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Saturday, May 14, 2016

the prosecution has to fail due to non-compliance of the mandatory requirements of Section 20A of the TADA Act= “20-A Cognizance of offence. (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.”=since the prior approval of the District Superintendent of Police was not taken in the instant case, the trial got vitiated on this ground itself. The appeals filed by the convict persons being Criminal Appeal Nos. 464-466 of 2013 are allowed setting aside their conviction.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                   CRIMINAL APPEAL  NO(S).  2464-2466/2014


STATE OF RAJASTHAN                             APPELLANT(S)

                                VERSUS

MOHINUDDIN JAMAL ALVI & ANR.                  RESPONDENT(S)



                                    WITH
                      CRIMINAL APPEAL NOs. 464-466/2013



                               J U D G M E N T


A.K. SIKRI,J.



      All these appeals arise out of  a  common  judgment  dated  24.04.2012
rendered by the Designated Court for Rajasthan  at  Ajmer  in  TADA  Special
Case Nos. 1, 2 & 3 of 1999.

      Four accused persons were arrayed and prosecuted  by  the  prosecution
under Sections 3(2)(ii), 3(3) and  6(1)  of  the  Terrorist  and  Disruptive
Activities (Prevention) Act, 1987(hereinafter referred to as “TADA Act”  and
 Section 4A  of the Explosive Substances Act,1908.      The TADA  Court  has
acquitted two accused, namely, M. Jamal Alvi and Habib Ahmed. Against  their
acquittal, State of Rajasthan has filed  appeals  which  are  registered  as
Criminal Appeal Nos. 2464-66  of  2014.  Other  two  accused,  namely,  Abre
Rehmat Ansari @ Qari and Dr. Mohd. Jalees Ansari,  have  been  convicted  by
the TADA Court and challenging that conviction,  these  persons  have  filed
Criminal Appeal Nos. 464-466 of 2013. It is for this reason, we  have  heard
all these appeals together which  are  being  disposed  of  by  this  common
judgment.

      Mr. R.K. Dash, learned senior counsel,  appearing  for  the  convicted
accused persons submitted at the outset that he would not be going into  the
merits of the case because of the reason that the prosecution  has  to  fail
due to non-compliance of the mandatory requirements of Section  20A  of  the
TADA Act. For this reason, we are eschewing any discussion on the merits  of
the case.  Section 20A deals with the cognizance of offense that has  to  be
taken under TADA Act and reads as under :-

         “20-A  Cognizance of offence.
(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.”


      As per the aforesaid Section, no information about the  commission  of
offense under TADA is to be  recorded  by  the  police  without  the   prior
approval of District Superintendent of Police. The specific authority  which
is named under sub-Section (1) of Section 20A is District Superintendent  of
Police. In the present case, it is on record  that  the  approval  that  was
taken was of Additional Director General of Police Mr.  Shyam  Partap  Singh
Rathore. The TADA Court has treated the said approval as  valid  because  of
the reason that approval is given by an authority which is higher  than  the
District Superintendent  of  Police.  The  question,  therefore,  is  as  to
whether it is only District Superintendent of  Police  whose  approval  will
meet the requirements of law or it can be given  by  an  Officer  higher  in
rank. This question is no more res integra and is settled  by  a  series  of
judgments of this Court. It is not necessary to give account  of  all  those
judgments as in the latest  judgment  rendered  by  this  Court  in  Hussein
Ghadially @ M.H.G.A.Shaikh & Ors. vs. State of Gujarat  (2014)  8  SCC  425,
all the previous precedents are taken note of and on that basis, this  Court
has reiterated the position in law that even an  authority  higher  in  rank
would not  be  competent  to  give  the  approval  as  required  under  sub-
Section(1)of Section 21A of the TADA Act. The same has been interpreted   in
the said judgment in the following manner:
“21.  A careful reading of the above leaves no  manner  of  doubt  that  the
provision starts with a non obstante  clause  and  is  couched  in  negative
phraseology. It forbids recording of information  about  the  commission  of
offences under TADA  by  the  Police  without  the  prior  approval  of  the
District Superintendent of Police. The question  is  whether  the  power  of
approval vested in the District Superintendent of Police could be  exercised
by either the Government or the Additional  Police  Commissioner,  Surat  in
the instant case. Our answer to  that  question  is  in  the  negative.  The
reasons are not far to seek:

21.1  We say so firstly because the statute vests the grant approval  in  an
authority specifically designated for the purpose. That  being  so,  no  one
except the authority so designated,  can  exercise  that  power.  Permitting
exercise of the power by any other authority whether  superior  or  inferior
to the authority designated by the Statute  will  have  the  effect  of  re-
writing the provision and defeating the legislative purpose behind the  same
- a course that is legally impermissible. In Joint Action Committee  of  Air
Line Pilots’ Association of India V.  Director  General  of  Civil  Aviation
(2011) 5 SCC 435, this Court declared  that  even  senior  officials  cannot
provide any guidelines or direction to the authority under  the  statute  to
act in a particular manner.

