REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.498 of 2012
SEENI NAINAR MOHAMMED
...APPELLANT(S)
:VERSUS:
STATE REP. BY DEPUTY SUPERINTENDENT
OF POLICE
...RESPONDENT(S)
With
CRIMINAL APPEAL NO.867 of 2012
SHAHUL HAMEED & ORS.
...APPELLANT(S)
:VERSUS:
STATE REP. BY DEPUTY SUPERINTENDENT
OF POLICE ...RESPONDENT(S)
J U D G M E N T
Pinaki Chandra Ghose, J.
1. These two appeals are directed against the judgment and order dated
8th September, 2011 passed by the Court of Designated Judge for TADA
Cases, Tirunelveli, in TADA Case No.1/1997, whereby the learned
Designated Judge found the appellants herein guilty for offences
punishable under Section 120(B) read with Sections 302, 147, 148 & 149
of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and
Sections 3(2), 3(3) & 3(4) of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 ( for short “TADA”) and sentenced them to life
imprisonment.
2. The facts of the case have been elaborately discussed by the learned
Special Judge of the Designated Court for adjudication of TADA cases.
We need not, therefore, recapitulate the entire factual backdrop in
which the appellants were tried, found guilty and sentenced, excepting
where it is absolutely necessary to do so. There are six accused in
this case, namely, Sahul Hameed (A-1), Raja Hussain (A-2), Zubeir (A-
3), Zakir Hussain (A-4), Azeez (A-5) and Seeni Nainar Mohammed (A-6).
On 10th October, 1994, at about 06:30 a.m., A-1 to A-6 in pursuance of
the conspiracy hatched amongst them, went to the house of one
Rajagopalan (since deceased), who was President of Hindu Munnani
Association, with a motive to kill him. A day before the incident, A-
6 Seeni Nainar Mohammed had advised his brother Raja Hussain (A-2) to
meet him after completing the task of murdering Rajagopalan. When
Rajagopalan, after taking the newspapers from a newspaper sub-agent
Saravanam (PW-3), was going through the newspapers facing East at his
house, accused persons came from left hand side of Rajagopalan and
while A-1 caught hold of the neck of Rajagopalan from behind, A-3 and
A-4 took out knives and stabbed on his stomach. A-5 showing a sickle
threatened the public to run away and repeatedly attacked the said
Rajagopalan and thereafter they ran away towards west. On hearing the
noise, PW-1 Krishnaveni wife of the deceased came out of the house and
saw that her husband was lying down in a pool of blood. The occurrence
was witnessed by PW-1, PW-3, PW-4, PW-5 & PW-6. PW-1 informed about
the incident to the Market Police Station on telephone. Upon receiving
the information, PW-2 Inspector of Market Police Station rushed to the
spot and enquired from PW-1 who gave a written complaint to him.
3. Law was set into motion when PW-2 Stalin Michael, Inspector registered
the FIR Ext.P2 at 07:30 a.m. at Police Station Thilagar Ground,
Madurai District, under Sections 147, 148 and 302 of IPC in Crime
No.2490/1994. On the orders of DGP, the case was transferred from
local Police to CBCID and Shri Rajagopal, DSP (PW-24) took up the
investigation, went to the place of occurrence, examined the witnesses
and recorded their statements. Since PW-24 was holding
additional charge, he could not accomplish the task of investigation
and further investigation was taken up by Shri Jones, DSP (PW-30) and
after receiving prior approval from Superintendent of Police (PW-26),
registered the case under TADA. The records of the case were
transferred to the learned Designated Judge for TADA Cases and after
trial, the learned Designated Judge vide his judgment and order dated
08.09.2011 convicted all the accused in TADA Case No.1/1997 holding
that the prosecution has proved the first charge as against A-1 to A-
6. A-1 to A-5 were convicted under Section 3(2) read with Section 3(1)
of TADA read with Section 149 of IPC and sentenced to undergo life
imprisonment and to pay a fine of Rs.10,000/- each, and in default of
payment of fine, to undergo rigorous imprisonment for 1 year. However,
A-6 was convicted under Section 3(2) read with 3(1) of the TADA read
with Section 109 of IPC and under Section 3(4) of TADA and sentenced
to undergo life imprisonment and also to pay a fine of Rs.5,000/- and
in default of payment of fine, to undergo rigorous imprisonment for 1
year. However, all the sentences were directed to run concurrently.
Hence, the present appeals under Section 19 of TADA read with the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,
1970. Criminal Appeal No.498 of 2012 has been filed by A-6 while
Criminal Appeal No.867 of 2012 has been filed by A-1 to A-5.
4. We have carefully perused the impugned judgment and the material on
record and have also meticulously examined the testimonies of the
witnesses and other relevant evidence produced. Since the appellate
jurisdiction against any judgment passed by the Designated Court for
TADA cases lies with this Court only, we would consider the peculiar
circumstances of the present case to appropriately discuss every
relevant issue in question before us.
5. The very first issue which falls for our determination as pressed by
the learned senior counsel for the accused-appellants herein is
whether the approval in the present case can be said to be sufficient
compliance of the provisions of Section 20-A of TADA which 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.”
6. We have considered the fact that after the investigation, PW-30 DSP of
CBI approached PW-28 IG on 13th September, 1997 seeking sanction for
prosecution against A-1 to A-5 for offences under TADA Act. PW-28 on
16th September, 1997 granted the sanction (Ext.P-46) for prosecution
against A-1 to A-5 under TADA Act. It is stated by PW-28, IG that he
perused all the records placed by PW-30, along with requisition,
seeking for sanction containing the Inquest Report, Post-mortem
Report, 164 Statements of eye-witnesses and 161 Statements of other
witnesses, confession of A-1 and other materials and granted sanction
for prosecution against A-1 to A-5 under Section 3 of the TADA Act,
1987. It is also to be noted that in the course of investigation, the
confession of A-6 (Ext.P-43) dated 25.10.1994 was recorded by PW-26
SP, on the basis of the requisition given by PW-24 DSP, CBCID. The
case was subsequently transferred to CBI in July, 1996 and on
transfer, PW-30 CBI, DSP took up the investigation on 17.07.1996.
7. We have also noted that the sanction (Ext.P-46) granted on 16.09.1997
by PW-28 IG, referred to A-1’s confession (Ext.P-41) only recorded on
3.04.1997 but it does not refer to the confession of A-6 (Ext.P-43)
which was recorded on 25.10.1994. This was the only document which
revealed that A-6 addressed and advised A-1 to A-5 to commit the
murder of Rajagopalan, with intention to create terror in the minds of
public at large in Tamil Nadu. Therefore, the confession of A-6 (Ext.P-
43) is the only document which refers to the intention to create
terror as required under Section 3 of TADA Act. No other material or
no other witness speaks about the intention of the accused to commit
the murder with intention to create terror in the minds of public
which is main ingredient for invoking the TADA Act. Unfortunately, the
said document (Ext.P-41) has neither been referred to nor relied upon
by the Sanctioning Authority in the sanction order (Ext.P-46).
8. We have also noticed that the confession of A-1 (Ext.P-41) is totally
contradictory to the confession of A-6 (Ext.P43). It appears from the
facts that the Investigating Officer suppressed the material document
by not placing the same before the Sanctioning Authority. We have
further noticed that the TADA Court convicted the accused under the
TADA Act on the basis of confession of A-6 and not on the basis of any
other material. The other point which we have noted is that the
Sanctioning Authority (PW-28) admitted in his deposition that he did
not know Tamil and did not go through the entire records which were in
Tamil. Therefore, it is clear that the Sanctioning Authority has not
applied his mind to the records in its entirety and granted sanction
only after considering certain documents which were in English.
Therefore, we have to accept the contention of the appellants that the
Sanctioning Authority without perusing the relevant documents issued
the order of sanction and thereby it has to be accepted that the
sanction was granted mechanically.
