TMI Blog1994 (7) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... o the prosecution for further investigation under clause (bb) of Section 20(4) and incidentally whether the conditions contained in Section 20(8) TADA control the grant of bail under Section 20(4) of the Act also? We shall take up for consideration these questions in seriatim. 2. When can the provisions of Section 3(1) of TADA be attracted? Learned counsel for the appellants submitted that even though the constitutional validity of Section 3 of TADA has been upheld by a Constitution Bench of this Court in Kartar Singh v. State of Punjabi, nonetheless keeping in view the stringent nature of the provisions of TADA the offence constituted by Section 3 of TADA must be the one which qualifies stricto sensu as a terrorist act and unless the crime alleged against an accused can be classified as a terrorist act in letter and in spirit, Section 3(1) of TADA has no application and an accused shall have to be tried under the ordinary penal law and in such a fact situation, it is a statutory obligation cast on the Designated Court to transfer the case from that court for its trial by the regular courts under the ordinary criminal law in view of the provisions of Section 18 of TADA. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 3 of TADA and under the ordinary penal law overlap, the court should not lay down as a general proposition that Section 3 of TADA is inapplicable in all such situations where the offences overlap. 4. The expression terrorist act has been defined in Section 2(1)(h) of TADA. It provides that the expression terrorist act has the meaning assigned to it in subsection (1) of Section 3 Section 3(1) provides as under: 3. Punishment for terrorist acts.- (1) Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services ess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st a civilised society. Terrorism has not been defined under TADA nor is it possible to give a precise definition of terrorism or lay down what constitutes terrorism . It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or terrorise people and the society and not only those directly assaulted, with a view to disturb even tempo, peace and tranquillity of the society and create a sense of fear and insecurity. A terrorist activity does not merely arise by causing disturbance of law and order or of public order. The fall out of the intended activity must be such that it travels beyond the capacity of the ordinary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w are evidently for the reasons that the prevalent ordinary procedural law was found to be inadequate and not sufficiently effective to deal with the offenders indulging in terrorist and disruptive activities, secondly that the incensed offences are arising out of the activities of the terrorists and disruptionists which disrupt or are intended to disrupt even the sovereignty and territorial integrity of India or which may bring about or support any claim for the cession of any part of India or the secession of any part of India from the Union, and which create terror and a sense of insecurity in the minds of the people. Further the Legislature being aware of the aggravated nature of the offences have brought this drastic change in the procedure under this law so that the object of the legislation may not be defeated and nullified. (emphasis supplied) 9. In Usmanbhai Dawoodbhai Memon v. State of Gujarat (1988) 2 SCC 271: 1988 SCC (Cri) 318, this Court observed : (SCC p. 285, para 17) The legislature by enacting the law has treated terrorism as a special criminal problem and created a special court called a Designated Court to deal with the special problem and provided for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere statement to the effect that the show of such violence would create terror or fear in the minds of the people and none would dare to oppose them cannot constitute an offence under Section 3(1) of the Act. That may indeed be the fall out of the violent act but that cannot be said to be the intention of the perpetrators of the crime. It is clear from the statement extracted earlier that the intention of the accused persons was to eliminate the rivals and gain supremacy in the underworld so that they may be known as the bullies of the locality and would be dreaded as such. But it cannot be said that their intention was to strike terror in the people or a section of the people and thereby commit a terrorist act. It is clear that there was rivalry between the party of the accused on the one hand and Raju and Keshav on the other. The former desired to gain supremacy which necessitated the elimination of the latter. With that in view they launched an attack on Raju and Keshav, killed the former and injured the latter. Their intention was clearly to eliminate them and not to strike terror in the people or a section of the people. It would have been a different matter if to strike terr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that result being felt there, the provisions of Section 3(1) would certainly be attracted. Likewise, if it is only as a consequence of the criminal act that fear, terror or/and panic is caused but the intention of committing the particular crime cannot be said to be the one strictly envisaged by Section 3(1), it would be impermissible to try or convict and punish an accused under TADA. The commission of the crime with the intention to achieve the result as envisaged by the section and not merely where the consequence of the crime committed by the accused create that result, would attract the provisions of Section 3(1) of TADA. Thus, if for example a person goes on a shooting spree and kills a number of persons, it is bound to create terror and panic in the