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.
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.
