Full Judgment Text
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PETITIONER:
NIRANJAN SINGH KARAM SINGH PUNJABI ANDORS ETC. ETC.
Vs.
RESPONDENT:
JITENDRA BHIMARAJ BIJJE AND ORS. ETC. ETC.
DATE OF JUDGMENT07/08/1990
BENCH:
AHMADI, A.M. (J)
BENCH:
AHMADI, A.M. (J)
KASLIWAL, N.M. (J)
CITATION:
1990 AIR 1962 1990 SCR (3) 633
1990 SCC (4) 76 JT 1990 (3) 408
1990 SCALE (2)193
ACT:
The Terrorist and Disruptive Activities (Prevention)
Act, 1987: Section 3(1)--Scope of-Inter-gang rivalry--Unlaw-
ful assembly-Statement showing intention of accused to
eliminate rivals--Murder of rivals with object to gain
supremacy in the underworld--Held did not disclose the
commission of an offence under Section 3(1).
Section 12(1) and 18--Designated Court--Power to try
connected offences under other statutes and transfer cases
to regular courts--Non-existence of prima-facie evidence
before Designated Court to frame charge under Section 3(
1)--Consequent transfer of connected cases under other
statutes to regular courts--Held justified and in keeping
with section 18.
The Code of Criminal Procedure, 973: Sections 227-228,
Accused--Discharge--Determination of sufficient grounds for
framing charge against the accused--Consideration of docu-
ments and records--Scope and ambit of consideration by Trial
Court.
HEADNOTE:
The accused-petitioners were charged under section 302
and 307 read with Sections 147, 148 and 149 of the Indian
Penal Code and Section 37 of the Bombay Police Act, 1951.
Subsequently they were also charged under section 3 of the
Terrorist and Disruptive Activities (Prevention) Act. 1987.
They moved the Designated Court for grant of bail contending
that the provisions of the 1987 Act were wrongly and mali-
ciously invoked and the Designated Court held that section 3
of the Act was inapplicable. The State of Maharashtra has
preferred an appeal to this Court against the said order of
the Designated Court. Since the accused were directed to
approach the regular court, they moved bail applications
before the Sessions Judge, Ahmadnagar which were rejected.
Thereafter, they approached the High Court and during the
pendency of their bail applications before the High Court,
the prosecution submitted a charge-sheet against them in the
Designated Court under section 3 of the 1987 Act. Conse-
quently the High Court rejected their bail applications and
the accused again approached the Designated Court for bail.
The Designated Court again held that the material
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634
placed before it and the statement recorded by the Investi-
gating Officer did not disclose the commission of an offence
under section 3 of the Act. Accordingly, it discharged the
accused under section 227 of the Code of Criminal Procedure,
1973 and transferred the case to court of Sessions for trial
of other offences under the Penal Code and the Bombay Police
Act. Against this order of the Designated Court, two appeals
have been filed in this Court; one by the deceased’s father
and the other by the State. After transfer of their case to
the regular court. the accused persons approached the High
Court for bail which was rejected. The accused persons have
filed a Special Leave Petition in this Court against the
High Court’s order refusing the bail.
Dismissing the appeals and disposing of the petition, this
Court.