locality but if it was not committed with the requisite intention as contemplated by the section, the offence would not attract Section 3(1) of TADA. On the other hand, if a crime was committed with the intention to cause terror or panic or to alienate a section of the people or to disturb the harmony etc. it would be punishable under TADA, even if no one is killed and there has been only some person who has been injured or so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minister a word of caution to the Designated Courts regarding invoking the provisions of TADA merely because the investigating officer at some stage of the investigation chooses to add an offence under same (sic some) provisions of TADA against an accused person, more often than not while opposing grant of bail, anticipatory or otherwise. The Designated Courts should always consider carefully the material available on the record and apply their mind to see whether the provisions of TADA are even prima facie attracted. 14. The Act provides for the constitution of one or more Designated Courts either by the Central Government or the State Government by notification in the Official Gazette to try specified cases or class or group of cases under the Act. The Act makes every offence punishable under the Act or any rule made thereunder to be a cognizable offence within the meaning of Section 2(c) of the CrPC. The Act vests jurisdiction in the Designated Court to try all such offences under the Act by giving precedence over the trial of any other case against an accused in any other court (not being a Designated Court) notwithstanding anything contained in the Code or any other law for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a prima facie case on the basis of the material on the record before it proceeds to frame a charge-sheet against an accused for offences covered by TADA. Even after an accused has been charge-sheeted for an offence under TADA and the prosecution leads evidence in the case it is an obligation of the Designated Court to take extra care to examine the evidence with a view to find out whether the provisions of the Act apply or not. The Designated Court is, therefore, expected to carefully examine the evidence and after analysing the same come to a firm conclusion that the evidence led by the prosecution has established that the case of the accused falls strictly within the four corners of the Act before recording a conviction against an accused under TADA. 15. Thus, the true ambit and scope of Section 3(1) is that no conviction under Section 3(1) of TADA can be recorded unless the evidence led by the prosecution establishes that the offence was committed with the intention as envisaged by Section 3(1) by means of the weapons etc. as enumerated in the section and was committed with the motive as postulated by the said section. Even at the cost of repetition, we may say that where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is not such as is triable by the Designated Court inasmuch as the offence does not fall within the true ambit and parameters of the provisions of TADA, it is obliged to transfer the case to the court of competent jurisdiction for its trial and on such transfer, the court to which the case is so transferred acquires the jurisdiction to proceed with the trial of the offence, as if the transferee court had itself taken cognisance of the offence. 18. Thus, having dealt with the ambit and scope of Section 3(1) of TADA and considered the situations where its provisions may be attracted ill the established facts and circumstances of the case, we shall now take up for consideration questions 2 and 3 mentioned in the earlier part of this judgment. Both these questions essentially revolve around the grant of bail to an accused under TADA. 19. Section 20(4) of TADA makes Section 167 of CrPC applicable in relation to case involving an offence punishable under TADA, subject to the modifications specified therein. Clause (a) thereof, provides that reference in sub-section (1) of Section 167 to Judicial Magistrates shall be construed as reference to Judicial Magistrate or Executive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellfounded, the police is obliged to forward the accused along with the case diary to the nearest Magistrate for further remand of the accused person. The Magistrate, on the production of the accused and the case diary, must scrutinise the same carefully and consider whether the arrest was legal and proper and whether the formalities required by law have been complied with and then to grant further remand, if the Magistrate is so satisfied, The law enjoins upon the investigating agency to carry out the investigation, in a case where a person has been arrested and detained, with utmost urgency and complete the investigation with great promptitude in the prescribed period. Sub-section (2) of Section 167 of the Code lays down that the Magistrate to whom the accused is forwarded may authorise his detention in such custody, as he may think fit, for a term specified in that section. The proviso to subsection (2) fixes the outer limit within which the investigation must be completed and in case the same is not completed within the said prescribed period, the accused would acquire a right to seek to be released on bail and if he is prepared to and does furnish bail, the Magistrate shall re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice fails to complete the investigation and put up a challan against him in accordance with law under Section 173 CrPC. An obligation, in such a case, is cast upon the court, when after the expiry of the maximum period during which an accused could be kept in custody, to decline the police request for further remand except in cases governed by