9. The confessions of A-1 and A-6 are not voluntary as has been evidenced
by us from the materials since those confessions were not recorded in
a free atmosphere thereby it violated the directions given by this
Court. Further, the said confessions could not be relied upon as they
contradicted with each other.
10. We, without hesitation, are of this considered opinion that the answer
to this question is in the negative for settled principle of non-
application of mind by sanctioning authority while granting approval
for taking cognizance under TADA Act and undermining the objective of
the Act. This relevant provision was inserted by Act 43 of 1993 which
came into force on 23.05.1993 which is prior to the date of commission
of the offence i.e., 10.10.1994 disputed in instant appeal which makes
it crystal clear that Section 20-A(1) of TADA must be construed by
indicating that prior approval from the competent authority is
mandatory for taking cognizance of offence punishable under TADA.
However, it shall always be borne in mind by the sanctioning authority
that application of such provisions which forms part of penal statues
requires strict interpretation and failure to comply with the
mandatory requirement of sanction before cognizance is taken, as
mentioned in TADA, may vitiate the entire proceedings in the case. In
the recent past, it has been observed by this Court in respect of
Section 20-A of TADA in the case of Hussein Ghadially @ M.H.G.A Shaikh
& Ors. Vs. State of Gujarat, (2014) 8 SCC 425, at para 21, as follows:
“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.”
11. The most important factor for determination before the sanctioning
authority was that the acts done by a person must fall within the
ambit of terrorist activity and the accused must be a terrorist as
defined in Section 3(1). This position of law was discussed by this
Court in the case of Kalpnath Rai Vs. State (Through CBI), (1997) 8
SCC 732, as follows:
“34. Sub-section 3(5) was inserted in TADA by Act 43 of 1993
which came into force on 23-5-1993. Under Article 20(1) of the
Constitution ‘no person shall be convicted of any offence except
for violation of a law in force at the time of the commission of
the act charged as an offence’. So it is not enough that one was
member of a terrorists’ gang before 23-5-1993.
35. There are two postulates in Sub-section (5). First is that
the accused should have been a member of ‘a terrorists gang’ or
‘terrorists organisation’ after 23.5.1993. Second is that the
said gang or organisation should have involved in terrorist acts
subsequent to 23.5.1993. Unless both postulates exist
together Section 3(5) cannot be used against any person.
36. ‘Terrorist act’ is defined in Section 2(h) as having the
meaning assigned to it in Section 3(1). That sub-section reads
thus:
‘3(1) Whoever with intent to overawe the Government as by law
established or to strike terror in 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 fire-arms 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 essential to the life of the
community, or detains any person and threatens to kill or injure
such person in order to compel the Government or any other
person to do or abstain from doing any act, commits a terrorist
act.’
37. The requirements of the sub-section are: (1) the person
should have done an act in such a manner as to cause, or as is
likely to cause death or injuries to any person or damage to any
property, or disruption of any supplies; (2) doing of such act
should have been by using bombs, dynamites etc.; (3) or
alternatively he should have detained any person and threatened
to kill or injure him in order to compel the Government or any
other person to do or abstain from doing anything.”
12. Mr. Karpaga Vinayagam, learned senior counsel appearing for the
appellants submitted that the Prior Approval for investigating the
case under TADA, granted by PW-26 in the present case, is bad in law
as the same has been granted by PW-26 mechanically, without going
through the records and without recording his satisfaction. A careful
perusal of the requisition given by PW-24 to PW-26 for seeking prior
approval (Ext.P-35) reveals that a single murder on 10.10.1994 was
mentioned therein but no act of murder with intent to create terror
and panic in the minds of public, which is the main ingredient of the
offence under TADA Act, was mentioned. The incident prior to this
murder relating to objections raised by Hindus on the construction of
mosque near Hindu temple in Madurai was mentioned in the deposition of
PW-24, which could nowhere be referred or connected to act of murder.
Admittedly, as per his deposition, till 19.10.1994, none gave any
complaint that there was any commotion or violence at the place of
occurrence, resultantly connecting the case under IPC to be a prima
facie case under TADA leading to seeking prior approval, which if
granted, would be bad in the eyes of law.
13. We have also noticed that the Sanctioning Authority under Section 20-
A(2) of TADA, i.e. PW28 - IG, CBI in present case, had granted
permission to file a case under TADA on 16.09.1997 vide permission
order being Ext.P.46 and in his deposition PW-28 stated that “… I
verified the TADA Rules very carefully. Upon perusing the said
documents as I was satisfied that there are ample evidences to file a
case against A1 to A5, namely Shahul Hameed, Raja Hussain, Subair,
Zahir Hussain and Aziz alias Abdul Aziz under the TADA Act, I issued
orders granting permission to file a case under section 3 of the TADA
Act…”. We may straightaway observe that the sanctioning authority did
not have necessary material before him to show that the alleged act of
causing death of the deceased was done with intent to create terror in
the minds of public at large. Had there been any such terror in the
minds of people, then as an aftermath of the death of the deceased
there would have been an adverse effect on the harmony amongst
different sections of people in the vicinity of the place of incident.
However, no such incident of striking terror in the minds of people or
adverse effect on the harmony amongst any section of society was
reported. The alleged act of causing death of an individual was only
an attack by the accused-appellants with weapons on the deceased who
later succumbed to the injuries.
14. We have noticed that sanction under Section 20-A(2) of TADA in respect
of A-6 was granted by PW-29 on 16.09.1998, which was delayed due to
time consumed in the investigation against him. In our considered
opinion, the same is also unlawful for the reasons mentioned above.
Furthermore, cross examination of PW-30 is also reflecting the non-
application of mind when after specifically stating about relationship
of the accused-appellants herein with Alumma organization, it was
deposed by him that he did not collect any evidence or document to
show that accused belonged to that organization. In our considered
opinion, the said sanctions, which have not been proved by the
depositions of these witnesses, are not as per the mandate of law laid
down by this Court in the case of State of Maharashtra Vs. Mahesh G.
Jain, (2013) 8 SCC 119, and Kootha Perumal Vs. State, (2011) 1 SCC
491.
15. After going through the records, it appears to us that the accused-
appellants had grudge in their minds because the deceased used to
organize Vinayaga Chaturthi Celebrations in various places and
criticize Muslims and Islam which includes a public notice by the
deceased wherein he had demanded protection of Madurai City which,
according to the deceased, was being used by Pakistan as the base for
spying activity. The issuance of this public notice was proved by PW-
11, A.R. Kalidasan. Instances of pelting stones by the appellants
herein were proved by the evidence of PW-10, as corroborated by the
deposition of PW-13.
16. Mr. P. K. Dey, learned counsel for respondent-CBI has drawn our
attention to the decision of this Court in Kartar Singh Vs State of
Punjab, 1994 (3) SCC 569, wherein at para 451, this Court observed:
“Mere possession of arms and ammunition specified in the section
has been made substantive offence. It is much serious in nature
and graver in impact as it results in prosecution of a man
irrespective of his association or connection with a terrorist
or terrorist activity. A comparison of this section with
Sections 3 and 4 demonstrates the arbitrariness inherent in it.
Section 3 operates when a person not only intends to overawe the
Government or create terror in people etc. but he uses the arms
and ammunitions which results in death or is likely to cause
death and damage to property etc. In other words, a person
becomes a terrorist or is guilty of terrorist activity when
intention, action and consequence all the three ingredients are
found to exist. Similarly Section 4 applies to those activities
which are directed towards disrupting sovereignty and
territorial integrity of the country. Thus a terrorist or a
disruptionist and a person possessing any of the arms and
ammunition mentioned in the section have been placed on a par.
