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The Indian Penal Code
The Unlawful Activities (Prevention) Act, 1967
The Code Of Criminal Procedure, 1973
Article 226 in The Constitution Of India 1949
Arms Act

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Bombay High Court
Rafiq Abid Patel And Others Etc. vs The Inspector Of Police, ... on 22 July, 1991
Equivalent citations: 1992 CriLJ 394
Author: M S Manohar
Bench: B Srikrishna, S V Manohar

JUDGMENT

Mrs. Sujata Manohar, J.

1. The petitioners in both these writ petitions are co-accused in C.R. No. I-43 of 1991 registered at the Kashimira Police Station, Taluka Thane, District Thane. These petitions are for quashing the application of the provisions of Ss. 5 and 6 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter called "the TADA Act") to the accused in CR No. I-43/91. The petitioners have also prayed for striking down S. 5 read with S. 2(f) of the TADA Act, as being ultra vires the Constitution of India. This prayer, however, is not pressed by Mr. Chitnis, learned Advocate for the petitioners in these petitions. He has confined his submissions in these writ petitions to setting aside the application of Ss. 5 and 6 of the TADA Act to the petitioners. The petitions have subsequently been amended in view of the documents dated 24-7-1991. The petitioners have now also challenged the application of S. 3 of the TADA Act to them.

2. These petitions are filed under Art. 226 of the Constitution. The relevant facts in respect of C.R. No. I-43 of 1991 registered with the Kashimira Police Station are as follows :

3. The complainant, Raju Patel, carries on business as a supplier of building material. He has alleged that on 3rd April 1991 one Asif Gulam Rasool Patel and his brothers threatened the partners of the complainant that their lorries carrying building material would not be allowed to ply. The complainant has alleged that these persons, at about 10-30 a.m. stopped his lorry MCY 1111, which was carrying stones from Vasai to Mira Road, Asif and his bother assaulted the driver of the truck. On learning about this incident from his driver, the complainant registered a complaint with the Kashimira Police Station (Cr. No. 42 of 1991). He also took the help of one Hitendra Thakur, who is an M.L.A. of the locality. On the evening of 3rd April 1991, the complainant, his partners, Hitendra Thakur MLA, and the bodyguard of Thakur were returning from the police station when their vehicles were stopped by Asif Patel and a group of other persons (including the petitioners) near the house of Asif Patel. It is alleged that when the complainant got down from his van he noticed that Asif Patel had a revolver in his hand whereas the other persons, about 25 to 31 in number, were armed with stones and soda water bottles. The complainant snatched the revolver from the hands of Asif Patel and handed it over to the constable, who was the bodyguard of Thakur. At the same time, Kaka Patel, a brother of Asif Patel attempted to assault the complainant with a sword. This resulted in a small injury on the left hand thumb of the complainant. The other assailants threw soda water bottles and stones at the complainant and his group. With a view to dispersing the crowd, two rounds were fired in the air by the bodyguard of Hitendra Thakur. A complaint regarding this incident was made by Raju Patel at the Kashimira Police Station being Cr. No. I-43 of 1991. On the basis of this complaint the police has registered an offence u/Ss. 307, 341, 147, 148, 149, 324, 336, 427 of the Indian Penal Code and Ss. 25(1)(a) and 27 of the Arms Act.

4. On 12th April 1991 the Circle Police Inspector, Kashimira Camp, has informed the Designated Judge, TADA Court, Pune, that in continuation with Crime No. I-43/1991 the provisions of Ss. 5 and 20 have been applied to all the accused as from 12th April 1991 on account of the fact that Asif Gulam Patel was found with a revolver in a notified area. In the affidavit which is filed by the respondents before us also it is stated that the provisions of Ss. 5 and 6 of the TADA Act have been applied to all the accused in Crime No. I-43 of 1991 including the petitioners.

5. Mr. Chitnis, learned Advocate for the petitioners, has urged before us that looking to the circumstances as set out in the FIR no case is made out for the application of the TADA Act to the petitioners. Before, however, examining this contention, it is necessary to deal with the submission of Mr. Lambay, Additional Public Prosecutor, that we need not examine the merits of this contention as the petitioners have an alternative remedy of applying before the Designated Court u/S. 18 of the TADA Act. Now, S. 18 of the TADA Act provides "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 trial of such offence 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 it has taken cognizance of the offence." Mr. Lambay submits that in view of this provision we should not exercise our powers under Art. 226 of the Constitution to entertain these writ petitions.

6. It is submitted by Mr. Chitnis, learned Advocate for the petitioners, that the provisions of S. 18 of the TADA Act do not furnish an adequate alternative remedy to the petitioners. He points out that the power to transfer cases u/S. 18 of the TADA Act can be exercised by the Designated Court only after it takes cognizance of the offence. During the pendency of investigation, the Designated Court has no power to take any action u/S. 18 of the TADA Act. In the meanwhile, on account of the application of the TADA Act to the accused, the provisions of S. 167 of the Criminal Procedure Code, as modified by the TADA Act, apply to the accused. Pending investigation they can be remanded to custody for a period up to one year. S. 438 of the Criminal Procedure Code also does not apply. U/S. 20(8) of the TADA Act, no person accused of an offence under the TADA Act shall if in custody be released on bail or on his own bond unless (a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (b) where the Public Prosecutor opposes the application, 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. These conditions are in addition to the limitations prescribed by the Criminal Procedure Code for granting bail. The application of the TADA Act during the pendency of investigation, therefore, seriously affects the accused persons. In an appropriate case, the High Court can, therefore, intervene even at the stage of investigation to set aside the application of the TADA Act to the accused if no case whatsoever is made out for applying it. In such a situation to refer the petitioners to the Designated Court u/S. 18 of the TADA Act would not provide an adequate remedy.