clause (bb) of Section 20(4). There is yet another obligation also which is cast on tile court and that is to inform the accused of his right of being released on bail and enable him to make an application in that behalf. (Hussainara Khatoon case6). This legal position has been very ably stated in Aslam Babalal Desai v. State of Maharashtra (1992) 4 SCC 272: 1992 SCC (Cri) 870: AIR 1993 SC where speaking for the majority, Ahmadi, J. referred with approval to the law laid down in Rajnikant Jivanlal Patel v. Intelligence officer, Narcotic Control Bureau, New Delhi wherein it was held that (SCC p. 288, para 9) The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not court s discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a report is submitted by the public prosecutor to the Designated Court for grant of extension under clause (bb), its notice should be issued to the accused before granting such an extension so that an accused may have an opportunity to oppose the extension on all legitimate and legal grounds available to him. It is true that neither clause (b) nor clause (bb) of sub-section (4) of Section 20 TADA specifically provide for the issuance of such a notice but in our opinion the issuance of such a notice must be read into these provisions both in the interest of the accused and the prosecution as well as for doing complete justice between the parties. This is a requirement of the principles of natural justice and the issuance of notice to the accused or the public prosecutor, as the case may be, would accord with fair play in action, which the courts have always encouraged and even insisted upon. It would also strike a just balance between the interest of the liberty of an accused on the one hand and the society at large through the prosecuting agency on the other hand. There is no prohibition to the issuance of such a notice to the accused or the public prosecutor in the scheme of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from the grounds on which bail may be granted under Section 20(8) of the Act. It would be advantageous at this stage to notice the provisions of Section 20(8) and (9) of the Act. (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. As would be seen from the plain phraseology of sub-section (8) of Section 20, it commences with a non obstante clause and in its operation imposes a ban on release of a person accused of an offence punishable under TADA or any rule made thereunder on bail unless the twin condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the two conditions mentioned therein is not satisfied, the ban operates and the accused person cannot be released on ball 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. Thus, the ambit and scope of Section 20(8) of TADA is no longer res integra and from the above discussion It follows that both the provisions i.e. Section 20(4) and 20(8) of TADA operate in different situations and are controlled and guided by different considerations. 23. We may at this stage, also on a plain reading of clause (bb) of sub-section (4) of Section 20, point out that the Legislature has provided for seeking extension of time for completion of investigation on a report of the public prosecutor. The Legislature did not purposely leave it to an investigating officer to make an application for seeking extension of time from the court. This provision is In tune with the legislative intent to have the investigations completed expeditiously and not to allow an accused to be kept in continued detention during unnecessary prolonged investigation at the whims of the police. The Legislature expects that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islative intent not to keep an accused in custody unreasonably and to grant extension only on the report of the public prosecutor. The report of the public prosecutor, therefore, is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements as contained in clause (bb). The request of an investigating officer for extension of time is no substitute for the report of the public prosecutor. Where either no report as is envisaged by clause (bb) is filed or the report filed by the public prosecutor is not accepted by the Designated Court, since the grant of extension of time under clause (bb) is neither a formality nor automatic, the necessary corollary would be that an accused would be entitled to seek bail and the court shall release hi on bail if he furnishes bail as required by the Designated Court. It is not merely the question of form in which the request for extension under clause (bb) is made but one of substance. The contents of the report to be submitted by the public prosecutor, after proper application of his mind, are designed to assist the Designa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in further custody as envisaged by clause (bb) (supra). Even the mere reproduction of the application or request of the investigating officer by the public prosecutor in his report, without demonstration of the application of his mind and recording his own satisfaction, would not render his report as the one envisaged by clause (bb) and it would not be a proper report to seek extension of time. In the absence of an appropriate report the Designated Court would have no jurisdiction to deny to an accused his Indefeasible right to be released on bail on account of the default of the prosecution to file the challan within the prescribed time if an accused seeks and is prepared to furnish the bail bonds as directed by the court. Moreover, no extension can be granted to keep an accused in custody beyond the prescribed period except to enable the investigation to be completed and as already stated before any extension is granted under clause (bb), the accused must be put on notice and permitted to have his say so as to be able to object to the grant of extension. 