In Sections 3 and 4 the offence arises on the act having been
done whereas in Section 5 it is founded only on possession. Even
under sub-section (3) of Section 3 a person is liable to be
prosecuted for abetting the offence if he assists or
communicates with a terrorist. Sub-sections (5) and (6) inserted
by Act 43 of 1993 to Section 3 also require that a person can be
prosecuted only if he is found to be a member of a terrorist
gang or terrorist organisation etc. The Act, therefore,
visualises prosecution of the terrorist or disruptionist for
offences under Sections 3 and 4 and of others only if they are
associated or related with it. That is in keeping with the
objective of the Act. The legislation has been upheld as the
legislature is competent to enact in respect of a crime which is
not otherwise covered by any Entry in List II of the Seventh
Schedule. The definition of the crime, as has been discussed
earlier, is contained in Sections 3 and 4 of the Act and it is
true that while defining the crime it is open to the legislature
to make provision which may serve the objective of the
legislation and from a wider point of view one may say that
possession of such arms, the use of which may lead to terrorist
activity, should be taken as one of the offences as a preventive
or deterrent provision. Yet there must be some inter-relation
between the two, howsoever, remote it may be. The harshness of
the provisions is apparent as all those provisions of the Act
for prosecuting a person including forfeiture of property,
denial of bail etc., are applicable to a person accused of
possessing any arms and ammunition as one who is charged for an
offence under Sections 3 and 4 of the Act. It is no doubt true
that no one has justification to have such arms and ammunitions
as are mentioned in Section 5, but unjustifiable possession does
not make a person a terrorist or disruptionist. Even under
Ireland Emergency Provisions Act, 1978 on which great reliance
was placed by learned Additional Solicitor General there is no
such harsh provision like Section 5. Since both the substantive
and procedural law apply to a terrorist and disruptionist or a
terrorist act or a disruptive act, it is necessary, in my
opinion, that this section if it has to be immune from attack of
arbitrariness, may be invoked only if there is some material to
show that the person who was possessed of the arms intended it
to be used for terrorist or disruptionist activity or it was an
arm and ammunition which in fact was used.”
(emphasis supplied)
17. He further relied upon judgment of this Court in the case of Girdhari
Parmanand Vadhava Vs. State of Maharashtra, (1996) 11 SCC 179, wherein
it was enunciated that a crime even if perpetrated with extreme
brutality may not constitute “terrorist activity” within the meaning
of Section 3(1) of TADA. For constituting “terrorist activity”, the
activity must be intended to strike terror in people or a section of
the people or bring about other consequences referred to in Section
3(1). Terrorist activity is not confined to unlawful activity or crime
committed against an individual or individuals but it aims at bringing
about terror in the minds of people or section of people disturbing
public order, public peace and tranquillity, social and communal
harmony, disturbing or destabilising public administration and
threatening security and integrity of the country.
18. Therefore, it will be very dangerous for us, in the absence of
legislative attempt, to provide with an opinion to define whether any
activity falls within the definition of terrorist activity or not.
After all the legislative intent behind enactment of any statute shall
prevail. This Court had opined in the words of Justice Dr. A. S. Anand
in Hitendra Vishnu Thakur & Ors. Vs. State Of Maharashtra & Ors.,
(1994) 4 SCC 602, that
“7. 'Terrorism' is one of the manifestations of increased
lawlessness and cult of violence. Violence and crime constitute
a threat to an established order and are a revolt against 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
law enforcement agencies to tackle it under the ordinary penal
law. Experience has shown us that 'terrorism' is generally an
attempt to acquire or maintain power or control by intimidation
and causing fear and helplessness in the minds of the people at
large or any section thereof and is a totally abnormal
phenomenon. What distinguishes 'terrorism' from other forms of
violence, therefore, appears to be the deliberate and systematic
use of coercive intimidation. More often than not, a hardened
criminal today takes advantage of the situation and by wearing
the cloak of 'terrorism', aims to achieve for himself
acceptability and respectability in the society because
unfortunately in the States affected by militancy, a 'terrorist'
is projected as a hero by his group and often even by the
misguided youth. It is therefore, essential to treat such a
criminal and deal with him differently than an ordinary criminal
capable of being tried by the ordinary courts under the penal
law of the land. Even though the crime committed by a
'terrorist' and an ordinary criminal would be overlapping to an
extent but then it is not the intention of the Legislature that
every criminal should be tried under TADA, where the fall out of
his activity does not extend beyond the normal frontiers of the
ordinary criminal activity. Every 'terrorist' may be a criminal
but every criminal cannot be given the label of a 'terrorist'
only to set in motion the more stringent provisions of TADA. The
criminal activity in order to invoke TADA must be committed with
the requisite intention as contemplated by Section 3(1) of the
Act by use of such weapons as have been enumerated in Section
3(1) and which cause or are likely to result in the offences as
mentioned in the said section.”
19. We would, therefore, make it abundantly clear that these relied cases
do not help the respondent to make a case under the provisions of TADA
in the absence of intention to cause terror in the minds of people or
strike on them with terror. Therefore, in our considered opinion, the
approvals granted by the Superintendent of Police (PW-26) and the IG,
CBI (PW-28), in the facts and circumstances of the present case, were
completely invalid lacking compliance of the requirements prescribed
under Section 20-A of TADA. Albeit, it can rightly be opined that
prior approvals were bad in law in the present case, nevertheless, it
cannot be said that the entire proceedings against the accused-
appellants under TADA, were vitiated in the light of the judgment in
the case of Ashrafkhan alias Babu Munnekhan Pathan & Anr. Vs. State of
Guajrat, (2012) 11 SCC 606, wherein this Court observed:
“33. Now we proceed to consider the submission advanced by the
State that non-compliance with Section 20-A(1) i.e. absence of
approval of the District Superintendent of Police, is a curable
defect under Section 465 of the Code. We do not have the
slightest hesitation in holding that Section 465 of the Code
shall be attracted in the trial of an offence by the Designated
Court under TADA. This would be evident from Section 14 (3) of
TADA which reads as follows:
‘14.Procedure and powers of Designated Courts.-
(1)-(2) …
(3) Subject to the other provisions of this Act, a
Designated Court shall, for the purpose of trial of any
offence, have all the powers of a Court of Session and
shall try such offence as if it were a Court of Session so
far as may be in accordance with the procedure prescribed
in the Code for the trial before a Court of Session.’
34. From a plain reading of the aforesaid provision it is
evident that for the purpose of trial Designated Court is a
Court of Session. It has all the powers of a Court of Session
and while trying the case under TADA, the Designated Court has
to follow the procedure prescribed in the Code for the trial
before a Court of Session. Section 465 of the Code, which falls
in Chapter 35, covers cases triable by a Court of Session also.
Hence, the prosecution can take shelter behind Section 465 of
the Code. But Section 465 of the Code shall not be a
panacea for all error, omission or irregularity. Omission
to grant prior approval for registration of the case under
TADA by the Superintendent of Police is not the kind of
omission which is covered under Section 465 of the Code. It is
a defect which goes to the root of the matter and it is not one
of the curable defects.”
20. We are therefore of this considered opinion that as a result of
illegal sanction order the criminal proceedings for prosecution under
the TADA Act are vitiated entirely. Suffice it to say that Learned
Court under the TADA Act has grossly erred in taking cognizance of the
case.
21. Mr. M. Karpaga Vinayagam, learned senior counsel appearing for the
appellants advanced three main submissions, apart from challenging the
sanction granted by the competent authority which has already been
discussed in earlier paragraphs. He submitted that the eye-witnesses
and PW-7 are not reliable. He further submitted that A-1’s confession
is not voluntary and there has been non-examination of material
witnesses. Concluding with his arguments he would say that the
Identification Parade is a farce and that there are infirmities in the
depositions of the Investigating Officers being PW-2, PW-24 & PW-30.
