent power and the High Court has untrammeled powers and jurisdiction to issue any writ or order or direction to any person or authority within its territorial jurisdiction for enforcement of any of the fundamental rights or for any other purpose. The legislature has no power to divest the court of the constituent power engrafted under Article 226. A superior court is deemed to have general jurisdiction and the law presumes that the court has acted within its jurisdiction. This presumption is denied to the inferior courts. The judgment of a superior court unreservedly is conclusive as to all relevant matters thereby decided, while the judgment of the inferior court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany carrying on business in the County Palatine of Lancaster. When the debenture holder was indicted of an offence of cheating, Palatine Court and the Chancery Division simultaneously had taken cognizance of the offence on a motion, the High Court issued an injunction restraining the plaintiff in the Palatine action while the proceedings in Palatine Court had jurisdiction to grant the same injunction. The question was whether the Palatine Court was justified in taking cognizance and issuance of the injunction prayed for. Parker, J. as he then was, exercising the jurisdiction of the Chancery Division issued the injunction restraining the plaintiff in the Palatine Court from proceeding with the action. On appeal, Fletcher Moulton, L.J., of Court of Appeal, as he then was, held that a man has a right to bring an action in a court of inferior jurisdiction when the circumstances of the case entitle him to do so and if he is within the right, he is neither more nor less liable to be restrained from proceeding with an action in a court of coordinate jurisdiction. The question of jurisdiction to grant the injunction has nothing to do with the status of the court. It has to do with the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose relatively rare cases where the sole issue is one of law that a case can be made for the High Court to assume jurisdiction. This is because, there being no issue of fact to be determined., trial by jury is otiose; the issue of guilt will be determined by the judge of the Crown Court on submission of law, leading inevitably to a formal direction to the jury to acquit or convict, as the case may be. The criminal procedure, is no better designed, indeed it is often less well adapted than the civil procedure to determine pure questions of law. Appeals in either case lie to the same court. Where issues of law can best be determined, therefore, is essentially a question of convenience in the true sense of that word. Accordingly it was held that when the proceedings were initiated in the High Court, though the Crown Court was the court of coordinate jurisdiction, the matter being pure question of law untrammeled by questions of facts, the summons issued by the High Court were held to be efficacious and upheld. 431. In Santoshi Tel Utpadak Kendra v. Dy. C.S. T (1981) 3 SCC 466: 1981 SCC (Tax) 253 the Commissioner and the tribunal under Bombay Sales Tax Act had concurrent jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in the exercise of its power under Article 226 should pass any order, interim or otherwise which has the tendency or effect of postponing an election, which is reasonably imminent and in relation to which its writ jurisdiction is invoked. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything or direct anything to be done, which will postpone that process indefinitely by creating a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. In State of Maharashtra v. Abdul Haji Mohammad (1994) 2 SCC 664 the Bombay High Court quashed the charge-sheet filed under TADA exercising the power of Article 226 and directed to release the respondent on bail. This Court held that where the facts ex facie do constitute an offence or contentious question arises, the High Court does not have power to entertain the proceedings. Otherwise it has jurisdiction in ordinary cases. This Court allowed the appeal and set aside the order of the High Court holding that the allegations do not fall outside the scope of the Act. 434. In Pete Darr v. C.P. Burford 339 US 200: 94 L Ed 761 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the power even in exceptional cases or circumstances is, therefore, incompatible with or inconsistent with comity. Therefore, the only check up on a court's exercise of power is ones own sense of self-restraint and due respect to comity. Judicial pragmatism, therefore, poignantly point, per force to observe constitutional propriety and comity imposing self- discipline to decline to entertain proceedings under Article 226 over the matters covered under Section 19 or the matters in respect of which remedy under Section 19 is available or taken cognizance; issue of process or prima facie case in the complaint or charge-sheet etc., in other words all matters covered under the Act. Thus the High Court's jurisdiction got eclipsed and denuded of the powers over the matters covered under the Act. 436. I respectfully express my regrets for not falling in line with my Brethren that the High Court may in exceptional cases exercise such power for the reasons aforesaid. R.M. SAHAI, J.