21.2. Secondly, because  exercise  of  the  power  vested  in  the  District
Superintendent of Police under Section 20-A (1)  would  involve  application
of mind by the officer concerned to the material placed before  him  on  the
basis whereof,  alone  a  decision  whether  or  not  information  regarding
commission of an offence  under  TADA  should  be  recorded  can  be  taken.
Exercise of the power granting or refusing approval under Section  20-A  (1)
in its very nature casts a duty upon the officer concerned to  evaluate  the
information and determine  having  regard  to  all  attendant  circumstances
whether or not a case for invoking the  provisions  of  TADA  is  made  out.
Exercise of that power by anyone other than the  designated  authority  viz.
the District Superintendent of Police would amount to such  other  authority
clutching at the jurisdiction of the  designated  officer,  no  matter  such
officer or authority purporting to exercise that power is superior  in  rank
and position to the officer authorised by law to take the decision.



21.3. Thirdly, because if the Statute provides for a thing to be done  in  a
particular manner, then it must be done in  that  manner  alone.  All  other
modes  or  methods  of  doing  that  thing  must  be  deemed  to  have  been
prohibited. That proposition of law first was stated  in  Taylor  v.  Taylor
(1875)LR 1 ChD 426 and adopted later by  the  Judicial  Committee  in  Nazir
Ahmed v. King Emperor AIR 1936 PC 253 and by  this  Court  in  a  series  of
judgments including those in Rao Shiv Bahadur  Singh  &  Anr.  v.  State  of
Vindhya Pradesh AIR 1954 SC 322, State of Uttar Pradesh  v.  Singhara  Singh
AIR 1964 SC 358, Chandra Kishore Jha v. Mahavir Prasad  1999  (8)  SCC  266,
Dhananjaya Reddy v. State of Karnataka 2001  (4)  SCC  9  and  Gujarat  Urja
Vikas Nigam Ltd. V. Essar Power Ltd. 2008 (4) SCC 755. The principle  stated
in the above decisions applies to the cases at hand  not  because  there  is
any specific procedure that is  prescribed  by  the  Statute  for  grant  of
approval but because if the approval could  be  granted  by  anyone  in  the
police hierarchy the provision specifying the authority for  grant  of  such
approval might as well not have been enacted.”





      In arriving at the aforesaid conclusion, the Court  also  referred  to
and  relied  upon  the  three  Judge  Bench  decision  of  this   Court   in
Anirudhsinhji Karansinhji Jadeja & Anr. Vs State of  Gujarat  (1995)  5  SCC
302, in which the position in law was stated in the following manner:

“11. The case against the appellants originally was registered on  19-3-1995
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  20-A(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 20-A(1) was not exercised by the DSP at all.”


      Learned counsel appearing for the State of Rajasthan  tried  to  argue
that the Division Bench in the  aforesaid  judgment   in  Hussein  Ghadially
@M.H.G.A.Shaikh & Ors. (Supra) did not interpret the  decision  rendered  in
Anirudhsinhji Karansinhji Jadeja & Anr. (Supra) correctly. As  according  to
him, in Anirudhsinhji Karansinhji Jadeja &  Anr.  (Supra),  this  Court  had
given one more reason for quashing the TADA proceedings which  is  contained
in para 15 of the said judgment, as in the said para, the Court  noted  that
the State Government had given sanction without even discussing  the  matter
with  the  Investigating  Officer  and  without  assessing   the   situation
independently which showed lack of proper and due  application  of  mind  of
the State Government by giving sanction/consent. His  submission  predicated
on para 15 of the said judgment that the prosecution  would  be  treated  as
bad in law only if there was a default on the  part  of  the  prosecutor  on
both the aspects, namely, only when violation of sub-Section(1)  of  Section
20A as well as grant of prior approval by  the  District  Superintendent  of
Police is not  there  and  also  when  the  State  Government  while  giving
sanction/consent has not applied its mind independently.  We  do  not  agree
with the contention of the learned counsel for the State. From  the  reading
of the judgment in Anirudhsinhji  Karansinhji  Jadeja  &  Anr.  (Supra),  it
becomes clear that this Court had given  the  aforesaid  two  reasons  while
holding that the trial against the accused persons in the  said  case  under
TADA was vitiated.  However, that does not mean that both the  reasons  have
to be satisfied. Even both are independent of each other  and  even  if  one
violation is found that would be sufficient to  upset  the  trial.  That  is
what this Court did in  Hussein Ghadially @ M.H.G.A.Shaikh & Ors. (Supra).

      From the aforesaid it becomes clear that since the prior  approval  of
the District Superintendent of Police was not taken  in  the  instant  case,
the trial got vitiated on this ground  itself.  The  appeals  filed  by  the
convict persons being Criminal Appeal  Nos.  464-466  of  2013  are  allowed
setting aside their conviction. The other appeals  which  are  preferred  by
the State being Criminal Appeal Nos. 2464-2466 of 2014 are dismissed.
      The two convicts, namely, Abre Rehmat Ansari  @  Qari  and  Dr.  Mohd.
Jalees Ansari shall be released forthwith, if they are not required  in  any
other case.


                                       ......................J.
                                                  [A.K. SIKRI]


                                             ......................J.
                                                  [R.K.AGRAWAL]
NEW DELHI;
MAY 04, 2016.

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