HELD: 1. A mere statement by the accused persons to the
effect that the show of violence would create terror or fear
in the minds of the people and none would dare to oppose
them cannot constitute an offence under section 3(1) of the
Act. That may indeed be the fail out of the violent act but
that cannot be said to be the intention of the perpetrators
of the crime. [646H; 647A]
1.1 While invoking a criminal statute, such as the
Terrorist and Disruptive Activities (Prevention) Act,1987,
the prosecution is duty bound to show from the record of the
case and the documents collected in the course of investiga-
tion that facts emerging therefrom prima facie constitute an
offence within the letter of the law. [644F]
1.2 In the instant case it is clear from the statement
of the accused persons that their intention was to liquidate
rivals and thereby achieve the objective of gaining suprema-
cy in the underworld. The consequence of such violence is
bound to cause panic and fear but the intention of commit-
ting the crime cannot be said to be to strike terror in the
people or any section of the people. Therefore, the Desig-
nated Court was fully justified in taking the view that this
was a case of inter-gang rivalry only and that the material
placed on record and the documents relied on did not prima
facie disclose the commission of the offence punishable
under section 3(1) of the Act. [647D-E]
2. Section 12(1) of the Terrorist and Disruptive Activi-
ties (Prevention) Act, 1987 empowers the Designated Court to
try any offence punishable under any other statute along
with the offence punishable under the Act if the former is
connected with the latter. That, however, does not mean that
even when the Designated Court comes to the con-
635
clusion that there exists no sufficient ground for framing a
charge against the accused under Section 3(1) of the Act it
must proceed to try the accused for the commission of of-
fences under other statutes. Thai would tantamount to usurp-
ing jurisdiction. Section 18, therefore, in terms provides
that where after taking cognizance of any offence the Desig-
nated Court is of the opinion that the offence is not tri-
able by it, it shall, notwithstanding that it has no juris-
diction to try such offence, transfer the case for the trial
of such offence to any Court having jurisdiction under the
Code, Therefore, when the Designated Court came to the
conclusion that there was no prima facie evidence to frame a
charge under section 3(1) of the Act, it was justified in
transferring the case to the Court of Sessions, which alone
had jurisdiction under the Code. The course adopted by the
Designated Court in transferring the case to the Sessions
Court for trial of offences under other statutes is clearly
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in keeping with section 18 of the Act. [647F-H; 648A-C]
3. Statutes which impose a term of imprisonment for what
is a criminal offence under the law must be strictly con-
strued. [644C]
Usmanbhai Dawoodbhai Memon & Ors., v. State of Gujrat,
[1988] 2 SCC 271. referred to.
3.1 When a statute provides special or enhanced punish-
ments as compared to the punishments prescribed for similar
offences under the ordinary penal laws of the country, a
higher responsibility and duty is cast on the Judge to make
sure there exists prima facie evidence for supporting the
charge levelled by the prosecution. Therefore. when a law
visits a person with serious penal consequences extra care
must be taken to ensure that those whom the legislature did
not intend cover by the express language of the statute are
not roped in by stretching the language of the law. But that
does not mean that the judicial officer called upon to
decide whether or not a case for flaming a charge under the
Act is made out should adopt a negative attitude. He should
frame a charge if the prosecution shows that the material
placed on record and the documents relied on give rise to a
strong suspicion of the accused having committed the crime
alleged against him. [644G-H; 645A]
4. The Court while considering whether to discharge the
accused or to frame a charge against him i.e. at the stage
of sections 227-228 of the Code of Criminal Procedure, 1973
is required to evaluate the material and documents on record
with a view to finding out if the facts emerging therefrom
taken at their face. value disclose the existence of all the
ingredients constituting the alleged offence. Since the
Trial Court is
636
at the stage of deciding whether or not there exists suffi-
cient grounds for framing the charge, its enquiry must
necessarily be limited to deciding if the facts emerging
from the record and documents constitute the offence with
which the accused is charged. At that stage it may sift the
evidence for that limited purpose but it is not required to
marshal the evidence with a view to separating the grain
from the chaff. All that it is called upon to consider is
whether there is sufficient ground to frame the charge and
for this limited purpose it must weigh the material on
record as well as the documents relied on by tile prosecu-
tion. [643E; 641F-G]
State of Bihar v. Ramesh Singh, [1978] 1 SCR 257; Union
of India v. Prafulla Kumar Samal & Anr., [1979] 2 SCR 229
and Supdt. & Remembrancer of Legal Affairs, West Bengal v.
Anil Kumar Bhunja & Ors., [1979] 4 SCC 274, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
703, 7 12 of 1989 and 13 of 1990.
From the Judgment and Order dated 27.10.1989 of the
Designated Court/Judge at Jalgaon in Crl. Misc. Appln. No.
524 of 1989 in T.A.D.A. Case No. 9 of 1989 dated 2.9.1989 in
Crl. Misc. Appln. No. 357 of 1989.
WITH
Special Leave Petition (Crl.) No. 2459 of 1989.
From the Judgment and Order dated 15.11.1989 of the
Bombay High Court in Crl. Appln. No. 687 of 1989.
Appellant-in person in Crl. A. No. 703 of 1990.
B.A. Masodkar, U.R. Lalit and G.B. Sathe for the Appel-
lant Petitioners.
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V.N. Patii and A.S. Bhasme for the Respondents.