- To my utter regret, but with profound humility to Brother Pandian, J., for whose erudition and learning of criminal law I have the greatest regard and above all the respect for him as an elder bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edom fighting or rebellion disapproved by the authorities . Terrorism politically is coercive intimidation . Systematic use of murder and destruction to instill the feeling of fear and terror in one or all, individual or group, institutions or government is its acknowledged method. The most reprehensible part of it is that its victims are usually innocent persons having nothing to do either with politics or government. Whatever their ideology or coloring, terrorists are desperate people bitterly opposed to the prevailing regime. They are fond of using romantic euphemism for their murderous crime. They claim to be revolutionary heroes yet they commit cowardly acts and lack the heroic qualities of humanity and magnanimity. They profess to be revolutionaries yet they attack only by stealth, murder and maim the innocent. They claim to bring liberation whereas in reality they seek power for themselves. [Terrorism and the Liberal State by Paul Wilkinson]. 440. Terrorism is a global phenomenon. Hijacking, diplomatic killings, bombing, kidnapping, innocent murders, destruction have become order of the day. It may be politically motivated or revolutionary in outlook or sponsored by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate to overcome such inhuman menace invading State's monopoly to counter it cannot be seriously doubted. Killing of democracy by gun and bomb should not be permitted by a State but in doing so the State has to be vigilant not to use methods which may be counter-productive. Care must be taken to distinguish between the terrorist and the innocent. If the State adopts indiscriminate measures of repression resulting in obliterating the distinction between the offender and the innocent and its measures are repressive to such an extent where it might not be easy to decipher one from the other, it would be totally incompatible with liberal values of humanity, equality, liberty and injustice. A country where terrorism or militancy is becoming religion and creed of the frustrated, weak and the misguided the State has a constitutional duty to uphold the authority with firmness and determination by directing its repressive measures towards quelling terrorism without sliding into general repression or exploiting the crisis for its own political advantage or to destroy legitimate opposition. Measures adopted by the State should be to create confidence and faith in the Government and democr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A of List I and it has been accepted by Brother Pandian, J., but I would confine it to the alternative submission made by the learned counsel that the legislation could be upheld under Entry 1 of List III which is extracted below : Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offenses against law with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. 444. In Harakchand Ratanchand Banthia v. Union of India(1969) 2 SCC 166: AIR 1970 SC 1453 it was observed: (SCC p. 174, para 8: AIR at p. 145 8) The power to legislate is given to the appropriate legislatures by Article 246 of the Constitution. The entries in the three Lists are only legislative heads or fields of legislation; they demarcate the area over which the appropriate legislatures can operate. It is well established that the widest amplitude should be given to the language of the entries. But some of the entries in the different lists or in the same list may overlap or may appear to be in direct conflict with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime and provide for its punishment. Use of the expression, including all matters included in the Indian Penal Code at the commencement of the Constitution is unequivocal indication of comprehensive nature of this entry. It further empowers the legislature to make laws not only in respect of matters covered by the Indian Penal Code but any other matter which could reasonably and justifiably be considered to be criminal in nature. Terrorist or disruptive activity is criminal in content, reach and effect. The Central and State Legislature both, therefore, are empowered to legislate in respect of such an activity in exercise of the power conferred under Entry I of the Concurrent List. But this wide power is otherwise controlled and restricted by the latter part of the entry. It carves out an exception by precluding either of the legislatures from exercising the power if it is in respect of offence against laws with respect to any of the matters specified in List I or II . The controversy, narrows down to whether the offenses under the TADA are such in respect of which the State Legislature could make a law. In other words if the legislation relating to TADA can fall in Entry 1 of Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic order is well understood and fully comprehended as a problem associated with law and order. Terrorism is a new crime far serious in nature, more graver in impact, and highly dangerous in consequence. One pertains to law and order problem whereas the other may be political in nature coupled with unjustifiable use of force threatening security and integrity of the State. The submission thus advanced on legislative competence, more as a matter of form than with any feeling of conviction and belief in its merit, does not appear to be sound. 447. TADA having been enacted under Entry 1 of List III of the Seventh Schedule, it did not suffer from lack of legislative competence, yet the question is if any of the provisions impinges upon the fundamental right guaranteed under the Constitution and is, therefore, ultra vires. Before embarking upon this exercise it may be worthwhile examining the depth of Article 21 of the Constitution as any law of punitive or preventive detention has to be tested on the touchstone of the constitutional assurance to every person that he shall not be deprived of his liberty except in accordance with procedure established by law. It is declaration of deep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. 