Full Judgment Text
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PETITIONER:
ANIRUDHSINHJI KARANSINHJIJADEJA & ANR.
Vs.
RESPONDENT:
THE STATE OF GUJARAT
DATE OF JUDGMENT11/08/1995
BENCH:
HANSARIA B.L. (J)
BENCH:
HANSARIA B.L. (J)
AHMADI A.M. (CJ)
SEN, S.C. (J)
CITATION:
1995 AIR 2390 1995 SCC (5) 302
JT 1995 (6) 146 1995 SCALE (4)715
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
HANSARIA, J.
The two appellants are in jail being accused of having
committed offences, inter alia under Sections 3 and 5 of the
Terrorists and Disruptive Activities (Prevention) Act, 1987
(for short ’the TADA’). Their prayer is to release them on
bail, which has been denied by the Designated Court. In
support of this plea, a large number of points were raised
before us in course of arguments. It is not necessary to go
into all these questions as, according to us, the appeal
deserves to be allowed on the sole ground of wrong
invocation of TADA in the case of the appellants.
2. To bring home the above, we may note the prosecution case
in short, which is that:
"......on March 15, 1995 one Jayantilal
Mohanlal Vadodaria who is a son of elder
brother Mohanlal Kalabhai of the
complainant, was murdered by some
assailants near Ashapura Dam at the
distance of 3 K.M. from Gondal town. So
on receiving this information, the
complainant went to the scene of offence
where a dead body of his nephew
Jayantilal was lying. One Vespa-scooter
of the deceased was also lying there. It
was found that there were injury marks
by fire on the body of the deceased.
There was a certridge of red colour
which was used, was lying near the body.
It was further stated in the complaint
that deceased Jayantilal was travelling
on his scooter for going to his vadi
from his house at 4.00 p.m. as usual and
he was passing throught the way of
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Ashapura Dam. His vadi is situated on
the road of Kotda Sangani Village".
3. It has been alleged that deceased Jayantilal, aged 32
years, was a resident of Gondal and was a leading member of
the Patel community. Previously, he was a member of the
Gondal Nagar Palika and also Director of Gondal Nagrik
Sahakari Bank. The post-mortem revealed that the deceased
had received gun-shot injuries and also injuries caused by
knives. The murderers had come in a white Ambassador Car No.
GIG-375 and had fired twice at the deceased and had caused
injuries by sharp weapons. After killing the deceased, the
murderers absconded. The car was ultimately recovered from a
place within Jamkandorna Police Station, and all the four
accused were arrested there on 16.3.1995 at 2115 hours.
4. The further allegation is that the four persons, after
committing the murder, went to Anirudhsinh Karansinh Jadeja,
Sarpanch of village Mota Umvada and a resident of that
village and sought refuge. Anirudhsinh was in his field at
that time (5.30 P.M.) and Digubha Jadeja was present there.
Anirudhsinh declined to provide shelter but agreed to keep
the weapons. One country-made gun with cartridges and two
knives were packed in a kundle and Vishubha and Digubha had
concealed the bundle by digging a pit on the ground of a
small room in the field belonging to Anirudhsinh. After
hiding the weapons, Vishubha along with other alleged
murderers left the field and went away by the white
Ambassador car in which they had come. Police arrested and
started criminal proceedings not only against the alleged
murderers but also againstAnirudhsinh Jadeja and Digubha
Jadeja, the appellants herein.
5. Anirudhsinh (appellant No.1) was produced before the
Executive Magistrate, Gondal, on 18.3.1995 on the allegation
that one country made gun and cartridges were recovered from
his field and a case was registered against him under
Section 25(1)(b) of the Arms Act bearing Crime Registration
No.28/95. The allegation against Digubha; appellant was that
he had abetted in secreting the weapon. They were arrested
and produced before the Executive Magistrate who granted
five days’ remand. On a prayer made on behalf of the
appellants on 23.3.1995, the Executive Magistrate directed
the police authorities not to ill-treat the appellants. On
24th March, 1995 the Executive Magistrate sent all the
accused persons, including the appellants, to hospital where
they were kept till 27th March, 1995. Thereafter, an order
was passed on 27th March, 1995 by which all the accused were
remanded to judicial custody. On behalf of the State, the
order of the Magistrate refusing police remand was
challenged before the Sessions Judge. On 28th March, 1995
the appellants had made an application for bail, which was
rejected by the Designated Court on 18th April, 1995. Hence
this appeal to this Court by special leave.