S.K. Pasi for the Intervenor.
The Judgment of the Court was delivered by
AHMADI, J. These three appeals arise out of the charge
levelled by the police against the five petitioners of the
above special leave
637
petition under Section 3 of the Terrorists and Disruptive
Activities (Prevention) Act, 1987, (hereinafter called ’the
Act’), Sections 302, 307 read with Sections 147, 148 and 149
IPC and Section 37 of the Bombay Police Act, 1951, for the
murder of one Raju alias Avtar Singh, son of the appellant
of Criminal Appeal No. 703/89, and for injuries caused to
his companion Keshav Vitthal, the first informant. The facts
giving rise to these proceedings are as under:
On the afternoon of the 12th July, 1989 when Raju and
his companion Keshav were proceeding on a motor-cycle at
about 3.00 p.m. they were intercepted by the accused Jiten-
dra and one another known as a wrestler. Following some
altercation and heated exchange of words between them, the
other three accused persons arrived at the spot. Two of them
were armed with knives and the third possessed an iron-rod.
On seeing them Keshav who was on the pillion seat took to
his heels whereupon Raju who was in the driver’s seat aban-
doned the motor-cycle and ran in another direction. Two of
the accused persons ran after Raju while the others includ-
ing the wrestler chased Keshav. On being over-taken accused
Vijay gave a knife blow on the chest of Keshav and his
companion Santosh dealt blows with the iron-rod. Thereafter
all the three fled from the scene of occurrence. The Other
two who had chased Raju are alleged to have killed him as he
was found lying in an unconscious condition on the road.
Both the injured were removed to the hospital. Raju suc-
cumbed to the injuries soon after reaching the hospital.
Keshav, however, responded to medical treatment and has
survived to give evidence.
On the same day at about 5.30 p.m. the first information
report was lodged by the injured Keshav. On the basis there-
of an entry was made in CR No. 138 of 1989 and a case under
Section 302 and 307 read with Sections 147, 148 and 149 IPC
and Section 37 of the Bombay Police Act was registered. The
accused were arrested on 15th July, 1989 and were taken on
remand for 9 days which period was extended upto 29th July,
1989 on which data the Investigating Officer invoked Section
3 of the Act. On 3rd August, 1989 the accused moved an
application in the Designated Court, Jalgaon, for bail,
inter alia, contending that the provisions of the Act had
been wrongly and maliciously invoked. The said application
was heard and decided by the Designated Court on 2nd Septem-
ber, 1989 which took the view that Section 3 of the Act was
wrongly applied. Against that order the State of Maharashtra
has preferred Criminal Appeal No. 712/89. As the accused
were directed to approach the regular court, they moved two
bail applications before the Fourth Additional Sessions
Judge, Ahmad-
638
nagar. The said bail applications were, however, rejected on
25th September, 1989. Against the said rejection the accused
approached the High Court. While those matters were pending
in the High Court, the prosecution submitted a charge-sheet
against the accused in the Designated Court at Jalgaon.
Thereupon the High Court rejected the applications. The
accused again approached the Designated Court for bail. The
Designated Court once again came to the conclusion that, in
the facts and circumstances of the case, Section 3 of the
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Act had no application and discharged the accused on that
count under Section 227 of the Code of Criminal Procedure,
1973 (hereinafter called ’the Code’). By the said impugned
order of 27th October, 1989 the case was ordered to be
transferred to the Court of Sessions, Ahmadnagar, on the
other charges and the accused were granted liberty to move
that court for bail. Against the said order Criminal Appeal
No. 703/89 has been preferred by Raju’s father while the
State of Maharashtra has filed Criminal Appeal No. 13/90.
Thereupon, the accused approached the High Court for bail
but the High Court rejected their application and directed
early hearing of the case. Special leave petition No. 2459/
89 is preferred by the original accused against the said
order.
The Act was enacted to make special provisions for the
prevention of, and for coping with, terrorist and disruptive
activities and for matters connected therewith or incidental
thereto. Section 2(d) defines the expression ’disruptive
activity’ to have the meaning assigned to it in section 4.
Section 2(h) defines the expression ’terrorist act’ to have
the meaning assigned to it under section 3(1) of the Act.
