Topic :- Hitendra Vishnu Thakur vs State Of Maharashtra on 12 July, 1994
SUPREME COURT OF INDIA
BENCH: Anand, A.S. (J)
PETITIONER: HITENDRA VISHNU THAKUR
RESPONDENT: STATE OF MAHARASHTRA
Facts of the Case
The three meaningful questions which require our consideration are : (1) When can the provisions of Section 3(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the TADA) be attracted? (2) Is the 1993 Amendment, amending Section 167(2) of the Code of Criminal Procedure by modifying Section 20(4)(b) and adding a new provision as 20(4)(bb), applicable to the pending cases i.e. is it retrospective in operation? and (3) What is the true ambit and scope of Section 20(4) and Section 20(8) of TADA in the matter of grant of ball to an accused brought before the Designated Court and the factors which the Designated Court has to keep in view while dealing with an application for grant of bail under Section 20(4) and for grant of extension of time to the prosecution for further investigation under clause (bb) of Section 20(4) and incidentally whether the conditions contained in Section 20(8) TADA control the grant of bail under Section 20(4) of the Act also? We shall take up for consideration these questions in seriatim.
Contentions of petitioner
Learned counsel for the appellants submitted that even though the constitutional validity of Section 3 of TADA has been upheld by a Constitution Bench of this Court in Kartar Singh v. State of Punjabi, nonetheless keeping in view the stringent nature of the provisions of TADA the offence constituted by Section 3 of TADA must be the one which qualifies stricto sensu as a ‘terrorist act’ and unless the crime alleged against an accused can be classified as a ‘terrorist act’ in letter and in spirit, Section 3(1) of TADA has no application and an accused shall have to be tried under the ordinary penal law and in such a fact situation, it is a statutory obligation cast on the Designated Court to transfer the case from that court for its trial by the regular courts under the ordinary criminal law in view of the provisions of Section 18 of TADA. It is submitted that the Designated Court should not, without proper application of mind, charge-sheet or convict an accused under Section 3 of TADA simply because the investigating officer decides to include that section while filing the challan and that it is not open to the State to apply TADA to the ordinary problems arising out of disturbance of law and order or even to situations arising out of the disturbance of public order – a more serious type of crime alone would justify trial under TADA
Contentions of respondent
Shri K.T.S. Tulsi, the learned Additional Solicitor General and Shri Madhava Reddy, Senior Advocate, appearing for the State on the other hand submitted that since the constitutional validity of Section 3 of TADA has been upheld by a Constitution Bench in Kartar Singh case’, it is not permissible for this Bench to re-examine its validity.on the basis of some argument which might have been raised before the Constitution Bench but was not so raised. It was pointed out that the three grounds of challenge which were raised before the Constitution Bench to question the legality and the efficaciousness of Sections 3 and 4 of TADA viz. : (SCC p. 650, para 140) “(1) These two sections cover the acts which constitute offences under ordinary laws like the Indian Penal Code, Arms Act and Explosive Substances Act;
(2) There is no guiding principle laid down when the executive can proceed under the ordinary laws or under this impugned Act of 1987; and (3) This Act and the Sections 3 and 4 thereof should be struck down on the principle laid down in State of W.B. v. Anwar Ali Sarkar2 and followed in many other cases including A.R. Antulay v. Union of India3.” were considered by the Constitution Bench and while upholding the vires and validity of Sections 3 and 4 of TADA, all the three grounds of challenge were negatived and therefore after the Constitution Bench judgment, it is not permissible to read within the provisions of Section 3 anything more than 1 (1994) 3 SCC 569: 1994 SCC (Cri) 899: JT (1994) 2 SC 423: 1994 (1) Apex Decisions SC (Cri) 413 2 1952 SCR 284: AIR 1952 SC 75 : 1952 Cri LJ 5 10 3 (1988) 2 SCC 764 what the Legislature has specifically provided therein. It was urged that to combat the menace of terrorism, it is necessary that restrictive interpretation should not be placed on the provisions of Section 3 of TADA and simply because the offences under Section 3 of TADA and under the ordinary penal law overlap, the court should not lay down as a general proposition that Section 3 of TADA is inapplicable in all such situations where the offences overlap.
Legal Provisions
- Section 3(1) of TADA ACT
- Section 167(2) of CrPC
- Section 20(4) of TADA Act
Legal Reasoning
Section 3 (1) of TADA Act
(1) Whoever with intent to overawe the Government as by law established or to strike terror in the 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 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.
Section 167(2) of CrPC
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-
(a) 1 the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. 1 Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;]. 2 Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.]
Section 20 (4) of TADA
Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act or any rule made thereunder subject to the modifications that,-
a. the reference in sub-section (1) thereof to “Judicial Magistrate” shall be construed as a reference to Judicial Magistrate or Executive Magistrate or Special Executive Magistrate;
b . the reference in sub-section (2) thereof to “fifteen days,” “ninety days” and “sixty days,” wherever they occur, shall be construed as references to “sixty days.” [one hundred and eighty days] and 8[one hundred and eighty days], respectively; and
(bb)sub-section (2-A) thereof shall be deemed to have been omitted.
