|
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1778 OF 2008
Manjit Singh @ Mange .............. Appellant
Versus
CBI, through its S.P. ..............Respondent
WITH
CRIMINAL APPEAL NO. 1826 OF 2008
Om Prakash Shrivastava @ Babloo ................... Appellant
Versus
State of U.P. through SP, CBI ..............Respondent
WITH
CRIMINAL APPEAL NO. 1844 OF 2008
K.K. Saini .............. Appellant
Versus
State of UP, through S.P., CBI, ................. Respondent
1
WITH
CRIMINAL APPEAL NO. 1336 OF 2009
State of U.P. through S.P., CBI .............. Appellant
Versus
Om Prakash Shrivastava @ Babloo ..............Respondent
WITH
CRIMINAL APPEAL NOS. 1347-1348 OF 2009
State of U.P. through S.P.,CBI .............. Appellant
Versus
K.K. Saini and Anr. ........Respondents
JUDGMENT
H.L. Dattu, J.
(1) These appeals are preferred against the common judgment and
order passed by the learned Sessions Judge, Designated Court
(TADA), Kanpur dated 30.9.2008 in TADA Crl. Case No.3 of
2
1994 (State vs. K.K. Saini), TADA Crl. Case No. 3A of 1994
(State vs. Manjit Singh @ Mange) and TADA Crl. Case No.1 of
1995 (State vs. Om Prakash Shrivastava @ Babloo). By the
impugned judgment of conviction and order of sentence, K.K.
Saini, Manjit Singh@ Mange (in short, "Mange") and Om
Prakash Shrivastava @ Babloo (in short, "Babloo") have been
convicted for offence punishable under Section 302 IPC,
Section 302 read with Section 34 IPC and Section 302 read
with Section 120B IPC respectively. They have been sentenced
to undergo imprisonment for life and to pay fine of `10,000/-
each in respect of these offences and in default, undergo
rigorous imprisonment for a period of six months each. K.K.
Saini and Mange are both acquitted of charges under Sections
3(2) and 3(3) read with Section 3(1) of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 [hereinafter
referred to as, "TADA Act"]. All the sentences were directed
to run concurrently.
(2) The accused have filed appeals under Section 19 of the TADA
Act against the impugned judgment and order passed by the
Designated Court (TADA), Kanpur. State of Uttar Pradesh
3
through CBI has also filed appeals against the judgment and
order passed by the Designated Court (TADA) acquitting the
accused persons for the offences under Sections 3(2) and 3(3)
read with Section 3(1) of the TADA Act and further for the
enhancement of sentence imposed under the provisions of IPC
to death sentence in view of the seriousness of the offence and
the purpose for which it was carried out.
(3) The prosecution case in brief is as follows :-
Shri L.D. Arora, Additional Collector of Customs, Allahabad
was assassinated on 24.03.1993 at about 07-07.15 p.m. in the
area of P.S. Cantonment, Allahabad. The nephew of the
deceased Dr. Satish Arora (PW-2) had lodged the First
Information Report at P.S. Cantonment, Allahabad at 20.15
p.m. According to his report, on 24.03.1993, Shri L.D. Arora
(Deceased) reached his house at HIG flat No.9, ADA Colony,
Circular Road, Allahabad by his car. He had gone to his
uncle's house on 24.03.1993 at about 07-07.15 p.m. He saw his
uncle's car parked at the same place where he used to park his
car regularly. After knocking the door, he had entered his
uncle's house. Soon after his arrival, the neighbour told him
4
that something has happened to his uncle. He immediately
rushed to the place where his uncle had parked his car. Upon
arrival at the spot, he saw his uncle was lying unconscious on
the driving seat in a pool of blood. He immediately took his
uncle to Swaroop Ram Medical Hospital with the help of
people from the neighborhood. At the hospital, his uncle was
declared brought dead. The investigation was initially taken up
by the Cantonment Police Station, Allahabad.
(4) The prosecution has further stated that the post mortem of the
dead body was carried out by Dr. A.K. Shrivastav of MLN
Hospital on 25.03.1993, who prepared a post mortem report,
which was duly countersigned by Dr. S.L. Diwan, Senior
Surgeon of the hospital. The post mortem report revealed that
there were three entry wounds caused by fire arm and
corresponding three exit wounds on the upper parts of the body
below the pinna of right ear, below and behind the tip of right
mastoid procure and the last was 2 cms below it. The cause of
death was ascertained to be ante-mortem head injuries caused
by bullets. The time of the death was ascertained to be 7.55
p.m. on 24.03.1993.
5
(5) When the investigation by the State Police was still going on,
the Department of Personnel and Training, Ministry of
Personnel, Public Grievances and Pension, Government of
India vide Notification No.228/48/93-A.V.D.-JJ dated
12.07.1993 issued with the consent of the Government of Uttar
Pradesh, entrusted the investigation of the case to CBI, pursuant
to which R.C. (10) (S)/93-S.J.U.V/C.B.I.,1I/New Delhi dated
13.07.1993 under Section 302 of IPC was registered in SIC.II
Branch of CBI. During the course of investigation, offences
under Section 120-B of IPC and Sections 3(2) and 3(3) read
with Section 3(1) of the TADA Act were added with the
permission of Superintendent of Police, CBI, New Delhi.
(6) The prosecution further states that one Mohd. Dosa, Tahir Shah
@ Tappu and Babloo entered into criminal conspiracy to
eliminate L.D. Arora to strike terror among the customs
officials with a view from preventing anyone from passing on
information about their smuggling activities or their
involvement in the Bombay Blasts on March 12, 1993.
Pursuant to this conspiracy hatched, Babloo instructed K.K.
Saini and Mange on 20.03.1993, who were with him in Krishna
6
Nagar, Nepal, to assassinate the deceased L.D. Arora. Mange
was further informed that one Alimuddin @ Baba would be
available at Hotel Finero, Allahabad. Babloo gave them `10-
12,000/-, one 9 mm Pistol, 12 cartridges and a Maruti Car,
bearing registration No. DNH 8440, to accomplish the task.