The relevant part of Section 3(1) provides that whoever,
with intent (i) to overawe the Government as by law estab-
lished or (ii) to strike terror in the people or any section
of the people or (iii) to alienate any section of the people
or (iv) to adversely affect the harmony amongst different
sections of the people, does any act or thing by using any
of the lethal weapons mentioned therein in such a manner as
to cause death of/or injuries to any person or persons,
commits a terrorist act. Section 3(2) lays down the penalty
for the commission of such an act. Section 4(1) prescribes
the penalty for indulging in any disruptive activity. Sec-
tion 4(2) defines a disruptive activity to mean any action
taken in whatever manner (i) which questions, disrupts or is
intended to disrupt, whether directly or indirectly, the
sovereignty and territorial integrity of India, or (ii)
which is intended to bring about or supports any claim,
whether directly or indirectly, for the cession of any part
of India or the secession of any part of India from the
Union. Section 6 provides enhanced penalty for aiding any
terrorist or disruptionist. Part III of the Act creates the
machinery for trying
639
terrorists and disruptionists charged with the commission of
any offence under the Act. Section 9 empowers the Central
Government as well as the State Governments to constitute by
notification one or more Designated Courts for such area or
areas, or for such case or class or group of cases as may be
specified in the notification. Section 9(6) provides that a
person shall not be qualified for appointment as a Judge or
an Additional Judge of a Designated Court unless he is
immediately before such appointment a Sessions Judge or an
Additional Sessions Judge in any State. Section 11 says that
every offence punishable under the provisions of the Act or
the rules made thereunder shall be tried by a Designated
Court constituted under Section 9(1) of the Act. Section
12(1) is relevant for our purpose and reads as under:
"When trying any offence, a Designated Court may also try
any other offence with which the accused may, under the
Code, be charged at the same trial if the offence is con-
nected with such other offence."
Section 14 sets out the procedure and powers of Designated
Courts. Sub-section 3 of the Section 14 is relevant for our
purpose. It reads as under:
"Subject to other provisions of this Act. Designated Court
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shall for the purpose of any offence have all the powers of
a Court of Sessions and shall try such offences as if it
were a Court of Sessions so far as may be in accordance with
the procedure prescribed in the Code for the trial before a
Court of Sessions."
Section 16 offers protection to witnesses. Section 17 gives
procedence to trials by Designated Courts. Section 18 empow-
ers the Designated Courts to transfer cases to regular
Courts. This Section reads as under:
"Where, after taking cognizance of any offence, a Designated
Court is of opinion that the offence is not triable by it,
it shall, notwithstanding that it has no jurisdiction to try
such offence, transfer the case for the trial of such of-
fence to any court having jurisdiction under the Code and
the court to which the case is transferred may proceed with
the trial of the offence as if it had taken cognizance of
the offence."
Section 19 provides for an appeal to the Supreme Court both
on facts
640
and on law from any judgment, sentence or order, other than
an interlocutory order, of a Designated Court. Section 20(1)
makes an offence under the Act or the rules, a cognizable
one. Sub-section (8) of section 20 lays down that notwith-
standing anything contained in the Code, no person accused
of an offence punishable under the Act or any rule made
thereunder shall, if in custody, be released on bail or on
his own bond unless the public prosecutor has been given an
opportunity to oppose his release and where he opposes his
release, the Court is satisfied that there are reasonable
grounds for believing that he is not guilty of such offence
and that he is not likely to commit any offence while on
bail. Section 21 mandates the Designated Court to presume,
unless the contrary is proved, that the accused has commit-
ted an offence under Section 3(1) if one of the four things
set out in clauses (a) to (d), is proved. Section 22 permits
identification of the offender on the basis of his photo-
graph. Section 28 empowers the Central Government to make
rules on any of the matters set out in clauses (a) to (f) of
sub-section (2) thereof. Such rules have to be laid before
both the Houses of Parliament. This in brief is the scheme
of the Act.