22. We have reappreciated the evidence on record and considered the
arguments advanced by Mr. P.K. Dey, learned counsel appearing for the
respondent-CBI. Though we find little difficulty in accepting the view
taken by the learned Designated Court in its entirety, as it arises
from several notable facts, it is not and cannot be disputed that the
deceased was killed at the entrance of his house. The post-mortem
report being Ext.P-14, which was duly proved by PW15 - Dr.
Thiagarajan, also mentioned the cause of death being shock and
haemorrhage due to multiple cut and stab injures sustained by the
deceased somewhere near 5 O’clock in the morning on 10.10.1994. We
have noticed that PW-1 was never called for identification of the
accused-appellants.
23. Apropos question of reliability of the test identification parade in
the present case, when admittedly accused were already seen through
newspaper, we emphasise on few judgments of this Court before coming
to the answer to this question. This Court in the case of Suresh
Chandra Bahri Vs. State of Bihar, 1995 Supp (1) SCC 80, has held:
“ 78….From this point of view it is a matter of great importance
both for the investigating agency and for the accused and a
fortiori for the proper administration of justice that such
identification is held without avoidable and unreasonable delay
after the arrest of the accused and that all the necessary
precautions and safeguards were effectively taken so that the
investigation proceeds on correct lines for punishing the real
culprit. It would, in addition, be fair to the witness concerned
also who was a stranger to the accused because in that event the
chances of his memory fading away are reduced and he is required
to identify the alleged culprit at the earliest possible
opportunity after the occurrence. It is in adopting this course
alone that justice and fair play can be assured both to the
accused as well as to the prosecution. But the position may be
different when the accused or a culprit who stands trial had
been seen not once but for quite a number of times at different
point of time and places which fact may do away with the
necessity of TI parade.”
24. We accept the contention of the learned senior counsel for the
appellants that the test identification parade was a farce as after
the pictures of the accused had been published in the newspaper, the
identification parade which is a very weak piece of evidence should
not have been conducted.
25. Before concluding this judgment, it would be necessary to consider the
most important factor to which our attention was invited by the
learned counsel for the respondent, i.e., confession of accused and
unearthing of conspiracy and recovery of evidences thereafter. Having
regard to observation recorded so far, emphasis on the judgment
delivered by this Court in State (NCT of Delhi) Vs. Navjot Sandhu,
(2005) 11 SCC 600, is necessary wherein it was observed:
“28. In the Privy Council decision of Pakala Narayana Swami vs.
Emperor, AIR 1939 PC 47, Lord Atkin elucidated the meaning and
purport of the expression 'confession' in the following words:
"[A] confession must either admit in terms the offence, or at
any rate substantially all the facts which constitute the
offence. An admission of a gravely incriminating fact, even a
conclusively incriminating fact is not of itself a confession…"
29. Confessions are considered highly reliable because no
rational person would make admission against his interest unless
prompted by his conscience to tell the truth. "Deliberate and
voluntary confessions of guilt, if clearly proved are among the
most effectual proofs in law". (vide Taylor's Treatise on the
Law of Evidence Vol. I). However, before acting upon a
confession the court must be satisfied that it was freely and
voluntarily made. A confession by hope or promise of advantage,
reward or immunity or by force or by fear induced by violence or
threats of violence cannot constitute evidence against the maker
of confession. The confession should have been made with full
knowledge of the nature and consequences of the confession. If
any reasonable doubt is entertained by the court that these
ingredients are not satisfied, the court should eschew the
confession from consideration. So also the authority recording
the confession, be it a Magistrate or some other statutory
functionary at the pre-trial stage, must address himself to the
issue whether the accused has come forward to make the
confession in an atmosphere free from fear, duress or hope of
some advantage or reward induced by the persons in authority.
Recognizing the stark reality of the accused being enveloped in
a state of fear and panic, anxiety and despair while in police
custody, the Evidence Act has excluded the admissibility of a
confession made to the police officer.”
In a subsequent para of this relied judgment this Court further
observed:
“32. As to what should be the legal approach of the Court called
upon to convict a person primarily in the light of the
confession or a retracted confession has been succinctly
summarized in Bharat vs. State of U.P. [1971 (3) SCC 950].
Hidayatullah, C.J., speaking for a three-Judge Bench observed
thus:
Confessions can be acted upon if the court is satisfied that
they are voluntary and that they are true. The voluntary nature
of the confession depends upon whether there was any threat,
inducement or promise and its truth is judged in the context of
the entire prosecution case. The confession must fit into the
proved facts and not run counter to them. When the voluntary
character of the confession and its truth are accepted, it is
safe to rely on it. Indeed a confession, if it is voluntary and
true and not made under any inducement or threat or promise, is
the most patent piece of evidence against the maker. Retracted
confession, however, stands on a slightly different footing. As
the Privy Council once stated, in India it is the rule to find a
confession and to find it retracted later. A court may take into
account the retracted confession, but it must look for the
reasons for the making of the confession as well as for its
retraction, and must weigh the two to determine whether the
retraction affects the voluntary nature of the confession or
not. If the court is satisfied that it was retracted because of
an after-thought or advice, the retraction may not weigh with
the court if the general facts proved in the case and the tenor
of the confession as made and the circumstances of its making
and withdrawal warrant its user. All the same, the courts do not
act upon the retracted confession without finding assurance from
some other sources as to the guilt of the accused. Therefore, it
can be stated that a true confession made voluntarily may be
acted upon with slight evidence to corroborate it, but a
retracted confession requires the general assurance that the
retraction was an after-thought and that the earlier statement
was true. This was laid down by this Court in an earlier case
reported in Subramania Gounden v. The State of Madras(1958 SCR
428).”
26. We are of this considered opinion that the confessions of A-1 and A-6
are involuntary as they were taken in the immediate custody of high
security of CBI and a non-voluntary confession cannot form the basis
of conviction. We would like to emphasize on another observation made
by this Court in Ashrafkhan’s case (supra):
“41. We have held the conviction of the accused to have been
vitiated on account of non-compliance with Section 20-A(1) of
TADA and thus, it may be permissible in law to maintain the
conviction under the Arms Act and the Explosive Substances
Act but that shall only be possible when there are legally
admissible evidence to establish those charges. The
Designated Court has only relied on the confessions recorded
under TADA to convict the accused for offences under the Arms
Act and the Explosive Substances Act. In view of our finding
that their conviction is vitiated on account of non-compliance
of the mandatory requirement of prior approval under Section 20-
A(1) of TADA, the confessions recorded cannot be looked into
to establish the guilt under the aforesaid Acts. Hence, the
conviction of the accused under Sections 7 and 25(1-A) of the
Arms Act and Sections 4, 5 and 6 of the Explosive Substances Act
cannot also be allowed to stand.”
27. We would also like to recapitulate observation of this Court in
Ashrafkhan’s case (supra) which reads as follows:
“44. The facts of the case might induce mournful reflection how
an attempt by the investigating agency charged with the duty of
preventing terrorism and securing conviction has been frustrated
by what is popularly called a technical error. We emphasize and
deem it necessary to repeat that the gravity of the evil to the
community from terrorism can never furnish an adequate reason
for invading the personal liberty, except in accordance with the
procedure established by the Constitution and the laws.”
28. In the light of the judgments cited above and the material on record,
we have no hesitation in holding that whole proceedings in the present
case were vitiated. Therefore, the order of conviction and sentence
passed by the Designated Court is hereby quashed and set-aside. The
appellants herein be released forthwith, if not required in any other
case.
29. In the result, the appeals filed by the accused-appellants are,
accordingly, allowed.
. . . . . . . . . . . . . . . . . .
. . .J
(Pinaki Chandra Ghose)
….. . . . . . . . . . . . . .