Thereafter, K.K. Saini and Mange left Nepal with the above
mentioned fire arms in the said car. They reached Allahabad
and checked into the above mentioned Hotel Finero in Room
No.7 and entered their names as A.K. Singh and Harjeet Singh
respectively in the hotel register. Thereafter, Alimuddin also
checked into Room No. 5 of the same hotel along with a lady
named Smt. Arshi. On the same day, there was a meeting
between K.K. Saini, Mange and Alimuddin in Room No.7 to
chalk out the strategy to kill the deceased on the morning of
24.03.1993, i.e. the next day. All three of them reached the
office and residence of the deceased on a scooter and conducted
a thorough survey. Babloo further contacted K.K. Saini over
telephone installed at the hotel in Allahabad, instructing him to
kill the deceased that very day as he might leave for Bombay on
the next day to disclose information he had gathered regarding
7
the Mumbai serial blasts of 1993. Persuant to these
instructions, at around 6.45 p.m., K.K. Saini, Mange and
Alimuddin waited near the ADA Colony, Circular Road,
Allahabad for the arrival of the deceased in his car. As soon as
the car of the deceased was spotted in the vicinity, all three of
them took up positions and when the deceased entered the ADA
Colony through the main gate in the eastern boundary wall and
was about to park his car, K.K. Saini took out his pistol and
fired three shots at the deceased, as a result of which, the
deceased sustained fatal injuries and collapsed in his seat.
(7) It is further case of the prosecution that during the course of the
investigation, they recovered three empty cartridges and one
lead from the car of the deceased and one lead from the ground,
where the car was parked. The Ballistic Expert of F.S.L.,
Lucknow opined that the three empty cartridges were fired from
the same 9 mm pistol. Investigations disclosed that Mohd.
Dosa had entered into criminal conspiracy with Tahir Shah and
Babloo to kill the deceased L.D. Arora so that their
involvement in the Bombay Bomb Blasts were not revealed.
After killing the deceased, the information was relayed to
8
Babloo and later, Mange and K.K. Saini returned to Nepal on
25.03.1993 by crossing the Indo-Nepal border at Krishna Nagar
by paying an amount of Rs. 600/- in Nepal currency towards
octroi/tax for vehicle No.DNH 8440. The course of
investigation further led to information that one Virendra Pant
and Sanjay Khanna met Babloo in Al-Rigu Apartments in
Dubai where Babloo made an extra judicial confession that he
had got the deceased killed through the concerned people as he
had information about the activities of Mohd. Dosa and Tahir
Shah especially in the smuggling of RDX, weapons and
explosives used in the Bombay Bomb Blasts. For this job, he
was paid `6,00,000/- by Tahir Shah, out of which `50,000/- was
given to K.K. Saini.
(8) Prosecution further states that K.K. Saini, while in police
custody, during the period from 06.04.1994 to 04.05.1994 made
a confessional statement under Section 15 of the TADA Act,
wherein he confessed his own involvement as well as
involvement of others in the killing of L.D. Arora. Based on
his confession and information, the Maruti Car bearing No.
DNH 8440, the vehicle used in the commission of the offence,
9
was also recovered. Later, K.K. Saini refused to join the Test
Identification Parade and his refusal was recorded by Shri
Rakesh Kapoor, Metropolitan Magistrate, Delhi. The
confessional statement of Mange was also recorded on
11.07.2001 by S.P., CBI, Delhi. Accordingly, charge sheet
against K.K. Saini and Mange was filed in the Designated
Court both under the provisions of the IPC and the TADA Act
on 26.11.2001, which was registered as Criminal Case No.3 of
1994 and Criminal Case No.3A of 1994. It is also relevant to
notice that Babloo was arrested in Singapore on 21.04.1995 in
response to look out notice issued by Interpol, India. On the
request of Govt. of India, he was extradited by the Govt. of
Singapore. The Extradition Treaty signed between the two
countries provided that the person being extradited could only
be tried for criminal acts recognized as offences in both the
countries. Since, there was no law in Singapore which
corresponds to the TADA Act, though Babloo was extradited,
he could only be tried under Section 120-B and 302 of the IPC
and, therefore, no charge under Section 3 of the TADA Act
was framed against Babloo. After completion of investigation,
10
the investigating agency filed charge sheet before the
Designated Court (TADA) for the offences under Section 302
IPC against K.K. Saini and Mange for offences under Section
302 read with Section 34 of the IPC and against Babloo under
Section 302 read with Section 120B IPC. K.K. Saini and Mange
were also charged under Section 3(2) and 3(3) read with
Section 3(1) of the TADA Act. To prove the charges, the
prosecution had examined 88 witnesses in the leading criminal
case No. 3 of 1994 and 85 witnesses in criminal case No. 3A of
1994 during the trial and relied upon various documents
including confessional statements recorded during
investigation. All the accused persons abjured their guilt and
pleaded innocence and stated that they have been falsely
implicated in this case.
(9) The Designated Court (TADA) had framed nearly eleven issues
for its consideration. The Court, relying on Section 12 of
TADA Act, has held that Babloo was rightly charged for an
offence under Section 302 read with Section 120B of the IPC
and tried him jointly with the accused K.K. Saini and Mange
and for technical reason, he could not be charged under the
11
TADA Act. The Court has further held that since the
investigation was handed over to Superintendent of Police,
CBI, by the State of Uttar Pradesh by issuing notification, prior
approval from S.P., CBI, was sufficient compliance of Section
20A of the TADA Act. On the issue of the admissibility of the
confessional statement of the accused K.K. Saini and Mange
against the co-accused Babloo, the learned Designated Judge,
after noticing the language employed in Section 12 and Section
15 of the TADA Act, has concluded that merely due to
technicality in the Extradition Treaty, Babloo was not charged
under TADA Act. However, in the light of the provisions and
the decisions of this Court, the confessional statements were
held to be admissible against the co-accused even when he was
not charged under the TADA Act, but was tried jointly for
offences under other law by the Designated Court (TADA).
The Designated Court (TADA) did not find any merit in the
contention that the confession statements of K.K.Saini and
Mange were not recorded voluntarily. The Designated Judge
(TADA), after carefully considering the evidence on record, has
held that the prosecution has successfully proved the recovery
12
of Maruti Car No. DNH 8440 on the information furnished by
K.K. Saini. As regards the issue of proving charges of
conspiracy under Section 120B of IPC, it was held that from the
facts and circumstances and prosecution evidence, it was clear
that the three accused namely, K.K. Saini, Babloo and Mange
hatched conspiracy to kill L.D. Arora and all the three accused
were involved in the conspiracy. Hence, all the three accused
were held liable for conviction for the charge under Section
120B read with Section 302 of the IPC. As regards the last issue
of proving the guilt of all the three accused and the sufficiency
of the evidence other than confessional statement, it was
observed that the prosecution has proved the same by producing
both oral and documentary evidence. The Designated Court
(TADA), after considering the material evidence on record,
including the Post Mortem Report and the statements made by
the accused persons under Section 313 of the Criminal
Procedure Code, has concluded that the prosecution has
adduced sufficient, reliable oral and documentary evidence,
which corroborates the confessional statement of both the
accused namely, K.K. Saini and Mange and further concluded
13
that there is enough evidence, other than the confessional
statement against Babloo, which proves the prosecution case in
so far as charges framed under the provisions of the IPC.