Under Section 14(3) of the Act a Designated Court is
conferred with the powers of a Court of Sessions and is
required to try any offence under the Act ’as if it were’ a
Court of Sessions. The procedure which it must follow at the
trial is the one prescribed in the Code fox the trial of
cases before a Court of Sessions. This is of course subject
to the other provisions of the Act which means that if there
is any provision in the Act which is not consistent with the
procedure stipulated in
the Code for such trials, it is the procedure in the Act
that shall prevail. The procedure for trial before a Court
of Sessions is set Chapter XVIII of the Code. Section 225
places the public prosecutor in charge of the conduct of the
prosecution. Section 226 requires him to open the prosecu-
tion case by describing the charge against the accused and
stating by what evidence he proposes to bring home the guilt
against the accused. Once that is done the Judge has to
consider whether or not to frame a charge. Section 227 of
the Code reads as under:
"If, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the sub-.
missions of the accused and the prosecution in this behalf,
the Judge considers that there is not sufficient ground for
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proceeding against the accused, he shall discharge the
accused and record his reasons for so doing."
641
Under this section a duty is cast on the judge to apply his
mind to the material on record and if on examination of the
record he does not find sufficient ground for proceeding
against the accused, he must discharge him. On the other
hand if after such consideration and hearing he is satisfied
that a prima facie case is made out against the accused, he
must proceed to frame a charge as required by Section 228 of
the Code. Once the charge is framed the trial must ordinari-
ly end in the conviction or acquittal of the accused. This
is in brief the scheme of Sections 225 to 235 of the Code.
Section 227, introduced for the first time in the New
Code, confers a special power on the Judge to discharge an
accused at the threshold if ’upon consideration’ of the
record and documents he considers ’that there is not suffi-
cient ground’ for proceeding against the accused. In other
words his consideration of the record and document at that
stage is for the limited purpose of ascertaining whether or
not there exists sufficient grounds for proceeding with the
trial against the accused. If he comes to the conclusion
that there is sufficient ground to proceed, he will frame a
charge under section 228, if not he will discharge the
accused. It must be remembered that this section was intro-
duced in the Code to avoid waste of public time over cases
which did not disclose a prima facie case and to save the
accused from avoidable harassment and expenditure.
The next question is what is the scope and ambit of the
’consideration’ by the trial court at that stage. Can he
marshal the evidence found on the record of the case and in
the documents placed before him as he would do on the con-
clusion of the evidence adduced by the prosecution after the
charge is framed? It is obvious that since he is at the
stage of deciding whether or not there exists sufficient
grounds for framing the charge, his enquiry must necessarily
be limited to deciding if the facts emerging from the record
and documents constitute the offence with which the accused
is charged. At that stage he may sift the evidence for that
limited purpose but he is not required to marshal the evi-
dence with a view to separating the grain from the chaff.
All that he is called upon to consider is whether there is
sufficient ground to frame the charge and for this limited
purpose he must weigh the material on record as well as the
documents relied on by the prosecution. In the State of
Bihar v. Ramesh Singh, [1978] 1 SCR 257 this Court observed
that at the initial stage of the framing of a charge if
there is a strong suspicion-evidence which leads the Court
to think that there is ground for presuming that the accused
has committed an offence then it is not open to the Court to
say that there is no sufficient ground for
642
proceeding against the accused. If the evidence which the
prosecutor proposes to adduce to prove the guilt of the
accused, even if fully accepted before it is challenged by
cross-examination or rebutted by the defence evidence, if
any, cannot show that the accused committed the offence,
then there will be no sufficient ground for proceeding with
the trial. In Union of India v. Prafulla Kumar Samal & Anr.,
[1979] 2 SCR 229, this Court after considering the scope of
section 227 observed that the words ’no sufficient ground
for proceeding against the accused’ clearly show that the
Judge is not merely a post-office to frame charge at the
behest of the prosecution but he has to exercise his judi-
cial mind to the facts of the case in order to determine
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that a case for trial has been made out by the prosecution.
In assessing this fact it is not necessary for the court to
enter into the pros and cons of the matter or into weighing
and balancing of evidence and probabilities but he may
evaluate the material to find out if the facts emerging
therefrom taken at their face-value establish the ingredi-
ents constituting the said offence. After considering the
case law on the subject, this Court deduced as under:
"(1) That the Judge while considering the question of fram-
ing the charges under section 227 of the Code has the un-
doubted power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case
against the accused has been made out.
(2) Where the materials placed before the court disclose
grave suspicion against the accused which has not been
properly explained the Court will be fully justified in
framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to
lay down a rule of universal application. By and large
however if two views are equally possible and the Judge is
satisfied that the evidence adduced before him while giving
rise to some suspicion but not grave suspicion against the
accused he will be fully within his right to discharge the
accused.