43 of 1993 would apply to the pending cases i.e. the cases which were pending investigation on the date when the amendment ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive law but no such right exists in procedural law. (iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication. 27. In fairness to the learned Additional Solicitor General Mr Tulsi, it may be stated that he did not controvert the legal position (both in his oral submissions and written arguments) that Amendment Act 43 of 1993 regulating the period of compulsory detention and the procedure for grant of bail, being procedural in nature, would operate retrospectively. We need not, therefore, detain ourselves to further examine the question of retrospective operation of the Amendment Act. On the basis of the submissions made by learned counsel for the parties, we uphold the finding of the Designated Court, for the reasons recorded by it and those noticed by us above that the Amendment of 1993 would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court provided it is satisfied from the report of the public prosecutor that there are sufficient grounds for grant of such extension. In case clause (b) only and not clause (bb) is held to be applicable to pending cases as was suggested by Mr Khanwilkar, it would render clause (bb) almost otiose insofar as pending cases are concerned and defeat the legislative intent and further put the prosecution to an unfair disadvantage. The Amendment Act was not enacted with the object of giving benefit to an accused and subjecting the prosecuting agency to an unfair disadvantage and leaving it almost with no remedy for seeking further custody of an accused. We are, thus, of the opinion that Amendment Act 43 insofar as it modifies the period prescribed in clause (b) and introduces clause (bb) to sub-section (4) of Section 20 would apply retrospectively and apply to pending cases as well. We are unable to persuade ourselves to agree with Mr Khanwilkar that clause (b) only and not clause (bb) of sub-section (4) of Section 20 should be held to have retrospective operation. The acceptance of such an argument would result in the creating of an anomalous situation and defeat the very object with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fically contained in clause (bb) which must be strictly construed. 31. Having answered the questions posed by us in the opening part of the judgment, we shall now take up individual cases. Criminal Appeal Nos. 732-35 of 1993 32. These appeals are directed against the common judgment and order of the Designated Court dated 31-7-1993 and though have been preferred by S/Shri Hitendra Vishnu Thakur, Raja Maruti Jadhav, Dilip Shankar Waghcoude and Dhyaneshwar Bhaskar Patil, the same have been pressed and argued on behalf of Hitendra Vishnu Thakur only by Mr N.T. Vanamalai and Mr Swaraj Kaushal, learned Senior Advocates. A brief reference to the facts of the case at this stage is desirable. 33. On 9-10-1989 one Suresh Narsinh Dubey, a Real Estate Developer, was shot dead at about 10.30 a.m. at Nalasopara Railway Station in District Thane in the presence of his brother-in-law A.S. Tripathi who is the eyewitness. The brother of the deceased, Shri Shyam Sunder Dubey, on receipt of the information went to Palghar Police Station and a first information report was lodged resulting in the registration of a case CR No. 90 of 1989. During the investigation, Patrick Frances Truskar and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 23-10-1992 by the High Court with the observation that the Designated Court may go into the question of the applicability of the provisions of TADA independently at the appropriate stage. Not satisfied with the order of the High Court of Bombay dated 23-10-1992 petitioner 1 and others filed Special Leave Petition (Crl.) No. 2736 of 1992 against the said order of the Bombay High Court. On 17-11-1992 the Special Leave Petition (Crl.) No. 2736 of 1992 was dismissed by this Court. It was, thereafter, that on 5-12-1992 petitioner 1 Hitendra Vishnu Thakur along with one other coaccused surrendered before the Director General of Police, Maharashtra. On 4-1-1993 he was remanded to judicial custody. An application, being TMA No. 62 of 1992, for grant of bail under Section 20(8) of TADA was dismissed by the Designated Court on 17-7-1993. Another application, TMA No. 76 of 1992, filed by the petitioner on 29-9-1992 urging that the provisions of TADA were not attracted and that the case be not tried by the Designated Court was also dismissed on 2-9-1993 adopting the reasoning given in the order dated 17-7-1993 in TMA No. 62 of 1992. While the matters rested thus, Parliament enacted Amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for extension which was treated as a report of the Public Prosecutor by the Designated Court and on which extension of time for completion of investigation and filing of charge-sheet was granted has been filed by the appellant as an Annexure P-5 which is available at page 110 of the paper-book and reads thus : Out Ward No. 90/89-P- 1 993 Sub-Divisional Police Officer, Western Railway, Church-ate, Bombay. Date June 29, 1993 To, Hon ble Designated Judge, Designated Court, Pune. Sub : Regarding progress of investigation and request for extension of period to file the charge-sheet under CR No. 90 of 1989 under Sections 302, 338, 114, 120(b), 147, 148, 149 of IPC and under Sections 3/25(1)(c) of Indian Arms Act and under Section 3 of TADA registered at Palghar Police Railway Station. Respected Sir, With regard to the above, I have to state that with permission of District and Sessions Judge of Thane the investigation of the above case is continued from 23-9-1992. In