[(bbb) in sub-section (2), after the proviso, the following proviso shall be inserted, namely:-
“Provided further that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Designated Court shall extend the said period up to one year, on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.]
Judgement
The application, extracted above, does not fall within the parameters of clause (bb) of sub-section (4) of Section 20 of TADA for the reasons which we have already given while dealing with the ambit and scope of clause (bb) of sub-section (4) of Section 20 of TADA. The Designated Court erred in treating the application of the investigating officer as the report of the Public Prosecutor. The mere identification by the Public Prosecutor of the deponent of the affidavit (investigating officer) could not justify the application to be treated as a report of the Public Prosecutor. Since there was no report filed by the Public Prosecutor before the Designated Court, the Designated Court faulted in granting extension “of compulsory custody” on the application of the investigating officer. That apart, the ground on which extension was sought, as emerging from para 4 of the application (supra) did not justify the grant of permission for the extended period in custody even on the report of the Public Prosecutor. Since it is admitted in the said paragraph that the investigation against Accused 1 to 17 is ‘al- ready completed’ but that the challan could not be filed “for some administrative difficulties”, it is obvious that the ground for seeking extension of the period of compulsory detention of the appellant was extraneous to the grounds contemplated by clause (bb) of Section 20(4) of TADA. The Designated Court, therefore, fell in error in granting the extension to the prosecution under the said provision. The consequence of the erroneous extension of time would have entitled the appellant to be released on bail under Section 20(4) of TADA read with Section 167(2) of the Code for the default of the investigating agency without in any way affecting the continuation of the investigation but we find that the appellants, in the peculiar facts and circumstances of the case, cannot derive any benefit on that ac- count because before the Designated Court the appellants did not press their bail applications and requested the Designated Court for consideration of the bail applications after the charge-sheet is filed implying thereby that the appellants did not “offer” to be released on bail. The proviso to Sub-section (2) of Section 167 of the Code read with Section 20(4)(b) of TADA expressly postulates that if the investigation is not completed within the prescribed period and the challan filed in court, the Designated Court shall release the accused on bail if “he is prepared to and does furnish bail”. By not pressing their bail applications, the appellants cannot be said to be prepared to be released on bail by furnishing the bail. Why the appellants chose not to press their applications is not for us to conjecturise? The argument of learned counsel for the respondent that being of the opinion that extension under clause (b) was likely to be granted the appellants chose not to press their applications cannot be dismissed as a wholly fanciful argument. In any event, the fact remains that for the reasons best known to them, the appellants did not press and prosecute their bail applications before the Designated Court when the same were taken up for con- sideration on merits. Mr Bhagat, learned Senior Counsel appearing for the appellant, however, submitted that the observations of the Designated Court to the effect that “whereas the accused Shantilal Prabhubhai Patel and Ramesh Prabhubhai Patel requested this Court to consider their bail applications on merits after the charge-sheet is filed” were not correct and that no such concession was made on behalf of the appellant. We have al- ready rejected a similar argument while dealing with Criminal Appeal No. 739 of 1993. In these appeals also the appellants did not approach the Designated Court for correction of the record. Even in the grounds of ap- peal before us it was not asserted that the concession had been wrongly at- tributed to the appellants. The submission is clearly an afterthought and an attempt to get out of a situation of the appellants’ own making. We, therefore, reject the argument as we find it wholly unacceptable. We are also not persuaded to accept the submission of Mr Bhagat that the reference to the application of the appellant which was not pressed before the Designated Court was to a different application and not to the bail applications filed under Section 20(4) of the Act read with Section 167(2) of the Code. The submission defies logic and is apparently an argument of despair. The two Bail Application Nos. 195 and 196 of 1993 which were being considered and dealt with by the Designated Court were the applications filed by the appellants under Section 20(4) of TADA read with Section 167(2) of the Code and it is futile to contend that the Designated Court while considering those applications recorded the concession with regard to some other application which was not under consideration of the court. The submission of Mr Bhagat is without any basis and is unacceptable. Mr Bhagat lastly submitted that the Designated Court should have, keeping in view the mandate of Section 167(2) of the Code, admitted the appellants to bail because of the default of the prosecution ignoring the so-called concession. We cannot agree. Whereas the period of compulsory custody has been fixed by the Legislature, there is nothing in the Act which may introduce a stage of compulsory bail if the applicant chooses not to be released on bail or furnish the bail bonds. Since the appellants did not prosecute and press their bail applications for release on bail under Section 20(4) of the Act read with Section 167(2) of the Code before the Designated Court the rejection of their Bail Application Nos. 195 and 196 of 1993 by the Designated Court cannot be found fault with at all. In the facts and circumstances of the case, the impugned order of the Designated Court rejecting the bail ap- plications does not merit any interference. Both the appeals have no merit and are hereby dismissed. order of the Designated Court, in the peculiar facts and circumstances of these appeals, should not be construed as any expression of opinion on the merits of the case. It has been submitted before us that applications under section 20(8) of TADA have already been filed and are pending disposal be- fore the Designated Court. The Designated Court shall deal with those ap- plications on their own merits, uninfluenced by the dismissal of these ap- peals and dispose of the same expeditiously in accordance with law.
written by :- SHIBIN P intern under legal vidhiya