(4) That in exercising his jurisdiction under section 227 of
the Code of Judge which (sic) under the present Code is a
senior and experienced Judge cannot act merely as a Post
office or a mouth-piece of the prosecution, but has to con-
643
sider the broad probabilities of the case, the total effect
of the evidence and the documents produced before the Court,
any basic infirmities appearing in the case and so on. This
however does not mean that the Judge should make a roving
enquiry into the pros and cons of the matter and weigh the
evidence as if he was conducting a trial."
Again in Supdt. & Remembrancer of Legal Affairs, West
Bengal v. Anil Kumar Bhunja & Ors., [1979] 4 SCC 274 this
Court observed in paragraph 18 of the Judgment as under:
"The standard of test, proof and judgment which is to be
applied finally before finding, the accused guilty or other-
wise, is not exactly to be applied at the stage of Section
227 or 228 of the Code of Criminal Procedure, 1973. At this
stage, even a very strong suspicion rounded upon materials
before the Magistrate which leads him to form a presumptive
opinion as to the existence of the factual ingredients
constituting the offence alleged, may justify the framing of
charge against the accused in respect of the commission of
that offence".
From the above discussion it seems well-settled that at the
Sections 227-228 stage the Court is required to evaluate the
material and documents on record with a view to finding out
if the facts emerging therefrom taken at their face-value
disclose the existence of all the ingredients constituting
the alleged offence. The Court may for this limited purpose
sift the evidence as it cannot be expected even at that
initial stage to accept all that the prosecution states as
gospel truth even if it is opposed to common sense or the
broad probabilities of the case.
The Act is a penal statute. Its provisions are drastic
in that they provide minimum punishments and in certain
cases enhanced punishments also; make confessional state-
ments made to a police officer not below the rank of a
Superintendent of Police admissible in evidence and mandates
raising of a rebuttable presumption on proof of facts stated
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in clauses (a) to (d) of sub-section (1) of Section 21.
Provision is also made in regard to the identification of an
accused who is not traced through photographs. These are
some of the special provisions introduced in the Act with a
view to controlling the menace of terrorism. These provi-
sions are a departure from the ordinary law since the said
law was found-to be inadequate and not sufficiently effec-
tive to deal with the special class of offenders indulging
in
644
terrorist and disruptive activities. There can, therefore,
be no doubt that the Legislature considered such crimes to
be of an aggravated nature which could not be checked or
controlled under the ordinary law and enacted deterrent
provisions to combat the same. The legislature, therefore,
made special provisions which can in certain respects b.e
said to be harsh, created a special forum for the speedy
disposal of such cases, provided for raising a presumption
of guilt, placed extra restrictions in regard to the release
of the offender on bail, and made suitable changes in the
procedure with a view to achieving its objects. It is well-
settled that statutes which impose a term of imprisonment
for what is a criminal offence under the law must be strict-
ly construed. In Usmanbhai Dawoodbhai Memon & Ors. v. State
of Gujarat, [1988] 2 SCC 271 this Court in paragraph 15 of
the judgment observed as under:
"The Act is an extreme measure to be resorted to when the
police cannot tackle the situation under the ordinary penal
law. The intendment is to provide special machinery to
combat the growing menace of terrorism in different parts of
the country. Since, however, the Act is a drastic measure,
it should not ordinarily be resorted to unless the govern-
ment’s law enforcing machinery fails."
To put it differently the ratio of the decision is that the
provisions of the Act need not be resorted to if the nature
of the activities of the accused can be checked and con-
trolled under the ordinary law of the land. It is only in
those cases where the law enforcing machinery finds the
ordinary law to be inadequate or not sufficiently effective
for tackling the menace of terrorist and disruptive activi-
ties that resort should be had to the drastic provisions of
the Act. While invoking a criminal statute, such as the Act,
the prosecution is duty bound to show from the record of the
case and the documents collected in the course of investiga-
tion that facts emerging therefrom prima facie constitute an
offence within the letter of the law. When a statute pro-
vides special or enhanced punishments as compared to the
punishments prescribed for similar offences under the ordi-
nary penal laws of the country, a higher responsibility and
duty is cast on the Judge to make sure there exists prima
facie evidence for supporting the charge levelled by the
prosecution. Therefore, when a law visits a person with
serious penal consequences extra care must be taken to
ensure that those whom the legislature did not intend to be
covered by the express language of the statute are not roped
in by stretching the language of the law. But that does not
mean that the judicial officer called upon to decide whether
645
or not a case for framing a charge under the Act is made out
should adopt a negative attitude. He should frame a charge
if the prosecution shows that the material placed on record
and the documents relied on give rise to a strong suspicion
of the accused having committed the crime alleged against
him.