(10) We have heard Shri K.T.S. Tulsi, learned senior counsel for
Mange and Babloo and Shri Amrendra Sharan, learned senior
counsel for K.K. Saini and Shri P.P.Malhotra, learned
Additional Solicitor General for the CBI.
(11) As these appeals are preferred against the judgment and order
of learned Designated Court (TADA) under Section 19 of the
TADA Act, therefore, we have to consider these appeals both
on facts as well as on question of law for our conclusion and
decision.
(12) The learned senior counsel Shri K.T.S. Tulsi and Shri
Amrendra Sharan submitted that K.K. Saini and Mange were
charged under the TADA Act and not Babloo. It is argued that
since there was no terror caused in the society by the acts of the
accused, they cannot be charged under Section 3(1) and 3(2) of
the TADA Act and, therefore, they could only be tried for
committing offence of murder under Section 302 of the IPC.
Further, it was argued that prior approval was required to be
14
taken from the Superintendent of Police of the District, as
required under Section 20-A of the TADA Act, to try the
accused for the offences under the TADA Act and the
Superintendent of Police, CBI was not the competent authority
to give such permission. It is further submitted that the
confessional statements of K.K. Saini and Mange were
recorded in complete defiance of provisions of the TADA Act
and the rules framed thereunder and that mandatory provisions
have not been followed. Therefore, the confessional statement
is to be completely eschewed from consideration. It is also
contended that there is no sufficient and reliable evidence
against Babloo except the confessional statement of K.K. Saini
and Mange and the prosecution has therefore failed to prove the
conspiracy between the accused tried in the present case. Shri
K.T.S. Tulsi, learned senior counsel, who also appears for
Babloo, submitted that the confessional statement of the co-
accused K.K. Saini and Mange recorded under Section 15 of
the TADA Act cannot be used against Babloo as he is not
charged under the provisions of the TADA Act and also
because no prior approval from the prescribed authority, as
15
required under Section 20A of the TADA Act, had been
obtained. He also submitted that the penal provisions require to
be strictly construed. In support of his submission, the learned
senior counsel has placed reliance on several decisions of this
Court. We will make reference to the submissions and the
decisions while considering the issues raised in these appeals.
(13) Shri P.P. Malhotra, learned Additional Solicitor General,
submitted that when the investigation is transferred to the CBI,
with the consent of the State, the CBI takes over further
investigation of the case. Therefore, Superintendent of Police,
CBI, was competent to record the confession made by a person
and the same is admissible in the trial of such person for an
offence under the TADA Act. He further submits that the
aforesaid officer, before recording the confession under Section
15(1) of the TADA Act, had followed the safeguards provided
under sub Section (2) of Section 15 of the TADA Act. It is
further submitted that the confessional statement of K.K. Saini
and Mange recorded before S.P., C.B.I., was admissible in
evidence vide Section 15 of the TADA Act, which provides for
the recording of the confessional statements before the police
16
officer, not lower in the rank than Superintendent of Police, and
it is made admissible even against co-accused, abettor or
conspirator and the bar under the Evidence Act and Criminal
Procedure Code will not come into play. It was further
submitted that the confessions made by K.K. Saini and Mange
are admissible as substantive evidence against Babloo. It was
also submitted by the learned ASG that there was sufficient
evidence adduced by the prosecution to support the correctness
of the confessional statements of the two co-accused persons.
He further submitted that the Section takes special care to
ensure that no court shall take cognizance of any offence under
the Act without the previous sanction of the Inspector General
of Police or the Commissioner of Police. The safeguard so
provided under the Act would protect the rights of an accused
of any offence under the Act.
(14) The issues that would arise in these appeals filed by appellants-
accused for our consideration and decision are as under :-
(I) Whether the confessional statement of the co-
accused is admissible against Babloo, who was not
charged under the TADA Act.
17
(II) If for any reason, confession of the co-accused is
eschewed against Babloo, whether there is any
other evidence against him to sustain the
conviction and sentence under Section 302 read
with Section 120-B IPC.
(III) Since the TADA Act, being a special statute
enacted for a specific purpose and object, whether
the interpretation of provisions of the TADA Act
requires any specific mode of interpretation.
(IV) Whether there is breach of mandatory
requirements provided in Section 20A(1) of the
TADA Act while recording the commission of an
offence under the Act.
(V) Whether the conviction of K.K. Saini and Mange
for the offences under the provisions of the I.P.C.
are sustainable with the available evidence on
record.
(VI) Whether the learned Designated Judge (TADA)
was justified in acquitting all the accused persons
18
for the offences charged and tried under the TADA
Act.
Case of Babloo
(15) The object and purpose of the TADA Act is explained by this
Court in number of decisions. Therefore, it is not necessary for
us to repeat and reiterate the same. We will only notice the
relevant provisions which are necessary for the purpose of this
case.
(16) Section 12 of the TADA Act speaks of the power of the
Designated Courts with respect to other offences. By virtue of
this Section, the 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 connected with such
other offence. Sub-section (2) further empowers the Designated
Court that in the course of the trial under the TADA Act of any
offence, if it is found that the accused person has committed
any other offence under the TADA Act or any rule made
thereunder or under any other law, the Designated Court may
convict such person of such other offence and pass any
sentence authorized under this Act or such rule or such other
19
law for the punishment thereof. A Designated Court constituted
under Section 9 of the TADA Act or a transferee Designated
under Section 11 of the TADA Act is vested with the
jurisdiction to try all the offences punishable under the
provisions of the TADA Act. While trying such offence, if the
accused is charged for offence punishable under the provisions
of any other law connected with such offence, the Designated
Court has power to try the accused in such offence also during
trial, if it is found that the accused has also committed other
offence punishable under any other law, the Designated Court
can convict the accused for such offence also. The Designated
Court can pass any sentence, on conviction of the accused, as
authorized in the respective statute for punishment of such
offence.