6. The first point to be decided is about the legality of
invocation of TADA. Its Section 20-A lays down:-
"Congnizance of offence.
20A. (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".
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7. Therefore, condition precedent for recording an
information about the commission of an offence under TADA is
the approval of the District Superintendent of Police and
cognizance of any offence under TADA cannot be taken by any
court ‘without the previous sanction of the Inspector-
General of Police, or, as the case may be, the Commissioner
of Police’. The provision of the statute is clear that the
District Superintendent of Police under sub- section(1) can
grant approval/sanction for recording of any information
about commission of an offence under TADA. The jurisdiction
under Section 20A (1)to grant approval for recording of any
information about the commission of an offence under TADA,
has been vested in the District Superintendent of Police.
8. In the instant case, a specific point has been taken
in the Special Leave Petition that prior approval, as
required by section 20A(1) of TADA, was not taken. This
section was introduced to safeguard the citizens from
vexatious prosecution under TADA. The Designated Court had
failed to appreciate that the DSP had not given prior
approval and the case of the appelants under TADA was,
therefore, nonest.
9. This ground appears to be of substance. The DSP did
not exercise the jurisdiction vested in him under Section
20A (1). On the contrary, he abdicated his jurisdiction and
referred the matter to the Additional Chief Secretary, Home
Department, on 17th March, 1995, requesting for permission
to invoke the provisions of Sections 3 and 5 of TADA by
sending a report for this purpose as under:-
"In the matter of Gondal City Police
Station I.C.R. NO.34/1995 under Section
302. 120-B of the Indian Penal Code and
Indian Arms Act Section 25(1) (c) of
the Indian Arms Act the facts are that
the victim, i.e., the deceased
Jayantibhai Mohanbhai Vadodaria, aged
32, resident of Yoginagar, Gondal was an
active member of B.J.P. and was a leader
of Patel community. In past, he was
member of Gondal Municipality and was
also a director in Gondal Nagrik
Sahakari Bank Ltd., which is managed by
B.J.P.
on 15.3.1995 when the First Chief
Minister of B.J.P. Government took oath
and installation ceremony was being
performed at Gandhinagar, on that very
day in the evening at 14-30, Jayantibhai
Vadodaria was killed on Ashapura Dam by
firing shots and by sharp weapons. The
complaint of this murder is lodged by
Shri Nanalal Kalabhai Patel, the uncle
of deceased and on the strength of that
complaint, on making investigation, it
is revealed that the murderers had come
in white coloured Ambassador car No. GRG
375 and had fired twice on him and had
also caused injuries by sharp weapons
and killed Jayantibhai and then they
have absconded. In this case during the
investigation, the names of following
persons are disclosed:
1. Dinubha alias Dineshsinh Kiritsinh
Jadeja, Resident of Gondal.
2. Harshyamsinh Jalamsinh Jadeja,
Dismissed Constable of SRP,
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resident of Sindhavadar. Tal
Gondal.
3. Veshubha Abhesinh Jadeja, (SRP
Constable) resident of Gondal.
4. Jitendrasinh Chandrasinh Chudasam,
resident of Virpur (Jetpur).
During the course of investigation, on
16.3.1995 at 21-15 all the four accused
are arrested from the limits of Jam-
kandorna Police Station along with the
car used in the offence.