7. These submissions do have considerable force. Chapter XIV of the Code of Criminal Procedure deals with conditions requisite for initiation of proceedings. Under S. 190, subject to the provisions of this Chapter, any Magistrate of the first class may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other that a police officer or upon his own knowledge, that such offence has been his committed. U/S. 2(r) of the Code of Criminal Procedure, as "police report" means a report forwarded by a police officer to a Magistrate under sub-sec. (2) of S. 173. U/S. 173(2) the report of a police officer has to be submitted only after completion of investigation and it has to be made in the manner and form prescribed under sub-sec. (2). This report is submitted when the investigation is complete, Chapter XVI deals with commencement of proceedings before Magistrate. U/S. 207, in any case where the proceeding has been instituted on a police report, the Magistrate shall furnish to the accused, free of cost, a copy of the police report (charge-sheet) and all other documents as set out in that Section. The cognizance of any offence, therefore, can be taken by the Court, under the scheme of the Code of Criminal Procedure, after investigation is complete. In fact, taking cognizance means judicial application of mind to the facts as disclosed, inter alia, in the police report for taking further action. These provisions of the Code of Criminal Procedure are equally applicable to the Designated Court under the TADA Act save and except to the extent to which they are overridden or modified by the TADA Act. (See in this connection provisions of Ss. 7(3) and 14 of the TADA Act.) S. 18 of the TADA Act would, therefore, be attracted only at the State where the Designated Court takes cognizance of an offence i.e. after the investigation is complete and a police report, generally known as a charge-sheet, is filed. The contention of Mr. Lambay that the Designated Court can exercise its powers u/S. 18 even during the pendency of investigation has no merit.

8. In these circumstances, if the investigation which is being conducted is challenged by a person affected on the ground that no offence is disclosed under the TADA Act, as in the present case, or on any other adequate ground, we do not see any reason why the High Court cannot, in a suitable case, examine this contention in exercise of its powers under Art. 226.

9. In the case of State of West Bengal v. Swapan Kumar Guha and State of West Bengal v. Sanchaita Investments, , the Supreme Court has observed as follows (at p. 842 of Cri LJ) :

"Whether an offence into which an investigation is made or to be made is disclosed or not must necessarily depend on the facts and circumstances of each particular case and in considering that question the court has mainly to take into consideration the complaint or FIR. On a consideration of all the relevant materials, the Court has to come to the conclusion whether an offence is disclosed or not. If on such consideration, the court is satisfied that an offence is disclosed, the court will normally not interfere with the investigation into the offence and will generally allowed the investigation into the offence to be completed for collecting material for proving the offence. If, on the other hand, the court is satisfied that no offence is disclosed, it will be the duty of the court to interfere with any investigation and to stop the same to prevent any king of uncalled for and unnecessary harassment to an individual."

10. In the case of S. N. Sharma v. Bipen Kumar Tiwari, , the Supreme Court said that though the Code of Criminal Procedure gives to the police unfettered power to investigate all case where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the powers of the High Court under Art. 226 of the Constitution under which, it the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers.

11. Our attention was drawn to a judgment of the Division Bench of this Court (Kantharia and Dani, JJ.) dated 25th April 1991 in Criminal Writ Petn. No. 458 of 1991. In the case before the Division Bench the petitioner along with others had been charged by the police with commission of offences u/Ss. 143, 144, 147, 148, 149, 332, 427, 436 and 307 of the Indian Penal Code read with S. 5 of the TADA Act, 1987. The Division Bench by its short judgment has said that after taking cognizance of an offence u/S. 14 of the TADA Act, the Designated Court can, u/S. 18 of the TADA Act, transfer the case to the regular court and the petitioner can approach the Designated Court for this purpose and ask for appropriate relief. The Division Bench refused to exercise its jurisdiction under Art. 226 of the Constitution.

12. The points which have been urged before us do not appear to have been urged before the Division Bench or considered by it, namely that it is only at the stage of taking cognizance of the offence after filing of the charge-sheet that the Designated Court can exercise its powers u/S. 18 of the TADA Act and till then, if the investigation has taken a considerable period of time, as in the present case, and if no prima facie case is disclosed for applying the provisions of the TADA Act, the Court can exercise its powers under Art. 226 of the Constitution to entertain a petition. In the present case, does the material which is before us and the FIR relating to C.R. No. I-43 of 1991, disclose any offence by the petitioners which would attract the application of the provision of Ss. 5 and 6 of the TADA Act ?