(17) Section 15 of the TADA Act commences with a non obstinate
clause by stating that notwithstanding anything contained in the
IPC or the Evidence Act, the confession made by a person
before a police officer not lower in rank than a Superintendent
of Police and recorded by such Police Officer in writing etc.,
shall be admissible in the trial of such person, co-accused,
20
abettor or conspirator for an offence under the TADA Act or
rules made thereunder. The proviso appended to the Section
carves out an exception to the main Section. It says that the
confession made by a person accused of an offence under the
Act or the rules framed thereunder can be used against co-
accused, abettor or conspirator, provided he is charged for any
offence under the Act or the rules framed thereunder and tried
in the same case together with the accused. It was contended by
Shri K.T.S. Tulsi, that Babloo was not charged under the
provisions of the TADA Act or the rules framed thereunder.
Therefore, the confession statement made by co-accused i.e.
K.K. Saini and Mange cannot be used against Babloo and if the
confessional statement of the co-accused is eschewed, then
there is no other evidence to implicate Babloo for the offence
alleged to have been committed under the Indian Penal Code
and, therefore, the conviction and sentence imposed by the
Designated Court cannot be sustained.
(18) The main question before us is whether the confessional
statement made by K.K. Saini and Mange can be used against
co-accused Babloo in the light of the fact that Babloo was not
21
charged and tried for any offence under the TADA Act or the
rules framed thereunder.
(19) This issue was raised before the learned Designated Judge
(TADA). The learned Judge has answered the issue and in his
opinion, Babloo was not tried for offences under the TADA
Act, only due to the extradition terms that were agreed by
Union of India with Singapore Government. He has further
stated that it was only due to this technicality that Babloo was
not tried for offences under the Act, though his actions fully
justified a trial for offences under the Act. It is this reasoning
of the learned Designated Judge that was commented and taken
exception to by learned senior counsel Shri K.T.S. Tulsi. We
have already noticed that the submission of the learned senior
counsel is that confession made by the co-accused charged
under the TADA Act cannot be used against co-accused who is
not charged and tried under the TADA Act. The learned senior
counsel, while relying on the observations made by this Court
in the case of Baba Peer Paras Nath vs. State of Haryana,
(1996) 10 SCC 500, in aid of his submission, would further
contend that this Court in the case of State vs. Nalini, (1999) 5
22
SCC 253 and the Constitution Bench decision of this Court in
the case of Prakash Kumar@Prakash Bhutto vs. State of
Gujarat, (2005) 2 SCC 409, did not deal with the admissibility
of a confession statement made by an accused under the TADA
Act against co-accused not charged under the Act or the rules
framed thereunder and therefore not applicable to the facts of
the case.
(20) Shri P.P. Malhotra, learned Additional Solicitor General,
submits that all the three accused were being tried in the same
case by the Designated Court (TADA). Therefore, the
confession of the accused K.K. Saini and Mange, charged for
the offence under the TADA Act, could be used against Babloo,
who was charged for the offence under Section 302 read with
Section 120B of the IPC. The learned ASG would further
contend that Section 15 of the Act is a rule of procedure and no
one has any vested rights in the procedural provisions.
(21) We are of the view that the issue raised needs to be appreciated
in the light of several decisions of this Court and principles of
statutory interpretation. For appreciating the contention of the
learned counsel Shri K.T.S. Tulsi, firstly we need to notice the
23
provision which empowers the police officer to record the
confessional statement of the accused.
(22) Section 15 of the TADA Act was amended by Act No. 43 of
1993 with effect from 22.05.1993. By this amendment, not only
some changes are brought in the main Section but also the
proviso is added to sub-section (1) of Section 15. The amended
provision reads:
"15. Certain confessions made to police officers to be
taken into consideration - (1) Notwithstanding
anything in the Code or in the Indian Evidence Act,
1872 (1 of 1872), but subject to the provisions of this
section, a confession made by a person before a police
officer not lower in rank than a Superintendent of
Police and recorded by such police officer either in
writing or on any mechanical device like cassettes,
tapes or sound tracks from out of which sounds or
images can be reproduced, shall be admissible in the
trial of such person or co-accused, abettor or
conspirator for an offence under this Act or rules
made thereunder:
Provided that co-accused, abettor or conspirator is
charged and tried in the same case together with the
accused.
(2) The police officer shall, before recording any
confession under sub-section (1), explain to the person
making it that he is not bound to make a confession
and that, if he does so, it may be used as evidence
against him and such police officer shall not record
any such confession unless upon questioning the
person making it, he has reason to believe that it is
being made voluntarily."
24
(23) Under the amended provision of Section 15 of the TADA Act,
the confession of a co-accused recorded under Section 15 of the
TADA Act is made admissible subject to certain conditions.
The confession recorded under Section 15 of the TADA Act by
a co-accused could be made use of against that accused
provided the co-accused is charged and tried in the same case
together with the accused. Section 15 of the TADA Act is
amended by Act No. 43 of 1993, which clearly stipulates that
the confession recorded under Section 15 of the TADA Act is
admissible only if the confessor is charged and tried in the same
case together with the co-accused. After the amendment of
1993, the addition of the words `co-accused, abettor or
conspirator is charged or tried together with the accused'
clearly shows that the confession could be considered by the
Court only when the co-accused, who makes the confession, is
charged and tried along with the other accused.
(24) This Court in the case of Kartar Singh vs. State of Punjab,
(1994) 3 SCC 569 considered the validity of Section 15 of the
TADA Act. While considering the question whether the
25
procedural law is oppressive and violates the principles of just
and fair trial offending Article 21 of the Constitution and is
discriminatory violating the equal protection of laws offending
Article 14 of the Constitution, and therefore, whether Section
15 of the TADA Act needs to be struck down, this court held
Section 15 of the TADA Act stands good on the test of
constitutional validity as the classification of offenders and
offences to be tried by the Designated Court under the TADA
Act or by the Special Courts under the Act of 1984 are not left
to the arbitrary and uncontrolled discretion of the Central Govt.,
but the Act itself has made a delineated classification of the
offenders as terrorists and disruptionists in the TADA Act and
the terrorists under the Special Courts Act, 1984 as well as
classification of offences under both the Acts. This Court also
stated that the Act also provides for procedural safeguards to be
followed by the police officers with regard to mode of
recording the confession and, therefore, Section is not liable to
be struck down as it does not offend either Article 14 or 21 of
the Constitution of India. The Court further observed as under :-
26
"255. As the Act now stands after its amendment
consequent upon the decision of Section 21(1)(c),
a confession made by a person before a police
officer can be made admissible in trial of such
person not only against the person but also
against the co-accused, abettor or conspirator,
provided that co-accused, abettor or conspirator is
charged in the same case together with the
accused, namely the maker of the confession. The
present position is in conformity with Section 30 of
the Evidence Act."