All the four accused declare during
investigation that they reside in Gondal
and when accused No.2 and 3 was in need
of loan from Gondal Nagrik Sahkari Bank
and had contacted the deceased who was
director of the said Bank at that time,
the deceased had told to the applicant,
i.e., accused No.2 and 3 herein that ‘Go
Go, this Bank is not meant for Darbars;
for getting loans, only Patels may come
to me and no Darbar can get loan’. On
this talk, there was quarrel. This
quarrel had taken place before about 10
or 12 days and since then the said four
Darbars had decided to kill Jayantibhai,
else, the strength of Patels will be
increasing, therefore, since last 10
days, they were planning to kill
Jayantibhai and on 15.3.1995 on finding
an opportunity, they have killed him. In
past also the murder of MLA of Gondal,
Popatbhai Sorathia by the member of
Darbar community. Therefore, on
happening of the present incident, the
members of Patel community are feared
and frightened and nobody dared to come
to Police Station. Later on Jayantibhai
Dhol a leader of Patel community ,
informed us on telephone at Rajkot and
told about the incident and requested to
make some arrangement and to direct the
local police to reach at the scene of
offence. Therefore, we informed local
police and after the local police
reached on the scene of offence, the
family members of the deceased could
went there.
All the accused who have committed
the murder belong to Darbar community
and by committing murder of Patel
leader, they have created enmity between
the two community. In Gondal City in
past also the Darbar community have
committed the murder of Patel leader and
now also Jayantibhai is murdered
mercilessly by firing shots and knife
blows and they have spread the
atmosphere of terror and fear.
Therefore, the harmony between the two
community is very seriously and
adversely affected. because of this
incident, the people in that area had
started running and moving here and
there and the hawkers doing business in
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hand-crafts were also frightened and ran
away. The police force in large number
was put on patrolling and numerous
vehicles and police officers were put to
patrolling and only thereafter public
could dare to come out from home.
From the above facts, it is clear
that the accused have committed offence
under Sections 3 and 5 of the Terrorist
and Distruptive Activities (Prevention)
Act, 1987 by keeping illegal weapons and
by keeping ammunition and therewith
murdering the citizen, they have done
the act of terrorist and offence under
Section 5 of the said Act is committed.
C.I.D., I.B. of Gujarat State has
also reported that due to this incident
and as a reaction of this incident, the
enmity prevailing in Saurashtra between
Darbar and Patel Community may intensify
and opposite party, i.e., Patels may
also indulge in such activities.
Considering the situation which has
arisen permission may please be given to
invoke the provisions of Sections 3 and
5 of the TADA in this matter.
Sd/- in English
District Police Superintendent
Rajkot Rural, Camp at Gondal".
10. The Deputy Director-General of Police and the
Additional Director- General of Police also sent FAX
Messages to the Chief Secretary on 18th March, 1995,
requesting him to grant the prayer of the DSP and permit him
to proceed under TADA. On 18th March, 1995, the Additional
Chief Secretary, Home Department, gave sanction/consent to
apply provisions of TADA; and the District Superintendent of
Police, Rajkot Rural, was informed accordingly. There is
nothing in the Act to suggest that the Additional Chief
Secretary has to grant permission to the District Police
Superintendent for proceeding under TADA.
11. The case against the appellants originally was
registered on 19th March, 1995 under the Arms Act. The DSP
did not give any prior approval on his own to record any
information about the commission of an offence under TADA.
On the contrary, he made a report to the Additional Chief
Secretary and asked for permission to proceed under TADA.
Why? was it because he was reluctant to exercise
jurisdiction vested in him by the provision of Section 20A
(1)? This is a case of power conferred upon one authority
being really exercised by another. If a statutory authority
has been vested with jurisdiction, he has to exercise it
according to its own discretion. If the discretion is
exercised under the direction or in compliance with some
higher authority’s instruction, then it will be a case of
failure to exercise discretion altogether. In other words,
the discretion vested in the DSP in this case by Section 20A
(1) was not exercised by the DSP at all.