448. Liberty is the most cherished possession of a man. Truncate liberty in Article 21 and several other freedoms fade out automatically . Edmond Burke called it 'regulated freedom'. Liberty is the right of doing an act which the law permits. This article instead of conferring the right, purposely uses negative expression. Obviously because the Constitution has recognised the existence of the right in every man. It was not to be guaranteed or created. One inherits it by birth. This absolutism has not been curtailed or eroded. Restriction has been placed on exercise of power by the State by using the negative. It is State which is restrained from interfering with freedom of life and liberty except in accordance with the procedure established by law. Use of the word 'deprive' is of great significance. According to the dictionary it means, debar from enjoyment; prevent (child etc.) from having normal home life . Since deprivation of right of any person by the State is prohibited except in accordance with procedure established by law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... analysed the scope of Article 21 and traced its history, judicially and legislatively, it is proposed to take up few provisions of 1987 Act as I have nothing to add to what has been said by Brother Pandian, J., on 1984 Act and 1985 Act with which I respectfully agree. Taking up 1987 Act 1 may mention at the very outset that fully agree with the reasoning and conclusions arrived at by Brother Pandian, J., in respect of most of the sections. For instance, I agree with him that sub-clause (i) of the definition of 'abet' should be amended in order to avoid the ambiguity and make it immune from arbitrariness. As regards Sections 3 and 4 they are not liable to be struck down for vagueness. Their scope has been elaborately discussed by Brother Pandian, J. But the one section with which I could not reconcile, even though it was raised in written submissions, only, is Section 5 which is extracted below : 5. Possession of certain unauthorised arms, etc. in specified areas.- Where any person is in possession of any arms and ammunition specified in Columns 2 and 3 of Category 1 or Category III(a) of Schedule 1 to the Arms Rules, 1962, or bombs, dynamite or other explosive substance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision which may serve the objective of the legislation and from a wider point of view one may say that possession of such arms, the use of which may lead to terrorist activity, should be taken as one of the offenses as a preventive or deterrent provision. Yet there must be some inter-relation between the two, howsoever, remote it may be. The harshness of the provisions is apparent as all those provisions of the Act for prosecuting a person including forfeiture of property, denial of bail etc., are applicable to a person accused of possessing any arms and ammunition as one who is charged for an offence under Sections 3 and 4 of the Act. It is no doubt true that no one has justification to have such arms and ammunitions as are mentioned in Section 5, but unjustifiable possession does not make a person a terrorist or disruptionist. Even under Ireland Emergency Provisions Act, 1978 on which great reliance was placed by learned Additional Solicitor General there is no such harsh provision like Section 5. Since both the substantive and procedural law apply to a terrorist and disruptionist or a terrorist act or a disruptive act, it is necessary, in my opinion, that this section if it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;ble Minister might appear plausible. There may be no difficulty in even sharing his views that at some point of time the distrust with which the police is looked upon has to be given up. But has the time come for that? Was the political, administrative and social climate of the country mature for it? What should not be forgotten is that it is not the efficiency or honesty of the police force at higher level which was relevant for taking such a momentous decision. What was required to be considered was if the approach of the police force has undergone a change. It would not be out of place to extract a paragraph from Fifth National Police Commission Report: 41.30 We find that policemen have a tendency to become cynical. We also find that frequently such cynicism is developed, within very few years of service. Policemen very rapidly pick up the knowledge that what the law requires is one thing but what has actually to be done in practice is another. Once this dichotomy takes root in their minds, all training, all exhortations are a waste. Thus, the law is that third degree is not permitted, but in practice that is the only way. Very often people themselves expect the police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce more for the executive than for the law and society. One of the reasons for it may be, as observed by the National Police Commission, the political set-up of the country which has used it more to serve its purpose than to serve the society. 