Full Judgment Text
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CASE NO.:
Appeal (crl.) 602 of 2004
PETITIONER:
Vijaykumar Baldev Mishra @ Sharma
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 18/05/2007
BENCH:
S.B. Sinha
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
1. One Anna Shetty was facing trial for murder of one Duni Chand
Kalani. Duni Chand Kalani is said to be the uncle of one Pappu
Kalani. He was an accused in a murder case. The said Anna Shetty
was murdered in Jail. Anna Shetty was released from Jail on
15.10.1990. He was murdered on the same day. The appellant was
an accused therein with many others. The said murder took place in
view of the long standing enmity between two gangs belonging to
Gopal Rajwani and Pappu Kalani. A First Information Report was
lodged under Section 302/307 IPC as also under the Arms Act.
Appellant, however, along with others, were also charged under
Terrorist and Disruptive Activities (Prevention) Act (hereinafter
referred to as ’TADA’).
2. Indisputably, a Constitution Bench of this Court in Kartar Singh
vs. State of Punjab, [1994 (3) SCC 569], while upholding the validity
of TADA directed constitution of a Committee to review the cases
pending thereunder for the purpose of making recommendations to
the Government, so as to enable it to consider the matters where in
its opinion, the charges under TADA were required to be dropped and
the matters for the prosecution thereunder should continue.
3. Kartar Singh (supra) was explained by this Court in R.M. Tewari
v. State (NCT of Delhi) and Others [1996 (2) SCC 610] in the
following terms:
"10. The observations in Kartar Singh 1 have
to be understood in the context in which they
were made. It was observed that a review of
the cases should be made by a High Power
Committee to ensure that there was no misuse
of the stringent provisions of the TADA Act and
any case in which resort to the TADA Act was
found to be unwarranted, the necessary
remedial measures should be taken. The
Review Committee is expected to perform its
functions in this manner. If the
recommendation of the Review Committee,
based on the material present, is, that resort
to provisions of the TADA Act is unwarranted
for any reason which permits withdrawal from
prosecution for those offences, a suitable
application made under Section 321 CrPC on
that ground has to be considered and decided
by the Designated Court giving due weight to
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the opinion formed by the public prosecutor on
the basis of the recommendation of the High
Power Committee.
11. It has also to be borne in mind that the
initial invocation of the stringent provisions of
the TADA Act is itself subject to sanction of the
Government and, therefore, the revised
opinion of the Government formed on the basis
of the recommendation of the High Power
Committee after scrutiny of each case should
not be lightly disregarded by the court except
for weighty reasons such as mala fides or
manifest arbitrariness. The worth of the
material to support the charge under the TADA
Act and the evidence which can be produced, is
likely to be known to the prosecuting agency
and, therefore, mere existence of prima facie
material to support the framing of the charge
should not by itself be treated as sufficient to
refuse the consent for withdrawal from
prosecution. It is in this manner an application
made to withdraw the charges of offences
under the TADA Act pursuant to review of a
case by the Review Committee has to be
considered and decided by the Designated
Courts."
4. Bombay High Court also took the same view and issued similar
directions.
5. Pursuant to or in furtherance of the recommendations of this
Court as also the Bombay High Court, a Review Committee was
constituted, headed by a retired Judge of the High Court of Bombay.
The Review Committee took up for consideration 27 cases including
the one pending against the appellant herein. In its report, the
Review Committee opined :
"The murder of Anna Shetty appears to
be out of personal enmity and not intended to
cause fear or terror in the minds of the people.
It is so stated in the chargesheet itself.
"To take revenge of the murder of his
uncle and to establish supremacy over
the rival gang, he made conspiracy to kill
Anna Shetty by providing money,
weapons, manpowers, vehicles and other
assistance. He was the mastermind
behind the killing of Anna Shetty."
It also reveals that the genesis of two
murder cases i.e. TCS No.25/92 and TCS 8/93
are inter connected as observed by the
Supreme Court in its order dated 2nd March
2001 in Criminal Appeal No. 12981, 1299 of
1998 as under:
"According to the prosecution
there are two groups in Ulhasnagar,
one is headed by Gopal Rajwani and
other by Pappu Kalani. The deceased
Maruti Jadhav and one Krishna Pillay
were eye witness to the murder of
Lalu in the year 1989 at hotel Sun &
Sand, Bombay. The said Krishna was
murdered and thereafter Maruti
Jadhav remained the only eye
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witness."
It is heard in the case of Niranjan Singh
Karan Singh Punjabi vs. Jitendera Bhimraj Bijj-
AIR 1990 SC 1962 (1969).
"A mere statement to the
effect that the show of such violence
would create terror or fear in the
minds of the people and none would
care to oppose them cannot constitute
an offence under Section 3 (1) of
TADA Act."