(25) The scope of Section 15 of the TADA Act was
considered by a three Judge Bench of this Court in State vs.
Nalini (supra). The three learned Judges were pleased to deliver
three separate judgments. We shall extract the relevant portion
of the judgments. While answering this question, K.T. Thomas,
J. opined:
"81. Section 15 of TADA enables the confessional
statement of an accused made to a police officer
specified therein to become admissible "in the trial
of such a person". It means, if there was a trail of
any offence under TADA together with any other
offence under any other law, the admissibility of
the confessional statement would continue to hold
good even if the accused is acquitted under TADA
offences."
"...The correct position is that the confessional
statement duly recorded under Section 15 of
TADA would continue to remain admissible as for
the other offences under any other law which too
27
were tried along with TADA offences, no matter
that the accused was acquitted of offences under
TADA in that trial." (Para 82)
"...In other words, after the amendment a
Designated Court could not do what it could have
done before the amendment with the confession of
one accused against a co-accused. Parliament has
taken away such empowerment. Then what is it
that Parliament did by adding the words in Section
15(1) and by inserting the proviso? After the
amendment the Designated Court could use the
confession of one accused against another accused
only if two conditions are fulfilled:
(1) The co-accused should have been charged in
the same case along with the confessor.
(2) He should have been tried together with the
confessor in the same case." (Para 90)
"92. While considering the effect of the non
obstante limb we can see that Section 15(1) of
TADA was given protection from any contrary
provision in the Evidence Act. But what is it that
Parliament did through Section 15(1) regarding a
confession made to a police officer? It has only
made such confession "admissible" in the trial of
such person or the co-accused etc."
"...It must be remembered that Section 15(1) of
TADA does not say that a confession can be used
against a co-accused. It only says that a confession
would be admissible in a trial of not only the
maker thereof but a co-accused, abettor or
conspirator tried in the same case." (Para 97)
28
(26) In other words, Thomas, J. took the view that the confession of
another person is weak evidence and hence the confession made
by one co accused was admissible in evidence against another,
but would be conclusive only if the same was corroborated,
even if such person was acquitted of charges under the TADA
Act in joint trial. It must be noted that the majority view is not
in concurrence with this opinion.
(27) Now we will notice the observations made by D.P. Wadhwa, J.
"415. When Section 15 TADA says that confession
of an accused is admissible against a co-accused
as well, it would be substantive evidence against
the co-accused as well, it would be substantive
evidence against the co-accused. It is a different
matter as to what value is to be attached to the
confession with regard to the co-accused as that
would fall in the realm of appreciation of
evidence."
(28) The learned Judge further went on to observe that the
confession made by the accused can be used as a substantive
piece of evidence against another accused in the light of Section
15 of the TADA Act. This view was supported by S.S.M.
Qadri, J. in a concurring opinion. In other words, this Court
took the view that even if a person is acquitted of the TADA
29
charges, the confession recorded under Section 15 of the TADA
Act would be admissible.
(29) The majority view in this case is that confessional statement is a
substantive piece of evidence and can be used against the co-
accused. The decision in Nalini's case was considered in S.N.
Dube vs. N.B. Bhoir, (2000) 2 SCC 254. The Court observed
that Section 15 of the TADA Act is an important departure
from the ordinary law and must receive that interpretation
which would achieve the object of that provision and not
frustrate or truncate it and that correct legal position is that a
confession recorded under Section 15 of the TADA Act is a
substantive piece of evidence and can be used against a co-
accused also, if held to be admissible, voluntary and believable.
(30) In Jameel Ahmed vs. State of Rajasthan, AIR 2004 SC 588, it is
observed:
". ...............Herein it is relevant to note that S.15
of TADA Act by the use of non-obstante clause
has made confession recorded under S.15
admissible notwithstanding anything contained in
the Indian Evidence Act or the Code of Criminal
Procedure. It also specifically provides that the
confession so recorded shall be admissible in the
trial of a co-accused for offence committed and
30
tried in the same case together with the accused
who makes the confession."
(31) In Esher Singh vs. State of A.P. (2004) 11 SCC 585, it is stated:
"19. Crucial words in the provision are "charged
and tried". The use of the expression "charged
and tried" imposes cumulative conditions. Firstly,
the two persons who are the accused and the co-
accused in the sense used by the legislature under
Section 15, must be charged in the same trial, and
secondly, they must be tried together. Kalpnath
Rai case has been overruled in Nalini case making
the position clear that the confession of a co-
accused is substantive evidence.
20. Section 2(b) of the Code of Criminal
Procedure, 1973 (in short "the Code") defines
"charge" as follows:
"2. (b) `charge' includes any head of charge when
the charge contains more heads than one;"
The Code does not define what a charge is. It is
the precise formulation of the specific accusation
made against a person who is entitled to know its
nature at the earliest stage. A charge is not an
accusation made or information given in the
abstract, but an accusation made against a person
in respect of an act committed or omitted in
violation of penal law forbidding or commanding
it. In other words, it is an accusation made against
a person in respect of an offence alleged to have
been committed by him. A charge is formulated
after inquiry as distinguished from the popular
meaning of the word as implying inculpation of a
person for an alleged offence as used in Section
224 IPC.
31
21. Chapter XVII of the Code deals with
"charge". Section 211 thereof deals with content
of charge. Section 273 appearing in Chapter XXIII
provides that evidence is to be taken in the
presence of the accused. The person becomes an
accused for the purpose of trial after the charges
are framed. The expression used in Section 15 of
TADA is "charged and tried". The question of
having a trial before charges are framed does not
arise. Therefore, the only interpretation that can
be given to the expression "charged and tried" is
that the use of a confessional statement against a
co-accused is permissible when both the accused
making the confessional statement and the co-
accused are facing trial after framing of charges.
