TMI Blog1995 (8) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... t the distance of 3 K.M. from Gondal town. So on receiving this information, the complainant went to the scene of offence where a dead body of his nephew Jayantilal was lying. One Vespa-scooter of the deceased was also lying there. It was found that there were injury marks by fire on the body of the deceased. There was a certridge of red colour which was used, was lying near the body. It was further stated in the complaint that deceased Jayantilal was travelling on his scooter for going to his vadi from his house at 4.00 p.m. as usual and he was passing throught the way of Ashapura Dam. His vadi is situated on the road of Kotda Sangani Village . 3. It has been alleged that deceased Jayantilal, aged 32 years, was a resident of Gondal and was a leading member of the Patel community. Previously, he was a member of the Gondal Nagar Palika and also Director of Gondal Nagrik Sahakari Bank. The post-mortem revealed that the deceased had received gun-shot injuries and also injuries caused by knives. The murderers had come in a white Ambassador Car No. GIG-375 and had fired twice at the deceased and had caused injuries by sharp weapons. After killing the deceased, the murderers absconded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. 20A. (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 cognizance 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 . 7. Therefore, condition precedent for recording an information about the commission of an offence under TADA is the approval of the District Superintendent of Police and cognizance of any offence under TADA cannot be taken by any court `without the previous sanction of the Inspector- General of Police, or, as the case may be, the Commissioner of Police'. The provision of the statute is clear that the District Superintendent of Police under sub- section(1) can grant approval/sanction for recording of any information about commission of an offence under TADA. The jurisdiction under Section 20A (1)to grant approval for recording of any information about the commission of an offence under TADA, has been vested in the District Superintendent of Police. 8. In the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrested from the limits of Jam- kandorna Police Station along with the car used in the offence. All the four accused declare during investigation that they reside in Gondal and when accused No.2 and 3 was in need of loan from Gondal Nagrik Sahkari Bank and had contacted the deceased who was director of the said Bank at that time, the deceased had told to the applicant, i.e., accused No.2 and 3 herein that `Go Go, this Bank is not meant for Darbars; for getting loans, only Patels may come to me and no Darbar can get loan'. On this talk, there was quarrel. This quarrel had taken place before about 10 or 12 days and since then the said four Darbars had decided to kill Jayantibhai, else, the strength of Patels will be increasing, therefore, since last 10 days, they were planning to kill Jayantibhai and on 15.3.1995 on finding an opportunity, they have killed him. In past also the murder of MLA of Gondal, Popatbhai Sorathia by the member of Darbar community. Therefore, on happening of the present incident, the members of Patel community are feared and frightened and nobody dared to come to Police Station. Later on Jayantibhai Dhol a leader of Patel community , informed us on tele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural, was informed accordingly. There is nothing in the Act to suggest that the Additional Chief Secretary has to grant permission to the District Police Superintendent for proceeding under TADA. 11. The case against the appellants originally was registered on 19th March, 1995 under the Arms Act. The DSP did not give any prior approval on his own to record any information about the commission of an offence under TADA. On the contrary, he made a report to the Additional Chief Secretary and asked for permission to proceed under TADA. Why? was it because he was reluctant to exercise jurisdiction vested in him by the provision of Section 20A (1)? This is a case of power conferred upon one authority being really exercised by another. If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority's instruction, then it will be a case of failure to exercise discretion altogether. In other words, the discretion vested in the DSP in this case by Section 20A (1) was not exercised by the DSP at all. 12. Reference may be made in this conne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven by the State Government without proper application of mind. We have taken this view because the sanction/consent was given by the Government merely on the basis of the FAX message dated 17.3.1995 of the DSP. The reason for our saying so is that though there is on record a FAX message of Deputy Director General of Police also, which is dated 18.3.1995, the sanction/ consent order has mentioned above the FAX message of the DSP only. Now, no doubt the message of the DSP is quite exhaustive, as would appear from that message which has been quoted above in full, we are inclined to think that before agreeing to use of harsh provisions of TADA against the appellants, the Government ought to have taken some steps to satisfy itself whether what had been stated by the DSP was brone out by the records, which apparently had not been called for in the present case, as the sanction/consent was given post haste on 18.3.1995, i.e., the very next day of the message of the DSP. It seems the DSP emphasised the political angle in the first two paragraphs of his message. The dispute or motive stated was that the Darbars were annoyed because they were refused loan and not because of any political r ..... 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