We may now proceed to apply the law stated above to the
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facts of the present case. The prosecution case against the
five accused persons is that they formed an unlawful assem-
bly, killed Raju and injured keshav ’with intent to strike
terror in the people or any section of the people’ i.e. the
residents of the locality, by the use of lethal weapons such
as knives and iron-rods and thereby committed offences
punishable under Section 3(1) of the Act read with the
offences under the Penal Code and the Bombay Police Act.
When the complaint was lodged by the injured Keshav on 12th
July, 1989 no offence under section 3(1) of the Act was
registered. The offence under section 3(1) of the Act was
introduced for the first time on 29th July, 1989. That means
that between 12th July, 1989 and 29th July, 1989 the Inves-
tigating Officer collected evidence which enabled him to
register an offence under section 3(1) of the Act. When the
first bail application was disposed of on 2nd September,
1989, the Designated Court came to the conclusion that prima
facie section 3(1) of the Act had no application. In taking
that view the Designated Court examined the statements of
witnesses on which reliance was placed to support the prose-
cution case that section 3(1) of the Act was attracted. It
may be stated that accused Santosh Rathod runs a cycle
repair shop. On the day previous to the occurrence the
deceased Raju had gone to the cycle shop as his tube was
punctured. At that time accused Jitendra and some others
were present at the cycle shop and in their presence accused
Jitendra is alleged to have stated as under:
"Presently Raju and Keshav are having dominance in the town.
We would become dadas of the town upon taking lives out of
them. Then there would not be any rival to us in this town.
Upon commission of murder of Raju and Keshav on account of
tenor the people would be scared."
This is unfolded in the statements of Raju Narain, Sukharam
Shinde and Bhau Saheb. Thus according to the prosecution the
genesis of the crime was to gain supremacy in the underworld
by eliminating the members of the rival gang. Ram Lokhande
speaks about the incident in question and states that he had
heard the assailants stating that on the elimination of Raju
and Keshav they will become the Dadas and
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no one will dare to raise his voice against them. Bhika
spoke about the previous incident on the same day at about
11.30 a.m. which shows that there was rivalry between the
two gangs. Mr. Masodkar, the learned counsel for the State
Government, as well as the appellant of criminal Appeal No.
703/89, therefore, contended that the acts of violence were
perpetrated with intent to strike terror in the people at
large and in particular the residents of the locality in
which the crime was committed. Our attention was also drawn
to certain statements of witnesses to the effect that some
of the accused persons were related to the members of the
Shiv Sena party. The Designated Court came to the conclusion
that the material placed before it and the statements re-
corded by the Investigating Officer did not disclose the
commission of an offence under Section 3(1) of the Act.
According to the Designated Court the intention of the
accused persons was not to strike terror in the people or a
section of the people but only to eliminate Raju and Keshav
with a view to gaining supremacy in the underworld. The
learned Judge presiding-over the Designated Court then
proceeds to add as under:
"True it is that few people might have been terror-striken
and terror might have been the fall out of naked act, but to
strike the terror amongst people was not the object of this
naked act. If at all people are getting terror-striken, it
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is those few people who live by the crime and not the people
law abiding majority of citizens. Going by these statements
there is nothing more to this crime than a strife between
two warring factions staking claim to the supremacy of
underworld."
The learned Judge also came to the conclusion that there was
nothing on record to show that the Government’s law enforc-
ing machinery had failed and it had become necessary to
resort to the drastic provisions of the Act with a view to
combating the menace of terrorism.