In State of Gujarat v. Mohd. Atik this position was
highlighted. Unless a person who is charged faces
trial along with the co-accused the confessional
statement of the maker of the confession cannot be
of any assistance and has no evidentiary value as
confession when he dies before completion of trial.
Merely because at some stage there was some
accusation, unless charge has been framed and he
has faced trial till its completion, the confessional
statement, if any, is of no assistance to the
prosecution so far as the co-accused is concerned.
In fact, in para 10 in Mohd. Atik case it was
observed that when it was impossible to try them
together the confessional statement has to be kept
out of consideration.
22. So far as application of Section 30 of the
Evidence Act is concerned, in Nalini case this
question was examined and it was held in SCC pp.
306-07, paras 90 and 91 as follows:
"90. But the amendment of 1993 has completely
wiped out the said presumption against a co-
accused from the statute-book. In other words,
after the amendment a Designated Court could not
32
do what it could have done before the amendment
with the confession of one accused against a co-
accused. Parliament has taken away such
empowerment. Then what is it that Parliament did
by adding the words in Section 15(1) and by
inserting the proviso? After the amendment the
Designated Court could use the confession of one
accused against another accused only if two
conditions are fulfilled:
(1) The co-accused should have been
charged in the same case along with the confessor.
(2) He should have been tried together with
the confessor in the same case.
Before amendment the Designated Court had no
such restriction as the confession of an accused
could have been used against a co-accused
whether or not the latter was charged or tried
together with the confessor.
91. Thus the amendment in 1993 was a clear
climbing down from a draconian legislative fiat
which was in the field of operation prior to the
amendment insofar as the use of one confession
against another accused was concerned. The
contention that the amendment in 1993 was
intended to make the position more rigorous as for
a co-accused is, therefore, untenable."
(32) A two Judge Bench of this Court, doubting the
correctness of the decision in State vs. Nalini (supra), had
referred the matter to three Judge Bench of this Court.
Since Nalini's case (supra) was decided by three Judge
Bench of this Court, the three Judge Bench had referred
33
the matter to Constitution Bench in Prakash Kumar @
Prakash Bhutto vs. State of Gujarat, (2005) 2 SCC 409.
The primary question referred to the Bench, as noticed by
the Constitution Bench itself is, as to whether
confessional statement duly recorded under Section 15 of
the TADA Act would continue to remain admissible as
for the offences under any other law which were tried
along with TADA offences under Section 12 of the Act,
notwithstanding the fact that the accused was acquitted of
offences under the TADA Act in the said trial.
"18. The questions posed before us for the
determination are no more res integra. In our
view, the same have been set at rest by the three-
Judge Bench decision rendered in Nalini. The
rigours of Sections 12 and 15 were considered in
Nalini case and a finding rendered in paras 80, 81
and 82 (SCC p. 304) as under:
"80. Section 12 of TADA enables the Designated
Court to jointly try, at the same trial, any offence
under TADA together with any other offence `with
which the accused may be charged' as per the
Code of Criminal Procedure. Sub-section (2)
thereof empowers the Designated Court to convict
the accused, in such a trial, of any offence `under
any other law' if it is found by such Designated
Court in such trial that the accused is found guilty
of such offence. If the accused is acquitted of the
offences under TADA in such a trial, but convicted
of the offence under any other law, it does not
34
mean that there was only a trial for such other
offence under any other law.
81. Section 15 of TADA enables the confessional
statement of an accused made to a police officer
specified therein to become admissible `in the trial
of such a person'. It means, if there was a trial of
any offence under TADA together with any other
offence under any other law, the admissibility of
the confessional statement would continue to hold
good even if the accused is acquitted under TADA
offences.
82. The aforesaid implications of Section 12 vis-`-
vis Section 15 of TADA have not been adverted to
in Bilal Ahmed case. Hence the observations
therein (at SCC p. 434, para 5) that
`while dealing with the offences of which the
appellant was convicted there is no question of
looking into the confessional statement attributed
to him, much less relying on it since he was
acquitted of all offences under TADA'
cannot be followed by us. The correct position is
that the confessional statement duly recorded
under Section 15 of TADA would continue to
remain admissible as for the other offences under
any other law which too were tried along with
TADA offences, no matter that the accused was
acquitted of offences under TADA in that
trial."(emphasis supplied)
We are in respectful agreement with the findings
recorded by a three-Judge Bench in Nalini case.
40. For the reasons aforestated, we are of the view
that the decision in Nalini case has laid down
correct law and we hold that the confessional
statement duly recorded under Section 15 of TADA
and the Rules framed thereunder would continue
to remain admissible for the offences under any
35
other law which were tried along with TADA
offences under Section 12 of the Act,
notwithstanding that the accused was acquitted of
offences under TADA in the same trial."
(33) In view of the decisions rendered by this Court in the
aforementioned cases, it is settled law that the confession of an
accused can be used against him as well as other co-accused,
even if they are acquitted for offences under the TADA Act.
(34) In the present case, the question that needs to be answered is the
admissibility of such confession against the co-accused not
charged under the TADA Act. Shri K.T.S. Tulsi brought to our
notice the decision of this Court in the case of Baba Peer Paras
Nath (supra), wherein the issue that was considered was
whether the confessional statement of the co-accused is
admissible against co-accused if not tried for offences under
TADA Act. This Court distinguished the Constitutional Bench
decision of Kartar Singh vs. State of Punjab, (1994) 3 SCC 569
stating that the observation of this Court in that decision is not
about the admissibility of the confessional statement recorded
under Section 15 of the TADA Act against an accused when
such accused is tried with the other co-accused, abettor or
36
conspirator but such accused is not charged for any offence
under the TADA Act. Thus, the principle in this case which was
upheld was that confessional statement recorded under Section
15 of the TADA Act was admissible against co-accused, abettor
or conspirator provided such accused tried with the other co-
accused or abettor or conspirator in the same trial in respect of
offence under the TADA Act and not otherwise.
(35) In the present case, Babloo was not charged under the TADA
Act, but tried in the same trial along with K.K. Saini and
Mange, who were tried under the TADA Act. The question
raised by Shri K.T.S. Tulsi is whether it is permissible to use
the confession statement of K.K. Saini and Mange against
Babloo, when he is not charged for the offence under the
TADA Act to convict him, especially, when there is no other
evidence available against him.