It was observed :
"Although the murder of Anna Shetty
took place in 1990 and the case was
chargesheeted in 1993, the trial has not
commenced. There are three accused persons
who are still in jail for more than seven years
and are yet to be tried. In view of the
observation of the Hon’ble Supreme Court in
the various judgments cited above, the long
time that has elapsed, periods spent in jail and
the fact that the crime is committed due to
personal enmity, the Review Committee is of
the view to drop the proceedings under TADA
against all the accused and they may be
prosecuted for the charges under Section 302
IPC etc. in the regular Sessions Court.
6. It was opined that no case for continuation of a case under
TADA had been made out against the appellant. Pursuant to or in
furtherance of the said recommendations, the special public
prosecutor filed an application for withdrawal of the charges under
TADA inter alia as against the appellant stating :
"The reasons for withdrawal are as under :
(A) The stringent provision of TADA need
not to be attracted in the instant case and the
Government after proper discussion on the
facts of the case and the evidence, reports and
letters available on the record has decided in
the enclosed list and the Government has
perused all records and considered the opinion
of the Review Committee formulated by the
State Government under orders of the
Supreme Court. It would be just and proper
that this case need not be proceeded further.
The request is being made to withdraw from
prosecution as against the offences punishable
under the TADA Act, and the stringent and
hard provisions of TADA were not necessary to
deal with such situations. In fact, from the
record it has also been seen that the provision
of the said TADA Act also could not be said to
be attracted as the said provision cannot be
invoked nor could the activities be said to be
disruptive activities as the said incident seems
to have taken place because of the personal
rivalry and as held by the Hon’ble Supreme
Court in the case of State vs. Nalini and others
reported in 1999 (5) SCC 253, it could not be
said that the provisions of Section of TADA are
applicable. It is worthwhile to note that after
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having seen the record that concession cannot
form the basis for framing charges.
(B) The State Government having considered
all this and the Special Public Prosecutor
having applied his mind to this aspect, seeks to
withdraw from the prosecution in respect of
offences under TADA Act as against the
accused in the instant case."
7. The Designated Court TADA dismissed the said application by
an order dated 15.5.1993 inter alia opining :
"The case No.8/93 pertains to the
murder of Anna Shetty and constable \026 Surve.
He has also referred to the murder of one
Ghanasham Bhjatia and Inder Bhatija on
27.7.1990 and 28.4.90 respectively, who were
also accused in case of murder of Dunichand
Kalani. In the order dated 10.11.98 in
connected TADA Sessions Case No.25/92 and
9/93 below Exh. 27, 31, 32 etc. my learned
predecessor made reference to the
confessional statements of accused recorded
under the provisions of TADA Act. Leaving
aside the infirmities and/or evidentiary value of
these statements which will be assessed during
trial the fact remains that all this evidence
collected after strenuous investigation will have
to be ignored. In both these cases allegations
are that conspiracy was hatched to eliminate
Anna Shetty. Maruti Jadhav and in pursuance
of this plan was executed on different dates.
Thus confessional statements recorded under
Section 15 of the TADA Act are very relevant
and important piece of evidence to unfold
conspiracy and to unfold act of main
perpetrator of crime. Keeping in view this
aspect of the matter, if applications for
dropping of the charges under the provisions of
TADA Act are considered, it would be difficult
to conclude that the withdrawal from the
prosecution or dropping of the charges under
the provisions of TADA Act would hardly serve
any public interest or would advance course of
justice. This is apart from the fact that in both
these matters there are orders of Hon’ble
Supreme Court wherein applicability of TADA
has been upheld and trials have been
expedited. It is therefore expected of the
State to render assistance to the Court to
dispose of the matters expeditiously."
8. The State of Maharashtra being aggrieved by the said order
filed a writ petition before the Bombay High Court which was marked
as Criminal Writ Petition 562 of 2003. A Division Bench of the said
Court by a judgment and order dated 4.7.2003 while declining to
entertain the same opined that as an appeal against the order of the
learned Designated Court TADA is maintainable under Section 19 of
the Act, the petitioner should take recourse thereto stating:
"In our opinion therefore the objection
raised by Mr. Nitin Pradhan that the writ
petition is not maintainable in view of the fact
that alternate and efficacious remedy by way
of appeal is available to the prosecution is well
founded.
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In all humility, in our opinion, a remedy
of appeal under Section 19 of the TADA Act is
far more efficacious and better for all
concerned than seeking exercise of writ
jurisdiction of this court under Article 226 of
the Constitution.
Yet another important aspect to be noted
is that this very interveners in this case i.e.
representatives of the victim are also the
interveners of the appeal in the Supreme Court
which was decided by the order dated 2nd
March 2001. It is pertinent to note that they
do not in our opinion, rightly raise any
objection about maintainability of the appeal in
Supreme Court on the ground that the order
challenged is an interlocutory order."