. . . . . J
(Rohinton Fali Nariman)
New Delhi;
April 27, 2017.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.498 of 2012
SEENI NAINAR MOHAMMED
...APPELLANT(S)
:VERSUS:
STATE REP. BY DEPUTY SUPERINTENDENT
OF POLICE
...RESPONDENT(S)
With
CRIMINAL APPEAL NO.867 of 2012
SHAHUL HAMEED & ORS.
...APPELLANT(S)
:VERSUS:
STATE REP. BY DEPUTY SUPERINTENDENT
OF POLICE ...RESPONDENT(S)
J U D G M E N T
Pinaki Chandra Ghose, J.
1. These two appeals are directed against the judgment and order dated
8th September, 2011 passed by the Court of Designated Judge for TADA
Cases, Tirunelveli, in TADA Case No.1/1997, whereby the learned
Designated Judge found the appellants herein guilty for offences
punishable under Section 120(B) read with Sections 302, 147, 148 & 149
of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and
Sections 3(2), 3(3) & 3(4) of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 ( for short “TADA”) and sentenced them to life
imprisonment.
2. The facts of the case have been elaborately discussed by the learned
Special Judge of the Designated Court for adjudication of TADA cases.
We need not, therefore, recapitulate the entire factual backdrop in
which the appellants were tried, found guilty and sentenced, excepting
where it is absolutely necessary to do so. There are six accused in
this case, namely, Sahul Hameed (A-1), Raja Hussain (A-2), Zubeir (A-
3), Zakir Hussain (A-4), Azeez (A-5) and Seeni Nainar Mohammed (A-6).
On 10th October, 1994, at about 06:30 a.m., A-1 to A-6 in pursuance of
the conspiracy hatched amongst them, went to the house of one
Rajagopalan (since deceased), who was President of Hindu Munnani
Association, with a motive to kill him. A day before the incident, A-
6 Seeni Nainar Mohammed had advised his brother Raja Hussain (A-2) to
meet him after completing the task of murdering Rajagopalan. When
Rajagopalan, after taking the newspapers from a newspaper sub-agent
Saravanam (PW-3), was going through the newspapers facing East at his
house, accused persons came from left hand side of Rajagopalan and
while A-1 caught hold of the neck of Rajagopalan from behind, A-3 and
A-4 took out knives and stabbed on his stomach. A-5 showing a sickle
threatened the public to run away and repeatedly attacked the said
Rajagopalan and thereafter they ran away towards west. On hearing the
noise, PW-1 Krishnaveni wife of the deceased came out of the house and
saw that her husband was lying down in a pool of blood. The occurrence
was witnessed by PW-1, PW-3, PW-4, PW-5 & PW-6. PW-1 informed about
the incident to the Market Police Station on telephone. Upon receiving
the information, PW-2 Inspector of Market Police Station rushed to the
spot and enquired from PW-1 who gave a written complaint to him.
3. Law was set into motion when PW-2 Stalin Michael, Inspector registered
the FIR Ext.P2 at 07:30 a.m. at Police Station Thilagar Ground,
Madurai District, under Sections 147, 148 and 302 of IPC in Crime
No.2490/1994. On the orders of DGP, the case was transferred from
local Police to CBCID and Shri Rajagopal, DSP (PW-24) took up the
investigation, went to the place of occurrence, examined the witnesses
and recorded their statements. Since PW-24 was holding
additional charge, he could not accomplish the task of investigation
and further investigation was taken up by Shri Jones, DSP (PW-30) and
after receiving prior approval from Superintendent of Police (PW-26),
registered the case under TADA. The records of the case were
transferred to the learned Designated Judge for TADA Cases and after
trial, the learned Designated Judge vide his judgment and order dated
08.09.2011 convicted all the accused in TADA Case No.1/1997 holding
that the prosecution has proved the first charge as against A-1 to A-
6. A-1 to A-5 were convicted under Section 3(2) read with Section 3(1)
of TADA read with Section 149 of IPC and sentenced to undergo life
imprisonment and to pay a fine of Rs.10,000/- each, and in default of
payment of fine, to undergo rigorous imprisonment for 1 year. However,
A-6 was convicted under Section 3(2) read with 3(1) of the TADA read
with Section 109 of IPC and under Section 3(4) of TADA and sentenced
to undergo life imprisonment and also to pay a fine of Rs.5,000/- and
in default of payment of fine, to undergo rigorous imprisonment for 1
year. However, all the sentences were directed to run concurrently.
Hence, the present appeals under Section 19 of TADA read with the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,
1970. Criminal Appeal No.498 of 2012 has been filed by A-6 while
Criminal Appeal No.867 of 2012 has been filed by A-1 to A-5.
4. We have carefully perused the impugned judgment and the material on
record and have also meticulously examined the testimonies of the
witnesses and other relevant evidence produced. Since the appellate
jurisdiction against any judgment passed by the Designated Court for
TADA cases lies with this Court only, we would consider the peculiar
circumstances of the present case to appropriately discuss every
relevant issue in question before us.
5. The very first issue which falls for our determination as pressed by
the learned senior counsel for the accused-appellants herein is
whether the approval in the present case can be said to be sufficient
compliance of the provisions of Section 20-A of TADA which 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.”
6. We have considered the fact that after the investigation, PW-30 DSP of
CBI approached PW-28 IG on 13th September, 1997 seeking sanction for
prosecution against A-1 to A-5 for offences under TADA Act. PW-28 on
16th September, 1997 granted the sanction (Ext.P-46) for prosecution
against A-1 to A-5 under TADA Act. It is stated by PW-28, IG that he
perused all the records placed by PW-30, along with requisition,
seeking for sanction containing the Inquest Report, Post-mortem
Report, 164 Statements of eye-witnesses and 161 Statements of other
witnesses, confession of A-1 and other materials and granted sanction
for prosecution against A-1 to A-5 under Section 3 of the TADA Act,
1987. It is also to be noted that in the course of investigation, the
confession of A-6 (Ext.P-43) dated 25.10.1994 was recorded by PW-26
SP, on the basis of the requisition given by PW-24 DSP, CBCID. The
case was subsequently transferred to CBI in July, 1996 and on
transfer, PW-30 CBI, DSP took up the investigation on 17.07.1996.
7. We have also noted that the sanction (Ext.P-46) granted on 16.09.1997
by PW-28 IG, referred to A-1’s confession (Ext.P-41) only recorded on
3.04.1997 but it does not refer to the confession of A-6 (Ext.P-43)
which was recorded on 25.10.1994. This was the only document which
revealed that A-6 addressed and advised A-1 to A-5 to commit the
murder of Rajagopalan, with intention to create terror in the minds of
public at large in Tamil Nadu. Therefore, the confession of A-6 (Ext.P-
43) is the only document which refers to the intention to create
terror as required under Section 3 of TADA Act. No other material or
no other witness speaks about the intention of the accused to commit
the murder with intention to create terror in the minds of public
which is main ingredient for invoking the TADA Act. Unfortunately, the
said document (Ext.P-41) has neither been referred to nor relied upon
by the Sanctioning Authority in the sanction order (Ext.P-46).
8. We have also noticed that the confession of A-1 (Ext.P-41) is totally
contradictory to the confession of A-6 (Ext.P43). It appears from the
facts that the Investigating Officer suppressed the material document
by not placing the same before the Sanctioning Authority. We have
further noticed that the TADA Court convicted the accused under the
TADA Act on the basis of confession of A-6 and not on the basis of any
other material. The other point which we have noted is that the
Sanctioning Authority (PW-28) admitted in his deposition that he did
not know Tamil and did not go through the entire records which were in
Tamil. Therefore, it is clear that the Sanctioning Authority has not
applied his mind to the records in its entirety and granted sanction
only after considering certain documents which were in English.
Therefore, we have to accept the contention of the appellants that the
Sanctioning Authority without perusing the relevant documents issued
the order of sanction and thereby it has to be accepted that the
sanction was granted mechanically.