(36) In the case of Baba Peer (supra), this Court held that in view of
the language employed in Section 15 of the TADA Act, the
confession recorded under the aforesaid provision is admissible
only if the co-accused is charged and tried in the same case
together with the confessor.
37
(37) In the case of Nalini (supra), the Court held that the confession
recorded shall be admissible in the trial of a co-accused for
offence committed and tried in the same case together with the
accused that makes the confession. Plain language of Section
15 of the TADA Act excludes the application of the provisions
of the Evidence Act and the Criminal Procedure Code. In view
of the language of Sub-Section (1) of Section 15, a confession
of an accused is made admissible evidence as against all those
charged and tried with him. This view of the Bench of three
learned Judges in Nalini's case is approved by Constitution
Bench of this Court in Prakash Kumar's case. The Constitution
Bench decision is binding on us.
(38) The language of Section 12 clearly states that in the course of
any trial under the TADA Act of any offence, if it is found that
the accused person has committed any other offence either
under this Act or any other law, the Designated Court (TADA)
may convict such person of such other offence and pass any
sentence authorized by this Act or such other law, for the
punishment thereof. Section 15 of the TADA Act, after its
amendment, authorizes the Designated Court to use the
38
confession statement of one accused against another accused
only when the co-accused is charged in the same case along
with the confessor and is tried together with the confessor in the
same case. The language of these two Sections is clear and
unambiguous. It is well settled principle of law that the
jurisdiction to interpret a Statute can be invoked when the same
is ambiguous. This Court in Nasiruddin and Ors. v. Sita Ram
Agarwal, (2003) 2 SCC 577, observed that:-
"38. The court's jurisdiction to interpret a statute
can be invoked when the same is ambiguous. It is
well known that in a given case the Court can iron
out the fabric but it cannot change the texture of
the fabric. It cannot enlarge the scope of
legislation or intention when the language of
provision is plain and unambiguous. It cannot add
or subtract words to a statute or read something
into it which is not there. It cannot re-write or
recast legislation. It is also necessary to determine
that there exists a presumption that the legislature
has not used any superfluous words. It is well-
settled that the real intention of the legislation
must be gathered from the language used. It may
be true that use of the expression 'shall or may' is
not decisive for arriving at a finding as to whether
statute is directory or mandatory. But the intention
of the legislature must be found out from the
scheme of the Act. It is also equally well-settled
that when negative words are used the courts will
presume that the intention of the legislature was
that the provisions are mandatory in character."
39
(39) In the case of Dadi Jagganadhan v. Jammulu
Ramulu and Ors., AIR 2001 SC 2699, a Constitution Bench of
this court observed:-
"13.........The settled principles of interpretation
are that the Court must proceed on the assumption
that the legislature did not make a mistake and
that it did what it intended to do. The Court must,
as far as possible, adopt a construction which will
carry out the obvious intention of the legislature.
Undoubtedly if there is a defect or an omission in
the words used by the legislature, the Court would
not go to its aid to correct or make up the
deficiency. The Court could not add words to a
statute or read words into it which are not there,
especially when the literal reading produces an
intelligible result. The Court cannot aid the
legislature's defective phrasing of an Act, or add
and mend, and, by construction, make up
deficiencies which are there."
(40) In the case of Feroze N. Dotivalaz v. P.M Wadhwani and
co., (2003) 1 SCC 14, this court stated:-
"Generally, ordinary meaning is to be assigned to
any word or phrase used or defined in a statute.
Therefore, unless there is any vagueness or
ambiguity, no occasion will arise to interpret the
term in a manner which may add something to the
meaning of the word which ordinarily does not so
mean by the definition itself, more particularly,
where it is a restrictive definition. Unless there are
compelling reasons to do so, meaning of a
restrictive and exhaustive definition would not be
expanded or made extensive to embrace things
which are strictly not within the meaning of the
word as defined."
40
(41) In the case of Union of India v. Harsoli Devi, (2002) 7
SCC 273, a Constitution Bench of this court laid down:-
"4. Before we embark upon an inquiry as to what
would be the correct interpretation of Section 28-
A, we think it appropriate to bear in mind certain
basic principles of interpretation of statute. The
rule stated by Tindal, CJ in Sussex Peerage case,
(1844) 11 Cl &F.85, still holds the field. The
aforesaid rule is to the effect:
"If the words of the statute are in themselves
precise and unambiguous, then no more can be
necessary than to expound those words in their
natural and ordinary sense. The words themselves
do alone in such cases best declare the intent of
the lawgiver."
It is a cardinal principle of construction of statute
that when language of the statute is plain and
unambiguous, then the court must give effect to the
words used in the statute and it would not be open
to the courts to adopt a hypothetical construction
on the ground that such construction is more
consistent with the alleged object and policy of the
Act. In Kirkness v. John Hudson & Co. Ltd. 1955
(2) ALL ER 345, Lord Reid pointed out as to what
is the meaning of "ambiguous" and held that - "a
provision is not ambiguous merely because it
contains a word which in different context is
capable of different meanings and it would be
hard to find anywhere a sentence of any length
which does not contain such a word. A provision
is, in my judgment, ambiguous only if it contains a
word or phrase which in that particular context is
capable of having more than one meaning." It is
no doubt true mat if on going through the plain
meaning of the language of statutes, it leads to
anomalies, injustices and absurdities, then the
41
court may look into the purpose for which the
statute has been brought and would try to give a
meaning, which would adhere to the purpose of
the statute."
(42) In Quebec Railway, Light Heat & Power Co. v. Vandray,
AIR 1920 PC 181, it had been observed that the Legislature is
deemed not to waste its words or to say anything in vain and a
construction which attributes redundancy to the legislature will
not be accepted except for compelling reasons. Similarly, it is
not permissible to add words to a statute which are not there
unless on a literal construction being given a part of the statute
becomes meaningless.
(43) In the case of Standard Chartered Bank and Ors. v.
Directorate of Enforcement and ors. AIR 2005 SC 2622, it was
stated:-
"It is true that all penal statutes are to be strictly
construed in the sense that the Court must see that
the thing charged as an offence is within the plain
meaning of the words used and must not strain the
words on any notion that there has been a slip that
the thing is so clearly within the mischief that it
must have been intended to be included and would
have included if thought of. All penal provisions
like all other statutes are to be fairly construed
according to the legislative intent as expressed in
the enactment."