We have carefully considered the statements of the
witnesses on which the prosecution relies in support of its
contention that the accused had committed an offence under
section 3(1) of the Act. We think that the Designated Court
was right in coming to the conclusion that the intention of
the accused persons was to eliminate Raju and Keshav for
gaining supremacy in the underworld. 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 dare to
oppose them cannot constitute an offence under section 3(1)
of the Act. That may indeed
647
be the fail out of the violent act but that cannot be said
to be the intention of the perpetrators of the crime. It is
clear from the statement extracted earlier that the inten-
tion of the accused persons was to eliminate the rivals and
gain supremacy in the underworld so that they may be known
as the bullies of the locality and would be dreaded as such.
But it cannot be said that their intention was to strike
terror in the people or a section of the people and thereby
commit a terrorist act. It is clear that there was rivalry
between the party of the accused on the one hand and Raju
and Keshav on the other. The former desired to gain suprema-
cy which necessitated the elimination of the latter. With
that in view they launched an attack on Raju and Keshav,
killed the former and injured the latter. Their intention
was clearly to eliminate them and not to strike terror in
the people or a section of the people. It would have been a
different matter if to strike terror some innocent persons
were killed. In that case the intention would be to strike
terror and the killings would be to achieve that objective.
In the instant case the intention was to liquidate Raju and
Keshav and thereby achieve the objective of gaining suprema-
cy in the underworld. The consequence of such violence is
bound to cause panic and fear but the intention of commit-
ting the crime cannot be said to be strike terror in the
people or any section of the people. We are, therefore, of
the view that the Designated Court was fully justified in
taking the view that the material placed on record and the
documents relied on did not prima facie disclose the commis-
sion of the offence punishable under section 3(1) of the
Act.
It was next contended by the learned counsel for the
State of Maharashtra that under section 12(1), when trying
the offence under the Act, the Designated Court was entitled
to try any other offence with which the accused were charged
at the same trial since the offences punishable under the
Penal Code and the Bombay Police Act were committed in the
course of the same incident. Section 12(.1) no doubt empow-
ers the Designated Court to try and offence punishable under
any other statute along with the offence punishable under
the Act if the former is connected with the latter. That,
however, does not mean that even when the Designated Court
comes to the conclusion that there exists no sufficient
ground for framing a charge against the accused under sec-
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tion 3(1) of the Act it must proceed to try the accused for
the commission of offences under other statutes. That would
tantamount to usurping jurisdiction. Section 18, therefore,
in terms provides that where after taking cognizance of any
offence the Designated Court is of the opinion that the
offence is not triable by it, it shall, notwithstanding that
it has no jurisdiction to try such offence,
648
transfer the case for the trial of such offence to any court
having jurisdiction under the Code. Therefore, when the
Designated Court came to the conclusion that there was no
prima facie evidence to frame a charge under section 3(1) of
the Act, it was justified in transferring the case to the
Court of Sessions, Ahmadnagar, which alone had jurisdiction
under the Code. Once the Designated Court came to the con-
clusion that the evidence was not sufficient to frame a
charge under section 3(1) of the Act, the Designated Court
had no alternative but to resort to Section 18 and transfer
the case to the competent court under the Code. We, there-
fore, do not see any merit in the contention of the learned
counsel for the State of Maharashtra that even after the
Designated Court came to the conclusion that no ground was
made out under section 3(1) of the Act, it was duty bound by
virtue of section 12(1) of the Act to proceed with the trial
for the other offences under the Penal Code and the Bombay
Police Act. We think the course adopted by the Designated
Court in transferring the case to the Sessions Court in
clearly in keeping with section 18 of the Act.
Before we part we may state that Mr. Lalit the learned
counsel for the accused tried to urge before us that the
provisions of the Act were intended to deal with political
terrorism intended to undermine the security of the State
and not to ordinary law and order problems. We do not con-
sider it necessary to go into this larger question because,
in our opinion, the Designated Court was fight in coming to
the conclusion that this was a case of inter-gang rivalry
not attracting Section 3(1) of the Act.
In the above view that we take all the three appeals
fail and are dismissed. Mr. Lalit the learned counsel for
the accused stated that since the High Court has directed
expeditious disposal of the case he would not press the
special leave petition directed against the High Court’s
order refusing bail. In view of the said statement, the
Special leave petition No. 2459/89 will stand disposed of as
not pressed. We may, however, state that the Sessions Court
to which the case stands transferred should endeavour to
complete the trial as early as possible, preferably within
four months from the date of receipt of this Court’s order.
T.N.A. Petition disposed
of.
649