9. The confessions of A-1 and A-6 are not voluntary as has been evidenced
by us from the materials since those confessions were not recorded in
a free atmosphere thereby it violated the directions given by this
Court. Further, the said confessions could not be relied upon as they
contradicted with each other.
10. We, without hesitation, are of this considered opinion that the answer
to this question is in the negative for settled principle of non-
application of mind by sanctioning authority while granting approval
for taking cognizance under TADA Act and undermining the objective of
the Act. This relevant provision was inserted by Act 43 of 1993 which
came into force on 23.05.1993 which is prior to the date of commission
of the offence i.e., 10.10.1994 disputed in instant appeal which makes
it crystal clear that Section 20-A(1) of TADA must be construed by
indicating that prior approval from the competent authority is
mandatory for taking cognizance of offence punishable under TADA.
However, it shall always be borne in mind by the sanctioning authority
that application of such provisions which forms part of penal statues
requires strict interpretation and failure to comply with the
mandatory requirement of sanction before cognizance is taken, as
mentioned in TADA, may vitiate the entire proceedings in the case. In
the recent past, it has been observed by this Court in respect of
Section 20-A of TADA in the case of Hussein Ghadially @ M.H.G.A Shaikh
& Ors. Vs. State of Gujarat, (2014) 8 SCC 425, at para 21, as follows:
“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.”
11. The most important factor for determination before the sanctioning
authority was that the acts done by a person must fall within the
ambit of terrorist activity and the accused must be a terrorist as
defined in Section 3(1). This position of law was discussed by this
Court in the case of Kalpnath Rai Vs. State (Through CBI), (1997) 8
SCC 732, as follows:
“34. Sub-section 3(5) was inserted in TADA by Act 43 of 1993
which came into force on 23-5-1993. Under Article 20(1) of the
Constitution ‘no person shall be convicted of any offence except
for violation of a law in force at the time of the commission of
the act charged as an offence’. So it is not enough that one was
member of a terrorists’ gang before 23-5-1993.
35. There are two postulates in Sub-section (5). First is that
the accused should have been a member of ‘a terrorists gang’ or
‘terrorists organisation’ after 23.5.1993. Second is that the
said gang or organisation should have involved in terrorist acts
subsequent to 23.5.1993. Unless both postulates exist
together Section 3(5) cannot be used against any person.
36. ‘Terrorist act’ is defined in Section 2(h) as having the
meaning assigned to it in Section 3(1). That sub-section reads
thus:
‘3(1) Whoever with intent to overawe the Government as by law
established or to strike terror in 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 fire-arms 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 essential to the life of the
community, or detains any person and threatens to kill or injure
such person in order to compel the Government or any other
person to do or abstain from doing any act, commits a terrorist
act.’
37. The requirements of the sub-section are: (1) the person
should have done an act in such a manner as to cause, or as is
likely to cause death or injuries to any person or damage to any
property, or disruption of any supplies; (2) doing of such act
should have been by using bombs, dynamites etc.; (3) or
alternatively he should have detained any person and threatened
to kill or injure him in order to compel the Government or any
other person to do or abstain from doing anything.”
12. Mr. Karpaga Vinayagam, learned senior counsel appearing for the
appellants submitted that the Prior Approval for investigating the
case under TADA, granted by PW-26 in the present case, is bad in law
as the same has been granted by PW-26 mechanically, without going
through the records and without recording his satisfaction. A careful
perusal of the requisition given by PW-24 to PW-26 for seeking prior
approval (Ext.P-35) reveals that a single murder on 10.10.1994 was
mentioned therein but no act of murder with intent to create terror
and panic in the minds of public, which is the main ingredient of the
offence under TADA Act, was mentioned. The incident prior to this
murder relating to objections raised by Hindus on the construction of
mosque near Hindu temple in Madurai was mentioned in the deposition of
PW-24, which could nowhere be referred or connected to act of murder.
Admittedly, as per his deposition, till 19.10.1994, none gave any
complaint that there was any commotion or violence at the place of
occurrence, resultantly connecting the case under IPC to be a prima
facie case under TADA leading to seeking prior approval, which if
granted, would be bad in the eyes of law.
13. We have also noticed that the Sanctioning Authority under Section 20-
A(2) of TADA, i.e. PW28 - IG, CBI in present case, had granted
permission to file a case under TADA on 16.09.1997 vide permission
order being Ext.P.46 and in his deposition PW-28 stated that “… I
verified the TADA Rules very carefully. Upon perusing the said
documents as I was satisfied that there are ample evidences to file a
case against A1 to A5, namely Shahul Hameed, Raja Hussain, Subair,
Zahir Hussain and Aziz alias Abdul Aziz under the TADA Act, I issued
orders granting permission to file a case under section 3 of the TADA
Act…”. We may straightaway observe that the sanctioning authority did
not have necessary material before him to show that the alleged act of
causing death of the deceased was done with intent to create terror in
the minds of public at large. Had there been any such terror in the
minds of people, then as an aftermath of the death of the deceased
there would have been an adverse effect on the harmony amongst
different sections of people in the vicinity of the place of incident.
However, no such incident of striking terror in the minds of people or
adverse effect on the harmony amongst any section of society was
reported. The alleged act of causing death of an individual was only
an attack by the accused-appellants with weapons on the deceased who
later succumbed to the injuries.
14. We have noticed that sanction under Section 20-A(2) of TADA in respect
of A-6 was granted by PW-29 on 16.09.1998, which was delayed due to
time consumed in the investigation against him. In our considered
opinion, the same is also unlawful for the reasons mentioned above.
Furthermore, cross examination of PW-30 is also reflecting the non-
application of mind when after specifically stating about relationship
of the accused-appellants herein with Alumma organization, it was
deposed by him that he did not collect any evidence or document to
show that accused belonged to that organization. In our considered
opinion, the said sanctions, which have not been proved by the
depositions of these witnesses, are not as per the mandate of law laid
down by this Court in the case of State of Maharashtra Vs. Mahesh G.
Jain, (2013) 8 SCC 119, and Kootha Perumal Vs. State, (2011) 1 SCC
491.
15. After going through the records, it appears to us that the accused-
appellants had grudge in their minds because the deceased used to
organize Vinayaga Chaturthi Celebrations in various places and
criticize Muslims and Islam which includes a public notice by the
deceased wherein he had demanded protection of Madurai City which,
according to the deceased, was being used by Pakistan as the base for
spying activity. The issuance of this public notice was proved by PW-
11, A.R. Kalidasan. Instances of pelting stones by the appellants
herein were proved by the evidence of PW-10, as corroborated by the
deposition of PW-13.
16. Mr. P. K. Dey, learned counsel for respondent-CBI has drawn our
attention to the decision of this Court in Kartar Singh Vs State of
Punjab, 1994 (3) SCC 569, wherein at para 451, this Court observed:
“Mere possession of arms and ammunition specified in the section
has been made substantive offence. It is much serious in nature
and graver in impact as it results in prosecution of a man
irrespective of his association or connection with a terrorist
or terrorist activity. A comparison of this section with
Sections 3 and 4 demonstrates the arbitrariness inherent in it.
Section 3 operates when a person not only intends to overawe the
Government or create terror in people etc. but he uses the arms
and ammunitions which results in death or is likely to cause
death and damage to property etc. In other words, a person
becomes a terrorist or is guilty of terrorist activity when
intention, action and consequence all the three ingredients are
found to exist. Similarly Section 4 applies to those activities
which are directed towards disrupting sovereignty and
territorial integrity of the country. Thus a terrorist or a
disruptionist and a person possessing any of the arms and
ammunition mentioned in the section have been placed on a par.