12. Reference may be made in this connection to
Commissioner of Police vs. Gordhandas Bhanji, 1952 SCR 135,
in which the action of Commissioner of Police in cancelling
the permission granted to the respondent for construction of
cinema in Greater Bombay at the behest of the State
Government was not upheld, as the concerned rules had
conferred this power on the Commissioner, because of which
it was stated that the Commissioner was bound to bear his
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own independent and unfettered judgment and decide the
matter for himself, instead of forwarding an order which
another authority had purported to pass.
13. It has been stated by Wade and Forsyth in
’Administrative Law’, 7th Edition at pages 358 and 359 under
the heading ’SURRENDER, ABDICATION, DICTATION’ and sub-
heading "Power in the wrong hands" as below:-
"Closely akin to delegation, and
scarcely distingushable from it in some
cases, is any arrangement by which a
power conferred upon one authority is in
substance exercised by another. The
proper authority may share its power
with some one else, or may allow some
one else to dictate to it by declining
to act without their consent or by
submitting to their wishes or
instructions. The effect then is that
the discretion conferred by parliament
is exercised, at least in part, by the
wrong authority, and the resulting
decision is ultra vires and void. So
strict are the courts in applying this
principle that they condemn some
administrative arrangements which must
seem quite natural and proper to those
who make them.....".
"Ministers and their departments
have several times fallen foul of the
same rule, no doubt equally to their
surprise....".
14. The present was thus a clear case of exercise of power
on the basis of external dictation. That the dictation came
on the prayer of the DSP will not make any difference to the
principle. The DSP did not exercise the jurisdiction vested
in him by the statute and did not grant approval to the
recording of information under TADA in exercise of his
discretion.
15. The aforesaid is however not all. Even if it be
accepted that as an additional safeguard against arbitrary
exercise of the drastic provisions, the State Government had
provided by administrative instructions an additional
safeguard where under the DSP was required to obtain the
sanction/consent of the State Government, we are of the view
that in the present case the same was given by the State
Government without proper application of mind. We have taken
this view because the sanction/consent was given by the
Government merely on the basis of the FAX message dated
17.3.1995 of the DSP. The reason for our saying so is that
though there is on record a FAX message of Deputy Director
General of Police also, which is dated 18.3.1995, the
sanction/ consent order has mentioned above the FAX message
of the DSP only. Now, no doubt the message of the DSP is
quite exhaustive, as would appear from that message which
has been quoted above in full, we are inclined to think that
before agreeing to use of harsh provisions of TADA against
the appellants, the Government ought to have taken some
steps to satisfy itself whether what had been stated by the
DSP was brone out by the records, which apparently had not
been called for in the present case, as the sanction/consent
was given post haste on 18.3.1995, i.e., the very next day
of the message of the DSP. It seems the DSP emphasised the
political angle in the first two paragraphs of his message.
The dispute or motive stated was that the Darbars were
annoyed because they were refused loan and not because of
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any political rivalry. In the third paragraph there is
reference to statements of accused after arrest which would
ordinarily be inadmissible in evidence. Reference to avoid
incident of the past does not provide any nexus. The State
Government gave the sanction without even discussing the
matter with the investigating officer and without assessing
the situation independently. All these show lack of proper
and due application of mind by the State Government while
giving sanction/consent.
16. For the aforesaid twin reasons we state that the
entire proceeding against the appellants under TADA is
vitiated and the same is, therefore, quashed. It would
however be open to the respondents to proceed against the
appellants even under the TADA in accordance with law.
17. Insofar as other offence is one under Section 25(1)
(b) of the Arms Act is concerned, no contention has been
advanced to deny bail to the appellants. We, therefore,
order the release of the two appellants on bail on each of
them furnishing a bond of Rs. 10,000/- with one surety in
the like amount. The appellants shall observe the following
conditions also after release on bail:
(1) They shall make themselves available for
interrogation by police as and when required.
(2) They shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with
the facts of the case so as to dissuade them from disclosing
such facts to the court or to police.
(3) They shall not leave the State of Gujarat without
the permission of the Designated Court.
18. The appeal is allowed accordingly.