the present case 20 accused all named out of these 12 accused are arrested at several places from 23-9-1992 and all are in judicial custody. We have collected sufficient evidence to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecutor had filed his objections to the bail application filed under Section 20(4) of TADA read with Section 167(2) of the Code. The Designated Court treated the application of the investigating officer as a report from the Public Prosecutor as is obvious from the following observations of the Designated Court : It is pertinent to note that in these applications the Investigating officer had forwarded the report indicating the progress of the investigation on 29-6-1993 and in the said progress report he prayed for extension of two months time for submitting the chargesheet on the ground that the prosecution wants to seek sanction of the Inspector General of Police. It may be noted that as per the Amendment Act, 1993, Section 20-A has been added and as per this provision, the previous sanction of the Inspector General of Police would be necessary. Similarly, it is mentioned in the said report that in this matter four police officers have also been involved and prior sanction of the Government for prosecuting the government servants as per the provisions of Section 197 CrPC (is required). Thus, the investigating officer wants time for making compliance of law. Taking into consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted as its post office . The Designated Court was deprived of the opportunity of scrutinising the report of the Public Prosecutor before granting extension. We need not, therefore, even comment upon the reasons given by the investigating officer in the application to test their correctness or otherwise because we are firmly of the view that the said letter/application of the investigating officer cannot be construed or treated as a substitute for the report of the Public Prosecutor as contemplated by clause (bb) of Section 20(4) of TADA. Faced with this situation, learned counsel for the respondents submitted that the objections filed by the Public Prosecutor to the bail application read with the application of the investigating officer may be held to be substantial compliance with the requirements of clause (bb). We cannot agree. 39. The application filed by the appellant Hitendra Vishnu Thakur for his release on bail under Section 20(4) of the Act reads as follows : 1. That the accused above named was arrested on 5-12-1992 in the above referred Crime Register No. (90 of 1993). The accused is now in Magistrate s custody. The charge-sheet against accused has not been file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts and circumstances and the material on record, there are reasonable grounds for believing that the applicantaccused is guilty of the offence under the TADA Act. 10. (e) There is evidence to show that the applicant has also indulged in land grabbing and witnesses have stated during the investigation about the nefarious activities of the applicant and his gangsters pointing out that the applicant was working for the criminal conspiracy hatched at the Thakur s criminal empire. 10. (k) The broad daylight murder of the builder Suresh Dubey on a railway platform was a part of criminal conspiracy by the applicant s gang to spread terror among the people and indicate that those who oppose, they will have to pay the penalty in one form or the other, even face total elimination in the process. In short the intention will be to strike terror and the killing will be to achieve that object. 11. The prosecution submits considering the facts and circumstances and the material on record, under these circumstances it cannot be said that the applicant will not abscond, if released on bail. On the other hand, his close relatives Bhai Thakur, Deepak Thakur, Bhaskar Thakur are proclaimed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused had offered to be released on bail on such terms as the Designated Court may prescribe. The Designated Court was, therefore, under an obligation to admit and release the appellant on bail under Section 20(4) of TADA read with Section 167(2) CrPC on the merits of the application under Section 20(4) itself uninfluenced by any other considerations. 42. From the aforesaid discussion it follows that the order of the Designated Court granting extension of time for completion of investigation to the investigating agency to file the challan and therefore authorising his detention beyond the prescribed period of compulsory custody in the case of appellant Hitendra Vishnu Thakur and the refusal of bail to him under Section 20(4) of the Act on extraneous considerations cannot be sustained and we, consequently, accept the appeal of Hitendra Vishnu Thakur to that extent and set aside the order of the Designated Court refusing to grant bail to him under Section 20(4) of the Act. We further direct that Hitendra Vishnu Thakur be released on bail on his furnishing bail bonds in the sum of ₹ 30,000 with two sureties of the like amount to the satisfaction of the Designated Court s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 18 of the TADA Act. This order has been put in issue in this appeal. 