13. The relevant provisions of S. 5 of the TADA Act are as follows :

"Where any person is in possession of any arms and ammunition ..... or bombs, dynamite or other explosive substances unauthorisedly in a notified area, he shall, notwithstanding anything contained in any other law for the time being in force, by punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine."

In the present case the crime did take place in a notified area. The FIR in connection with this crime does not disclose that the petitioners or any of them were in possession of arms and ammunition or bombs, dynamite or other explosive substances. The only person in whose hand a revolver was found was Asif Patel. The provisions of S. 5 of the TADA Act are, therefore, clearly not attracted in the case of the petitioners.

14. The relevant provisions of S. 6 of the TADA Act are as follows :

"If any person with intent to aid any terrorist or disruptionist, contravenes any provision of, or any rule made under the Arms Act, 1959 ...... the Explosives Act, 1884, ..... the Explosive Substances Act, 1908 ...... or the Inflammable Substances Act, 1952, he shall, notwithstanding anything contained in any of the aforesaid Acts or the rules made thereunder, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and he shall also be liable to fine."

There is no material in the FIR relating to CR No. I-43 of 1991 or any subsequent investigation to indicate even prima facie that the petitioners had contravened any provisions of either the Arms Act or the Explosives Act or the Explosive Substances Act or the Inflammable Substances Act. The question therefore for contravening these Acts with intent to aid any terrorist or disruptionist does not arise. Ss. 5 and 6 of the TADA Act are clearly not attracted at all to the petitioners in the present case. In fact Mr. Lambay, Additional Public Prosecutor, has fairly conceded before us that despite what is stated in the affidavit filed on behalf of the respondents, the provisions of Ss. 5 and 6 of the TADA Act are not attracted so far as the petitioners are concerned.

15. However, we must refer to some developments which have taken place, in this matter after the judgment was part-delivered on Friday, 22nd July 1991. At this stage it was clear that Ss. 5 and 6 were not applicable to the petitioners. When this matter was next called out on 28th July 1991, our attention was drawn to an order dated 24th July 1991 in the circumstances which are set out by us in our order of that date. It seems that in the interregnum it was decided to apply S. 3 of the TADA Act to the accused in CR No. I-43 of 1991. The petitioners thereupon applied for an amendment of these petitions, which we permitted in the special circumstances of the present case and looking to the fact that when the respondents realised that the application of the TADA Act against the petitioners was being struck down on the ground that Ss. 5 and 6 were not attracted, an attempt was made to apply S. 3 of the TADA Act to the petitioners. The respondents have also filed a further affidavit in connection with the amendments which have been made in the petition. Though in the affidavit, which has been filed, an attempt has been made to justify the application of S. 3 of the TADA Act to the petitioners. The Additional Public Prosecutor has conceded that looking to the facts of the present case, the provisions of S. 3 cannot apply to the activities of the petitioners. In view of this concession, we are not going into the merits of the question whether the petitioners can be considered as having indulged, even prima facie, in the activities which constitute terrorist acts u/S. 3 of the TADA Act. We would, however, like to record that the conduct of the respondents in attempting to extend S. 3 of the TADA Act to the petitioners, although the FIR in CR No. I-43 of 1991 does not disclose any grounds for such an application, as conceded by the respondents themselves, is somewhat disturbing. The right to life and liberty, which is constitutionally guaranteed, is substantially eclipsed by the application of the TADA Act to an individual. It is necessary that the Act is not misused and the authorities concerned with the implementation of the TADA Act apply their minds to the facts and circumstances of the case with great care before they extend the provisions of the TADA Act to any person.

16. In the premises, the application of the provisions of Ss. 3, 5 and 6 of the TADA Act to the petitioners as the accused in CR No. I-43 of 1991 of the Kashimira Police Station, Thane District, Thane, is quashed and set aside. The respondents are restrained from carrying out any investigation against these petitioners u/Ss. 3, 5 and 6 of the TADA Act.

17. The Judge, Designated Court, Pune, by his order dated 5th July 1991, has passed an order of interim bail in respect of the petitioner in W.P. No. 598/91 on condition that the petitioners execute P.R. bond for the amount of Rs. 10,000/- each and furnish security in the like amount as also on other terms and conditions which are set out in that order. The interim bail period has been extended up to 3rd August, 1991. Bail has been granted only to the petitioners in Criminal Writ Petition No. 598 of 1991. Bail has not been granted to the petitioner in Criminal Writ Petition No. 731 of 1991, as his application for bail is still pending. In these circumstances we extend the bail period in the case of the petitioners in Criminal Writ Petition No. 589 of 1991 up to 12th August 1991 on the same terms and conditions as granted by the Judge, Designated Court, Pune. As far as the petitioner in Criminal Writ Petition No. 731 of 1991 is concerned, we grant him interim bail on the same terms and conditions as the petitioners in Criminal Writ Petition No. 598 of 1991 up to 12th August 1991. This is to enable the petitioners in these petitions to apply for bail before the Sessions Court, Thane, in view of the fact that the provisions of the TADA Act are not applicable to the petitioners. Rule is made absolute accordingly.

18. Certified copy of this judgment be supplied expeditiously.

19. Rule made absolute.