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TMI Blog2011 (5) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... 1993 by one Ajit Kumar Sarma, Office-in-Charge of Bihpuria Police Station against several persons including the appellant. Of the four accused persons, no charges were framed against Moni Pathak. In so far as Bhaben Gogoi @ Bikram was concerned, he was acquitted by the designated court and Indreswar Hazarika @ Babul Handique died during the pendency of the proceedings before the designated court. Only Rangku Dutta @ Ranjan Kumar Dutta was convicted and is the appellant before us. The FIR which has been lodged on 6.11.1993 runs as follows:- "I beg to report that on 5.11.93 at 2150 hrs. while SI AQM Zahingir I/C Dholpur O.P. along with the PSO Hav. Loknath Konwar and other police personnel were informed law and order duty in connection with Debraj Theatre show at Dhalpur circle in open place by the side of Hill, some ULFA extremist fired at SI AQM Zahingir and PSO Hav. Loknath under simultaneously from a close range behind them and as a result both of them succumbed to injuries. Earlier of this incident on 5.10.93 an encounter took place between the ULFA with Dhalpur O.P. Place and under the leadership of SI AQM Zahangir I/C Dhalpur O.P. where Lakhimpur Dist. ULFA commander Jogen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence 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, Commissioner of Police. Relying on the said section, the learned Counsel for the appellant submitted that from the evidence of PW 15 Ajit Kumar Sarma who recorded the FIR, it is clear that he did not take the approval of the Superintendent of Police before recording the FIR. In his cross-examination, PW 15 clearly stated "I did not obtain the approval from the concerned SP for registering the case." From the evidence of PW 11, who is one Sanjit Sekhar Roy, learned counsel stated that the said PW 11 was working on 22.6.2000 as DSP Headquarter at North Lakhimpur. In his cross- examination, he stated that the occurrence took place on 6.11.1993 and prior to the filing of the Ejahar which is the FIR, the written approval of the SP concerned was not obtained and in the Ejahar itself, There is no approval of SP, North Lakhimpur. We have looked into the original FIR Exhibit P-12. In the original FIR, the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, clear that approval has to be taken, even if it is an oral approval. Attention of this Court has also been drawn to a decision rendered in Hitendra Vishnu Thakur and Others Vs. State of Maharashtra and Others 1994(4)SCC 602 as to the requirement of the provision of Section 20(A)(1). The learned Judges of this Court after considering various provisions of the said Act held that the requirement of Section 20(A)(1) of TADA was introduced by way of an amendment with a view to prevent abuse of the provisions of TADA. We, therefore, reiterate the principles laid down by this Court in paragraph 12 by Justice Dr. A.S. Anand(as His Lordship then was), which is set out below:- "Of late, we have come across some cases where the Designated Courts have charge-sheeted and/or convicted an accused person under TADA even though there is not even an iota of evidence from which it could be inferred, even prima facie, let alone conclusively, that the crime was committed with the intention as contemplated by the provisions of TADA, merely on the statement of the investigating agency to the effect that the consequence of the criminal act resulted in causing panic or terror in the society or in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative". Section 80 and Section 87-B of the Code of Civil Procedure, 1908, section 77 of the Railways Act, 1890; section 15 of the Bombay Rent Act, 1947; section 213 of the Succession Act, 1925; section 5-A of the Prevention of Corruption Act, 1947; section 7 of the Stamp Act, 1899; section 108 of the Companies Act, 1956; section 20(1) of the Prevention of Food Adulteration Act, 1954; section 55 of the Wild Life Protection Act, 1972, the proviso to section 33(2)(b) of the Industrial Disputes Act, 1947 (as amended in 1956); section 10A of Medical Council Act, 1956 (as amended in 1993), and similar other provisions have therefore, been construed as mandatory. A provision requiring 'not les than three months' notice is also for the same reason mandatory." We are in respectful agreement with the aforesaid statement of law by the learned author. So there can be no doubt about the mandatory nature of the requirement of this Section. Apart from that, since the said section has been amended in order to prevent the abuse of the provisions of TADA, this Court while examining the question ..... X X X X Extracts X X X X X X X X Extracts X X X X
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