50. While dealing with Criminal Appeal Nos. 732-735 of 1993, we have adverted to the brief facts of the case (CR No. 90 of 1989). In its order dated 17-7-1993, in Criminal Misc. Application No. 62 of 1992, the Designated Court has dealt with some of the statements of the witnesses recorded during the investigation. Since the investigation was not complete and extension had been granted to the investigating agency to further investigate and submit the challan within the extended period, it is obvious that the investigating agency may have recorded some more evidence in the case after 17-7-1993. At the time when TMA No. 76 of 1992 was filed the investigation in the case obviously was going on and it would have been premature for the Designated Court, without scrutiny of the entire material collected during the investigation, to come to any firm conclusion that the case was not triable by the Designated Court and was required to be tried by the regular court. Some of the statements of the witnesses recorded during the investigation, as referred to in the order of the Designated Court, do indicate that some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to refer to and rely upon the statements hitherto recorded from the time of commencement of further investigations by way of reinvestigation at the time of hearing of this petition. 51. The SLP against the dismissal of the writ petition was dismissed by this Court. Moreover, on 23-11-1993 while disposing of SLP Nos. 1643-46 of 1993 (Batch) titled Hitendra Vishnu Thakur Ors. v. State of Maharashtra Ors., this Court issued directions to the Designated Court to frame the charges on or before 13-12-1993 and expedite the trial recording therein the undertaking of counsel for the parties that they would not seek any adjournment on any account thereafter. Thus, in view of the circumstances referred to above and the facts adverted to in the order of the Designated Court, no fault can be found with the order of the Designated Court rejecting the application of the appellant under Section 18 of the Act. 52. We would, however, not like to express any opinion on the merits of the case at this stage because the entire evidence had not been collected much less scrutinised and analysed by the investigating agency or the Designated Court when the application under Section 18 of TADA wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and reads as under : 20-A. (1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police. (2) No court shall take cognisance of any offence under this Act without the previous sanction of the Inspector General of Police, or as the case may be, the Commissioner of Police. The section was obviously introduced to safeguard a citizen from any vexatious prosecution under TADA. Vide Section 20- A(2) of TADA no Court can take cognisance of an offence under TADA unless there is a valid sanction accorded by the competent authority as prescribed by the section. The grievance that since the sanction order referred to some of the activities of the accused person in the year 1984 etc. when the 1987 Act had not even come into force, it rendered the sanction granted by the competent authority as invalid was repelled by the Designated Court and the correctness of that order has been assailed before us. 57. We have gone through the order of sanction under Section 20-A(2) of TADA which has been reproduced by the Designated Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing agency to complete the investigation and file the chargesheet within the prescribed time. 61. The appellant was arrested on 22-9-1992. The appellant was working, as Circle Police Inspector, Thane, during the relevant time. On being produced before the Magistrate, he was remanded to custody from time to time and on 20-10-1992 he was directed to be produced before the Designated Court since the offence of which he was accused of was one under TADA. On 23-10-1992, the appellant applied for bail to the Designated Court and provisional bail was granted to him. His bail application, however, came to be rejected on 16-1- 1993 and he surrendered to the bail bonds. After Section 20 of TADA was amended by Act 43 of 1993 the investigating agency invoked the provisions of clause (bb) of subsection (4) of Section 20 seeking extension of time for completing the investigation and filing the charge-sheet against the appellant through its application dated 6-7-1993. The appellant also preferred a bail application before the Designated Court under Section 20(4) of TADA read with Section 167(2) CRPC seeking release on bail on account of the default of the investigating agency to file the charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication , it would not cease to be a report as envisaged by Section 20(4)(bb) of TADA. Learned counsel, however, argued that extension of time could be granted only for completion of investigation and that the ground on which extension was sought, namely, that the sanction from the Government to launch the prosecution under Section 197 CrPC was awaited, did not justify the grant of extension of time. 65. In the report of the Public Prosecutor, it has been stated that the appellant is a police officer and while the charge-sheet and supplementary charge-sheet against other accused persons have already been filed the charge-sheet against him would be submitted as soon as sanction from the Government is received. Sanction is not strictly speaking a part of the investigation and this legal position was conceded by Mr Tulsi, the learned Additional Solicitor General also relieving us of the need to refer to the settled law on this subject. In the absence of sanction there was no bar to file the charge-sheet and then produce the sanction of the competent authority Subsequently with the permission of the court. We have dealt with in extenso the ambit and scope of clause (bb) of sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following conditions : (1) That appellant shall before being released on bail furnish the correct and complete address of the place where he would be residing within the jurisdiction of the Designated Court. (2) That the appellant shall report at the police station nearest to the place of his residence every week on Mondays; and (3) The appellant shall not leave the place of his