9. Appellant has, thus, preferred this appeal under Section 19 of
the TADA (P) Act, 1987 from the said judgment of the Designated
Court TADA dated 10.3.2003.
10. Mr. R.F. Nariman, the learned senior counsel appearing on
behalf of the appellant submits that keeping in view the
recommendations of the Review Committee, the learned Designated
Court TADA committed a manifest error in refusing to allow the public
prosecutor to withdraw the case solely on the ground that certain
confessions having been made thereunder, the same would not be
available if the appellant is not proceeded against under TADA Act.
The Review Committee, as noticed hereinbefore, was constituted in
view of the directions issued by this Court in Kartar Singh (Supra)
and a decision of the Bombay High Court in Criminal Writ Petition No.
289 of 2002. The Review Committee reviewed only those cases
where the trial had not started. They formulated their own guidelines
for scrutiny of the matter. It noticed the decision of this Court in
State vs. Nalini reported in (1999) 5 SCC 253 wherein it was held :
"A reading of the first sub-section shows that
the person who does any act by using any of
the substances enumerated in the sub-section
in any such manner as are specified in the sub-
section, cannot be said to commit a terrorist
act unless the act is done "with intent" to do
any of the four things: (1) to overawe the
Government as by law established; or (2) to
strike terror in people or any section of the
people; or (3) to alienate any section of the
people; or (4) to adversely affect the harmony
amongst different sections of the people"
11. Mr. R.K. Adsure, learned counsel appearing on behalf of the
State supported the contention of Mr. Nariman.
12. Section 321 of the Criminal Procedure Code, 1973 provides for
withdrawal from prosecution at the instance of the public prosecutor
or Assistant public prosecutor. Indisputably therefor the consent of
the Court is necessary. Application of mind on the part of the Court,
therefore, is necessary in regard to the grounds for withdrawal from
the prosecution in respect of any one or more of the offences for
which the appellant is tried. The provisions of TADA could be
attracted only in the event of one or the other of the four ’things’
specified in Nalini (supra) is found applicable and not otherwise. The
Review Committee made recommendations upon consideration of all
relevant facts. It came to its opinion upon considering the materials
on record. Its recommendations were based also upon the legality of
the charges under TADA in the fact situation obtaining in each case.
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It came to the conclusion that in committing the purported offence,
the appellant inter alia had no intention to strike terror in people or
any section of the people and in fact the murder has been committed
only in view of group rivalry and because the parties intended to take
revenge, the provisions of the TADA should not have been invoked.
13. The Public Prosecutor in terms of the statutory scheme laid
down under the Code of Criminal Procedure plays an important role.
He is supposed to be an independent person. While filing such an
application, the public prosecutor also is required to apply his own
mind and the effect thereof on the society in the event such
permission is granted.
14. In Sheonandan Paswal v. State of Bihar [(1987) 1 SCC 288],
Khalid, J, opined :
"73. Section 321 gives the Public Prosecutor
the power for withdrawal of any case at any
stage before judgment is pronounced. This
presupposes the fact that the entire evidence
may have been adduced in the case, before
the application is made. When an application
under Section 321 CrPC is made, it is not
necessary for the court to assess the evidence
to discover whether the case would end in
conviction or acquittal. To contend that the
court when it exercises its limited power of
giving consent under Section 321 has to assess
the evidence and find out whether the case
would end in acquittal or conviction, would be
to rewrite Section 321 CrPC and would be to
concede to the court a power which the
scheme of Section 321 does not contemplate.
The acquittal or discharge order under Section
321 are not the same as the normal final
orders in criminal cases. The conclusion will
not be backed by a detailed discussion of the
evidence in the case of acquittal or absence of
prima facie case or groundlessness in the case
of discharge. All that the court has to see is
whether the application is made in good faith,
in the interest of public policy and justice and
not to thwart or stifle the process of law. The
court after considering these facets of the
case, will have to see whether the application
suffers from such improprieties or illegalities as
to cause manifest injustice if consent is given.
In this case, on a reading of the application for
withdrawal, the order of consent and the other
attendant circumstances, I have no hesitation
to hold that the application for withdrawal and
the order giving consent were proper and
strictly within the confines of Section 321
CrPC."