In Sections 3 and 4 the offence arises on the act having been
done whereas in Section 5 it is founded only on possession. Even
under sub-section (3) of Section 3 a person is liable to be
prosecuted for abetting the offence if he assists or
communicates with a terrorist. Sub-sections (5) and (6) inserted
by Act 43 of 1993 to Section 3 also require that a person can be
prosecuted only if he is found to be a member of a terrorist
gang or terrorist organisation etc. The Act, therefore,
visualises prosecution of the terrorist or disruptionist for
offences under Sections 3 and 4 and of others only if they are
associated or related with it. That is in keeping with the
objective of the Act. The legislation has been upheld as the
legislature is competent to enact in respect of a crime which is
not otherwise covered by any Entry in List II of the Seventh
Schedule. The definition of the crime, as has been discussed
earlier, is contained in Sections 3 and 4 of the Act and it is
true that while defining the crime it is open to the legislature
to make provision which may serve the objective of the
legislation and from a wider point of view one may say that
possession of such arms, the use of which may lead to terrorist
activity, should be taken as one of the offences as a preventive
or deterrent provision. Yet there must be some inter-relation
between the two, howsoever, remote it may be. The harshness of
the provisions is apparent as all those provisions of the Act
for prosecuting a person including forfeiture of property,
denial of bail etc., are applicable to a person accused of
possessing any arms and ammunition as one who is charged for an
offence under Sections 3 and 4 of the Act. It is no doubt true
that no one has justification to have such arms and ammunitions
as are mentioned in Section 5, but unjustifiable possession does
not make a person a terrorist or disruptionist. Even under
Ireland Emergency Provisions Act, 1978 on which great reliance
was placed by learned Additional Solicitor General there is no
such harsh provision like Section 5. Since both the substantive
and procedural law apply to a terrorist and disruptionist or a
terrorist act or a disruptive act, it is necessary, in my
opinion, that this section if it has to be immune from attack of
arbitrariness, may be invoked only if there is some material to
show that the person who was possessed of the arms intended it
to be used for terrorist or disruptionist activity or it was an
arm and ammunition which in fact was used.”
(emphasis supplied)
17. He further relied upon judgment of this Court in the case of Girdhari
Parmanand Vadhava Vs. State of Maharashtra, (1996) 11 SCC 179, wherein
it was enunciated that a crime even if perpetrated with extreme
brutality may not constitute “terrorist activity” within the meaning
of Section 3(1) of TADA. For constituting “terrorist activity”, the
activity must be intended to strike terror in people or a section of
the people or bring about other consequences referred to in Section
3(1). Terrorist activity is not confined to unlawful activity or crime
committed against an individual or individuals but it aims at bringing
about terror in the minds of people or section of people disturbing
public order, public peace and tranquillity, social and communal
harmony, disturbing or destabilising public administration and
threatening security and integrity of the country.
18. Therefore, it will be very dangerous for us, in the absence of
legislative attempt, to provide with an opinion to define whether any
activity falls within the definition of terrorist activity or not.
After all the legislative intent behind enactment of any statute shall
prevail. This Court had opined in the words of Justice Dr. A. S. Anand
in Hitendra Vishnu Thakur & Ors. Vs. State Of Maharashtra & Ors.,
(1994) 4 SCC 602, that
“7. 'Terrorism' is one of the manifestations of increased
lawlessness and cult of violence. Violence and crime constitute
a threat to an established order and are a revolt against 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
law enforcement agencies to tackle it under the ordinary penal
law. Experience has shown us that 'terrorism' is generally an
attempt to acquire or maintain power or control by intimidation
and causing fear and helplessness in the minds of the people at
large or any section thereof and is a totally abnormal
phenomenon. What distinguishes 'terrorism' from other forms of
violence, therefore, appears to be the deliberate and systematic
use of coercive intimidation. More often than not, a hardened
criminal today takes advantage of the situation and by wearing
the cloak of 'terrorism', aims to achieve for himself
acceptability and respectability in the society because
unfortunately in the States affected by militancy, a 'terrorist'
is projected as a hero by his group and often even by the
misguided youth. It is therefore, essential to treat such a
criminal and deal with him differently than an ordinary criminal
capable of being tried by the ordinary courts under the penal
law of the land. Even though the crime committed by a
'terrorist' and an ordinary criminal would be overlapping to an
extent but then it is not the intention of the Legislature that
every criminal should be tried under TADA, where the fall out of
his activity does not extend beyond the normal frontiers of the
ordinary criminal activity. Every 'terrorist' may be a criminal
but every criminal cannot be given the label of a 'terrorist'
only to set in motion the more stringent provisions of TADA. The
criminal activity in order to invoke TADA must be committed with
the requisite intention as contemplated by Section 3(1) of the
Act by use of such weapons as have been enumerated in Section
3(1) and which cause or are likely to result in the offences as
mentioned in the said section.”
19. We would, therefore, make it abundantly clear that these relied cases
do not help the respondent to make a case under the provisions of TADA
in the absence of intention to cause terror in the minds of people or
strike on them with terror. Therefore, in our considered opinion, the
approvals granted by the Superintendent of Police (PW-26) and the IG,
CBI (PW-28), in the facts and circumstances of the present case, were
completely invalid lacking compliance of the requirements prescribed
under Section 20-A of TADA. Albeit, it can rightly be opined that
prior approvals were bad in law in the present case, nevertheless, it
cannot be said that the entire proceedings against the accused-
appellants under TADA, were vitiated in the light of the judgment in
the case of Ashrafkhan alias Babu Munnekhan Pathan & Anr. Vs. State of
Guajrat, (2012) 11 SCC 606, wherein this Court observed:
“33. Now we proceed to consider the submission advanced by the
State that non-compliance with Section 20-A(1) i.e. absence of
approval of the District Superintendent of Police, is a curable
defect under Section 465 of the Code. We do not have the
slightest hesitation in holding that Section 465 of the Code
shall be attracted in the trial of an offence by the Designated
Court under TADA. This would be evident from Section 14 (3) of
TADA which reads as follows:
‘14.Procedure and powers of Designated Courts.-
(1)-(2) …
(3) Subject to the other provisions of this Act, a
Designated Court shall, for the purpose of trial of any
offence, have all the powers of a Court of Session and
shall try such offence as if it were a Court of Session so
far as may be in accordance with the procedure prescribed
in the Code for the trial before a Court of Session.’
34. From a plain reading of the aforesaid provision it is
evident that for the purpose of trial Designated Court is a
Court of Session. It has all the powers of a Court of Session
and while trying the case under TADA, the Designated Court has
to follow the procedure prescribed in the Code for the trial
before a Court of Session. Section 465 of the Code, which falls
in Chapter 35, covers cases triable by a Court of Session also.
Hence, the prosecution can take shelter behind Section 465 of
the Code. But Section 465 of the Code shall not be a
panacea for all error, omission or irregularity. Omission
to grant prior approval for registration of the case under
TADA by the Superintendent of Police is not the kind of
omission which is covered under Section 465 of the Code. It is
a defect which goes to the root of the matter and it is not one
of the curable defects.”
20. We are therefore of this considered opinion that as a result of
illegal sanction order the criminal proceedings for prosecution under
the TADA Act are vitiated entirely. Suffice it to say that Learned
Court under the TADA Act has grossly erred in taking cognizance of the
case.
21. Mr. M. Karpaga Vinayagam, learned senior counsel appearing for the
appellants advanced three main submissions, apart from challenging the
sanction granted by the competent authority which has already been
discussed in earlier paragraphs. He submitted that the eye-witnesses
and PW-7 are not reliable. He further submitted that A-1’s confession
is not voluntary and there has been non-examination of material
witnesses. Concluding with his arguments he would say that the
Identification Parade is a farce and that there are infirmities in the
depositions of the Investigating Officers being PW-2, PW-24 & PW-30.