residence and move out of the jurisdiction of the Designated Court without seeking permission from the Designated Court and informing the police station concerned about the same. 66. Since we are directing the release of the appellant on bail on account of the default of the prosecution to complete the investigation and file the challan within the prescribed time, nothing said hereabove should be construed as any expression of opinion on the merits of the case. Criminal Appeal No. 739 of 1993 67. The appellant is aggrieved by the rejection of his bail application No. 186 of 1993 in TADA Spl. RA No. 86 of 1992 by the Designated Court on 3-8-1993. The Designated Court granted extension of time to the prosecution to file the charge-sheet under clause (bb) of sub-section (4) of Section 20 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not adopted by the appellant. It is well settled that if the record of a court is to be assailed, a review in that court and not an SLP or an appeal in the Supreme Court is the remedy (see with advantage State of Maharashtra v. Ramdas Shrinivas Nayak (1982) 2 SCC 463: 1982 SCC (Cri) 478: (1983) 1 SCR 8; Apar (P) Ltd. v. Union of India 1992 Supp (1) SCC 1: JT (1991) 4 SC 61). It appears to us that the argument now being raised is clearly an afterthought as it was not even sought to be supported in the memorandum of appeal by any affidavit. In view of the clear observations of the Designated Court we cannot accept the submission of the learned counsel and doubt the correctness of the record of the Designated Court. The argument that the use of the expression on merits in the observations of the Designated Court as extracted above could apply only to an application for bail under Section 20(8) of the Act and not to an application filed under Section 20(4) of TADA is fallacious. Both the applications, whether filed under Section 20(4) of TADA or under Section 20(8) of TADA, are required to be disposed of on their own merits by the Designated Court and, therefore, the distinction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signated Court vide its order dated 3-8-1993. The Designated Court has granted extension to the prosecution to complete the investigation and file the challan in the court on an application filed by the Senior Inspector of Police on 14-7-1993. 73. Mr K.G. Bhagat, the learned Senior Counsel, appearing for the appellants submitted that the Designated Court fell in error in granting extension to the prosecution on the application of the Senior Inspector of Police without any report from the Special Public Prosecutor and for reasons which are not contemplated by clause (bb) of Section 20(4) of TADA. We find substance in his submission. The application seeking extension of time which was filed before the Designated Court reads as follows: Application for extension for further period to file charge-sheet in DEB CID CR No. 217 of 1992. MAY IT PLEASE YOUR HONOUR 1, Shri Shiwaji S. Sawant, Sr. Inspector of Police, DCB CID U-III, Bombay, do hereby state on solemn affirmation as under: 2 I say that I am Investigating Officer in DCB CID CR No. 217 of 1992 which was registered by Byculla Police Station vide CR No. 446 of 1992 and the same was transferred to DCB CID, Bombay, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating officer as the report of the Public Prosecutor. The mere identification by the Public Prosecutor of the deponent of the affidavit (investigating officer) could not justify the application to be treated as a report of the Public Prosecutor. Since there was no report filed by the Public Prosecutor before the Designated Court, the Designated Court faulted in granting extension of compulsory custody on the application of the investigating officer. That apart, the ground on which extension was sought, as emerging from para 4 of the application (supra) did not justify the grant of permission for the extended period in custody even on the report of the Public Prosecutor. Since it is admitted in the said paragraph that the investigation against Accused 1 to 17 is already completed but that the challan could not be filed for some administrative difficulties , it is obvious that the ground for seeking extension of the period of compulsory detention of the appellant was extraneous to the grounds contemplated by clause (bb) of Section 20(4) of TADA. The Designated Court, therefore, fell in error in granting the extension to the prosecution under the said provision. The consequence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants. The. submission is clearly an afterthought and an attempt to get out of a situation of the appellants own making. We, therefore, reject the argument as we find it wholly unacceptable. We are also not persuaded to accept the submission of Mr Bhagat that the reference to the application of the appellant which was not pressed before the Designated Court was to a different application and not to the bail applications filed under Section 20(4) of the Act read with Section 167(2) of the Code. The submission defies logic and is apparently an argument of despair. The two Bail Application Nos. 195 and 196 of 1993 which were being considered and dealt with by the Designated Court were the applications filed by the appellants under Section 20(4) of TADA read with Section 167(2) of the Code and it is futile to contend that the Designated Court while considering those applications recorded the concession with regard to some other application which was not under consideration of the court. The submission of Mr Bhagat is without any basis and is unacceptable. Mr Bhagat lastly submitted that the Designated Court should have, keeping in view the mandate of Section 167(2) of the Code, adm ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