15. In regard to the Courts’ function in the matter of grant of
consent, while opining that the grant should not be a matter of
course, this Court held that even a detailed reasoned order is not
necessary to be passed therefor. The Court took into consideration
the jurisdiction of the Court under Section 321 of the Criminal
Procedure Code vis-‘-vis other provisions laid down therein opining :
"85. The scope of Section 321 can be tested
from another angle and that is with reference
to Section 320 which deals with "compounding
of offences". Both these sections occur in
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Chapter 24 under the heading "General
Provisions as to Enquiries and Trials". Section
320(1) pertains to compounding of offences, in
the table, which are not of a serious nature
while Section 320(2) pertains to offences of a
slightly serious in nature but not constituting
grave crimes. The offences in the table under
Section 320(1) may be compounded by the
persons mentioned in the third column of the
table without the permission of the court and
those given in the Table II, under Section
320(2) can be compounded only with the
permission of the court. Under sub-section 4( a
), when a person who would otherwise be
competent to compound an offence under
Section 320, is under the age of 18 years or is
an idiot or a lunatic, any person competent to
contract on his behalf may, with the
permission of the court, compound such
offence. Sub-section 4( b ) provides that when
a person who would otherwise be competent to
compound an offence under this section is
dead, the legal representative, as defined in
the Code of Civil Procedure, of such person
may, with the consent of the court, compound
such offence.
86. These two sub-sections use the expression
"with the permission of the court" and "with
the consent of the court" which are more or
less ejusdem generis. On a fair reading of the
abovementioned sub-sections it can be safely
presumed that the sections confer only a
supervisory power on the court in the matter
of compounding of offences in the manner
indicated therein, with this safeguard that the
accused does not by unfair or deceitful means,
secure a composition of the offence. Viewed
thus I do not thin k that a plea can be
successfully put forward that granting
permission or giving consent under sub-section
(4)( a ) or (4)( b ) for compounding of an
offence, the court is enjoined to make a
serious detailed evaluation of the evidence or
assessment of the case to be satisfied that the
case would result in acquittal or conviction. It
is necessary to bear in mind that an application
for compounding of an offence can be made at
any stage. Since Section 321 finds a place in
this chapter immediately after Section 320,
one will be justified in saying that it should
take its colour from the immediately preceding
section and in holding that this section, which
is a kindred to Section 320, contemplates
consent by the court only in a supervisory
manner and not essentially in an adjudicatory
manner, the grant of consent not depending
upon a detailed assessment of the weight or
volume of evidence to see the degree of
success at the end of the trial. All that is
necessary for the court to see is to ensure that
the application for withdrawal has been
properly made, after independent
consideration, by the Public Prosecutor and in
furtherance of public interest.
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It was furthermore held:
"90. Section 321 CrPC is virtually a step by
way of composition of the offence by the State.
The State is the master of the litigation in
criminal cases. It is useful to remember that by
the exercise of functions under Section 321,
the accountability of the concerned person or
persons does not disappear. A private
complaint can still be filed if a party is
aggrieved by the withdrawal of the prosecution
but running the possible risk of a suit of
malicious prosecution if the complaint is bereft
of any basis."
(See also S.K.Shukla and Others vs. State of U.P. and Others
[2006(1) SCC 314], Rahul Agarwal vs. Rakesh Jain and Anr. [2005
(2) SCC 377] and K.Anbazhagan vs. Superintendent of Police and
Others [2004(3) SCC 767])
16. Noticing that no guidelines have been provided for in the
matter of grant or withdrawal of the consent by the Court, the
Constitution Bench referred to the ratio of its earlier decision in State
of Bihar vs. Ram Naresh Pandey [1957 (1) SCR 279] wherein it was
held:
"His discretion in such matters has necessarily
to be exercised with reference to such material
as is by then available and it is not a prima
facie judicial determination of any specific
issue. The Magistrate’s functions in these
matters are not only supplementary, at a
higher level, to those of the executive but are
intended to prevent abuse. Section 494
requiring the consent of the court for
withdrawal by the Public Prosecutor is more in
line with this scheme, than with the provisions
of the Code relating to inquiries and trials by
court. It cannot be taken to place on the court
the responsibility for a prima facie
determination of a triable issue. For instance
the discharge that results therefrom need not
always conform to the standard of ’no prima
facie case’ under Sections 209(1) and 253(1)
or of ’groundlessness’ under Sections 209(2)
and 253(2). This is not to say that a consent is
to be lightly given on the application of the
Public Prosecutor, without a careful and proper
scrutiny of the grounds on which the
application for consent is made."
17. While refusing to grant permission, the Designated Court, in
our opinion, was not correct in expressing its opinion in the merit of
the matter and the effect of confessions made in terms of the
provisions of TADA. It was, however, also not necessary to consider
as to whether, the action of the public prosecutor as also the State
was bonafide or not. Moreover, bonafide on the part of the public
prosecutor itself cannot automatically lead to grant of consent.
There are other circumstances also which are required to be taken
into consideration.
18. For the reasons aforementioned, the appeal is allowed. The
application filed by the State for withdrawal of the charges under
TADA against the appellant shall stand allowed. The learned
Designated Judge may now proceed with the matter in accordance
with law.