22. We have reappreciated the evidence on record and considered the
arguments advanced by Mr. P.K. Dey, learned counsel appearing for the
respondent-CBI. Though we find little difficulty in accepting the view
taken by the learned Designated Court in its entirety, as it arises
from several notable facts, it is not and cannot be disputed that the
deceased was killed at the entrance of his house. The post-mortem
report being Ext.P-14, which was duly proved by PW15 - Dr.
Thiagarajan, also mentioned the cause of death being shock and
haemorrhage due to multiple cut and stab injures sustained by the
deceased somewhere near 5 O’clock in the morning on 10.10.1994. We
have noticed that PW-1 was never called for identification of the
accused-appellants.
23. Apropos question of reliability of the test identification parade in
the present case, when admittedly accused were already seen through
newspaper, we emphasise on few judgments of this Court before coming
to the answer to this question. This Court in the case of Suresh
Chandra Bahri Vs. State of Bihar, 1995 Supp (1) SCC 80, has held:
“ 78….From this point of view it is a matter of great importance
both for the investigating agency and for the accused and a
fortiori for the proper administration of justice that such
identification is held without avoidable and unreasonable delay
after the arrest of the accused and that all the necessary
precautions and safeguards were effectively taken so that the
investigation proceeds on correct lines for punishing the real
culprit. It would, in addition, be fair to the witness concerned
also who was a stranger to the accused because in that event the
chances of his memory fading away are reduced and he is required
to identify the alleged culprit at the earliest possible
opportunity after the occurrence. It is in adopting this course
alone that justice and fair play can be assured both to the
accused as well as to the prosecution. But the position may be
different when the accused or a culprit who stands trial had
been seen not once but for quite a number of times at different
point of time and places which fact may do away with the
necessity of TI parade.”
24. We accept the contention of the learned senior counsel for the
appellants that the test identification parade was a farce as after
the pictures of the accused had been published in the newspaper, the
identification parade which is a very weak piece of evidence should
not have been conducted.
25. Before concluding this judgment, it would be necessary to consider the
most important factor to which our attention was invited by the
learned counsel for the respondent, i.e., confession of accused and
unearthing of conspiracy and recovery of evidences thereafter. Having
regard to observation recorded so far, emphasis on the judgment
delivered by this Court in State (NCT of Delhi) Vs. Navjot Sandhu,
(2005) 11 SCC 600, is necessary wherein it was observed:
“28. In the Privy Council decision of Pakala Narayana Swami vs.
Emperor, AIR 1939 PC 47, Lord Atkin elucidated the meaning and
purport of the expression 'confession' in the following words:
"[A] confession must either admit in terms the offence, or at
any rate substantially all the facts which constitute the
offence. An admission of a gravely incriminating fact, even a
conclusively incriminating fact is not of itself a confession…"
29. Confessions are considered highly reliable because no
rational person would make admission against his interest unless
prompted by his conscience to tell the truth. "Deliberate and
voluntary confessions of guilt, if clearly proved are among the
most effectual proofs in law". (vide Taylor's Treatise on the
Law of Evidence Vol. I). However, before acting upon a
confession the court must be satisfied that it was freely and
voluntarily made. A confession by hope or promise of advantage,
reward or immunity or by force or by fear induced by violence or
threats of violence cannot constitute evidence against the maker
of confession. The confession should have been made with full
knowledge of the nature and consequences of the confession. If
any reasonable doubt is entertained by the court that these
ingredients are not satisfied, the court should eschew the
confession from consideration. So also the authority recording
the confession, be it a Magistrate or some other statutory
functionary at the pre-trial stage, must address himself to the
issue whether the accused has come forward to make the
confession in an atmosphere free from fear, duress or hope of
some advantage or reward induced by the persons in authority.
Recognizing the stark reality of the accused being enveloped in
a state of fear and panic, anxiety and despair while in police
custody, the Evidence Act has excluded the admissibility of a
confession made to the police officer.”
In a subsequent para of this relied judgment this Court further
observed:
“32. As to what should be the legal approach of the Court called
upon to convict a person primarily in the light of the
confession or a retracted confession has been succinctly
summarized in Bharat vs. State of U.P. [1971 (3) SCC 950].
Hidayatullah, C.J., speaking for a three-Judge Bench observed
thus:
Confessions can be acted upon if the court is satisfied that
they are voluntary and that they are true. The voluntary nature
of the confession depends upon whether there was any threat,
inducement or promise and its truth is judged in the context of
the entire prosecution case. The confession must fit into the
proved facts and not run counter to them. When the voluntary
character of the confession and its truth are accepted, it is
safe to rely on it. Indeed a confession, if it is voluntary and
true and not made under any inducement or threat or promise, is
the most patent piece of evidence against the maker. Retracted
confession, however, stands on a slightly different footing. As
the Privy Council once stated, in India it is the rule to find a
confession and to find it retracted later. A court may take into
account the retracted confession, but it must look for the
reasons for the making of the confession as well as for its
retraction, and must weigh the two to determine whether the
retraction affects the voluntary nature of the confession or
not. If the court is satisfied that it was retracted because of
an after-thought or advice, the retraction may not weigh with
the court if the general facts proved in the case and the tenor
of the confession as made and the circumstances of its making
and withdrawal warrant its user. All the same, the courts do not
act upon the retracted confession without finding assurance from
some other sources as to the guilt of the accused. Therefore, it
can be stated that a true confession made voluntarily may be
acted upon with slight evidence to corroborate it, but a
retracted confession requires the general assurance that the
retraction was an after-thought and that the earlier statement
was true. This was laid down by this Court in an earlier case
reported in Subramania Gounden v. The State of Madras(1958 SCR
428).”
26. We are of this considered opinion that the confessions of A-1 and A-6
are involuntary as they were taken in the immediate custody of high
security of CBI and a non-voluntary confession cannot form the basis
of conviction. We would like to emphasize on another observation made
by this Court in Ashrafkhan’s case (supra):
“41. We have held the conviction of the accused to have been
vitiated on account of non-compliance with Section 20-A(1) of
TADA and thus, it may be permissible in law to maintain the
conviction under the Arms Act and the Explosive Substances
Act but that shall only be possible when there are legally
admissible evidence to establish those charges. The
Designated Court has only relied on the confessions recorded
under TADA to convict the accused for offences under the Arms
Act and the Explosive Substances Act. In view of our finding
that their conviction is vitiated on account of non-compliance
of the mandatory requirement of prior approval under Section 20-
A(1) of TADA, the confessions recorded cannot be looked into
to establish the guilt under the aforesaid Acts. Hence, the
conviction of the accused under Sections 7 and 25(1-A) of the
Arms Act and Sections 4, 5 and 6 of the Explosive Substances Act
cannot also be allowed to stand.”
27. We would also like to recapitulate observation of this Court in
Ashrafkhan’s case (supra) which reads as follows:
“44. The facts of the case might induce mournful reflection how
an attempt by the investigating agency charged with the duty of
preventing terrorism and securing conviction has been frustrated
by what is popularly called a technical error. We emphasize and
deem it necessary to repeat that the gravity of the evil to the
community from terrorism can never furnish an adequate reason
for invading the personal liberty, except in accordance with the
procedure established by the Constitution and the laws.”
28. In the light of the judgments cited above and the material on record,
we have no hesitation in holding that whole proceedings in the present
case were vitiated. Therefore, the order of conviction and sentence
passed by the Designated Court is hereby quashed and set-aside. The
appellants herein be released forthwith, if not required in any other
case.
29. In the result, the appeals filed by the accused-appellants are,
accordingly, allowed.
. . . . . . . . . . . . . . . . . .
. . .J
(Pinaki Chandra Ghose)
….. . . . . . . . . . . . . .
. . . . . J
(Rohinton Fali Nariman)
New Delhi;
April 27, 2017.