454. The police constable in England and America is duty-bound to inform the accused not only that whatever he was going to state could be treated as confession in a court of law but he was entitled-to have his lawyer and any relative he desired. Section 62 of Criminal Law Act of 1973 of England made it mandatory for the police officer arresting a person to send information to his relative about arrest and place of detention. Circular No. 74 of 1978 issued in England permitted the accused to have assistance of lawyer. In America same safeguards are provided by judicial decisions. In Section 24 of the Evidence Act a confession obtained by threat or inducement or by force is rendered inadmissible. By Section 25 a confession made to a police officer is deemed to be inadmissible ipso facto. But if the same confession is made in presence of a Magistrate then by Section 26 it is not treated as suspect. The obvious reason for these provisions is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 14 of the Constitution any confession to police officer was inadmissible. It has been the established procedure for more than a century and an essential part of criminal jurisprudence. It was, therefore, necessary to bring about change in outlook before making a provision the merits of which are attempted to be justified on law existing in other countries. 455. Since for justifying various provisions of the Act reliance was placed on Ireland Emergency Provisions Act, 1978 and it was attempted to be argued that the provisions in the TADA were fair and just it appears necessary to say few words. In 1971 in England an internment operation of provisions was made which led to many arrests which were challenged in High Court. And the High Court held that those exercising emergency powers were nonetheless required to fulfill ordinary common law requirement of informing the person arrested of the reason for his arrest. This led to constitution of Diplock Committee which resulted in Northern Ireland (Emergency Provisions) Act of 1973. This empowered the army to arrest any suspected terrorist for a period of four hours for establishing identity after which it was required to hand o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The mere fact that the Legislature was competent to make the law, as the offence under TADA is one which did not fall in any State entry, did not mean that the Legislature was empowered to curtail or erode a person of his fundamental rights. Making a provision which has the effect of forcing a person to admit his guilt amounts to denial of the liberty. The class of offenses dealt by TADA may be different than other offenses but the offender under TADA is as much entitled to protection of Articles 20 and 21 as any other. The difference in nature of offence or the legislative competence to enact a law did not affect the fundamental rights guaranteed by Chapter III. If the construction as suggested by the learned Additional Solicitor General is accepted it shall result in taking the law back once again to the days of Gopalan A.K. Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCR 88: 51 Cri LJ 1383, Section 15 cannot be held to be valid merely because it is as a result of law made by a body which has been found entitled to make the law. The law must still be fair and just as held by this Court. A law which entitles a police officer to record confession and makes it admissible is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his choice the expenses for which should be home by the State. 458. Coming to sub-section (8) of Section 20 one of the issues debated was if a person accused of an offence under the TADA was entitled to invoke extraordinary jurisdiction of the High Court either for quashing of the proceedings as on facts no offence was made out and the proceedings were invoked as an abuse of process of court or for extraneous reason and whether the order rejecting the bail by the Designated Court could be subjected to judicial review under Article 226. 459. Law on the subject is fairly settled. In State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426 a Bench of this Court of which one of us (Pandian, J.) was a member, after detailed examination of the judicial decisions held, where the allegations made in the first information report or the complaint, even if they were taken at their face value and accepted in their entirety did not prima facie constitute any offence or make out a case against the accused , or where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person could ever reach a just conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down the provision. Since the High Court under the Constitution is a forum for enforcement of fundamental right of a citizen it cannot be denied the power to entertain a petition by a citizen claiming that the State machinery was abusing its power and was acting in violation of the constitutional guarantee. Rather it has a constitutional duty and responsibility to ensure that the State machinery was acting fairly and not on extraneous considerations. In State of Maharashtra v. Abdul Hamid Haji Mohammed (1994) 2 SCC 664 this Court after examining the principle laid down in State of Haryana v. Bhajan Lal (1964) 1 SCR 332: AIR 1963 SC 1295: (1963) 2 Cri LJ 329 and Paras Ram v. State of Haryana (1992) 4 SCC 662: 1993 SCC (Cri) 13 held that the High Court has jurisdiction to entertain a petition under Article 226 in extreme cases. What are such extreme cases cannot be put in a strait- jacket. But the few on which there can be hardly any dispute are if the High Court is of opinion that the proceedings under TADA were an abuse of process of court or taken for extraneous considerations or there was no material on record that a case under TADA was made out. If it be so then there is no reas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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