This court further added:-
"55. The rule of interpretation requiring strict
construction of penal statutes does not warrant a
narrow and pedantic construction of a provision
so as to leave loopholes for the offender to escape
42
[See : Murlidhar Meghraj Loya v. State of
Maharashtra:1976CriLJ1527]. A penal statute has
to also be so construed as to avoid a lacuna and to
suppress mischief and to advance a remedy in the
light of the rule in Heydon's case. A commonsense
approach for solving a question of applicability of
a penal statute is not ruled out by the rule of strict
construction. [See : State of Andhra Pradesh v.
Bathu Prakasa Rao MANU/SC/0177/1976 :
1976CriLJ1387 and also G. P. Singh on Principles
of Statutory Interpretation, 9th Edition, 2004,
Chapter 11, Synopsis 3 at pgs. 754 to 756]."
(44) A Three-Judge Bench of this Court in the case of The
Assistant Commissioner, Assessment-II, Bangalore and Ors. v.
Valliappa Textiles Ltd. and Ors., AIR 2004 SC 86, laid down:-
"22. .................Though Javali (supra) also refers
to the general principles of interpretation of
statute the rule of interpretation of criminal
statutes is altogether a different cup of tea. It is not
open to the court to add something to or read
something in the statute on the basis of some
supposed intendment of the statute. It is not the
function of this Court to supply the casus omissus,
if there be one. As long as the presumption of
innocence of the accused prevails in this country,
the benefit of any lacuna or casus omissus must be
given to the accused. The job of plugging the
loopholes must strictly be left to the legislature
and not assumed by the court."
(45) It is pertinent to note that this Court in the case of Nalini
(supra) had taken the view that the confessional statement of
one of the accused can be used as conclusive evidence against
43
another accused if they are both tried in the same trial. This has
been so held despite the fact that in case of a confessional
statement, the incriminated accused cannot cross examine the
maker.
(46) When the validity of Section 15 of the TADA Act was
challenged in the case of Kartar Singh (supra), the Constitution
Bench of this Court held that Section 15 of the TADA was
playing the role of Section 30 of the Evidence Act, which
makes the confession of an accused admissible in evidence
against its maker as well as other co-accused in a criminal trial.
The main concern while making such confession admissible is
to test the veracity of the confession, as the incriminated co-
accused does not get the opportunity to cross examine the
maker. However, such evidence must be corroborated in order
to determine the guilt of a person. In the event, independent
evidence supports the confessional statement then there is no
harm in relying upon the confession adding further to the
independent incriminating evidence.
(47) In any case, it would lead to absurdity for a court to rely
on confessions of the maker against himself, and not against
44
another person, when such other person features prominently in
the confessional statement, in a joint trial of offences for the
same criminal act, especially in circumstances when there is
independent incriminating evidence.
(48) In view of the above discussion, we hold that the
confessional statement made by a person under Section 15 shall
be admissible in the trial of a co-accused for offence committed
and tried in the same case together with the accused who makes
the confession.
(49) The next argument of Shri K.T.S. Tulsi and Shri
Amrendra Sharan, learned senior counsel, is with regard to the
procedural irregularities in the investigation conducted by the
prosecution which, according to them, is not properly
appreciated by the learned Designated Court. The learned
counsel contends that under Section 20A of the TADA, the
sanction of the District Superintendent of Police is required to
be obtained before the police record any information about the
commission of an offence under the TADA. Since the same has
not been obtained, the conviction of the accused cannot be
sustained. In the instant case, according to the learned senior
45
counsel, the sanction has been obtained from the S.P., C.B.I. It
is urged that the Act does not envisage an officer of an
equivalent rank, but requires the sanction from the authority
that is envisaged in the Statute. It is further urged that the
provisions of the TADA Act require to be strictly construed and
interpreted, and for this reason also, an officer of S.P., C.B.I.
would not mean the Superintendent of Police of the District.
(50) The learned senior counsel relies on several judgments of
this court in support of his submissions that penal provisions
require to be strictly interpreted and we should not interpret the
plain language of the statute or that words having an ordinary
meaning cannot be given a different interpretation. It is also
brought to our notice that the plain and simple language of a
statute best describes the intention of the Legislature. The
decision on which reliance was placed are: Nasiruddin v. Sita
Ram Agrawal, (2003) 2 SCC 577, Firoz Dotiwala v. P.M.
Wadwani, (2003) 1 SCC 433, Union of India v. Hansoli Devi,
(2002) 7 SCC 273, Dadi Jaganadham v. Jamulu Ramulu,
(2001) 7 SCC 71, Union of India v. Elphinstone Company Ltd.,
46
(2001) 4 SCC 139, Whirpool of India v. ESI Corporation,
(2000) 3 SCC 185, Mohd. Ali Khan v. CWI, (1997) 3 SCC 511.
(51) Section 20A of the TADA Act was inserted by Act No.
43 of 1993. The relevant portion of section 20A is as under:
"20A. Cognizance of offence. - (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."
(52) Section 20A (1) of TADA Act commences with the
words "notwithstanding anything", hence it is a non-obstante
clause. As regards non-obstante clause, a Constitution Bench of
this court in the case of Ashwini Kumar Ghosh v. Arabinda
Bose and Anr. AIR 1952 SC 369 opined:-
"It should first be ascertained what the enacting
part of the section provides on a fair construction
of the words used according to their natural and
ordinary meaning, and the non obstante clause is
to be understood as operating to set aside as no
longer valid anything contained in relevant
existing laws which is inconsistent with the new
enactment."
47
(53) In the case of Vishin N Khanchandani & Another v Vidya
Laxmidas Khanchandani & Another, (2000) 6 SCC 724, this
court laid down:-
"The non obstante clause is used to avoid the
operation and effect of all contrary provisions. But
to attract the applicability of a non obstante
clause, the whole of the Section, the scheme, the
objects and reasons for the enactment of the Act
must be kept in mind."
(54) We are of the view that the phrase "District SP" has been
used in order to take the sanction of a senior officer of the said
district, when the prosecution wants to record any commission
of a offence under the Act, the reason appears to be that the
Superintendent of Police of the District is fully aware of
necessity to initiate the proceedings under the stringent criminal
law like the TADA Act. In the instant case, the State
Government, in exercise of the power conferred by Section 3 of
the Delhi Police Special Establishment Act, 1946, has handed
over the investigation to CBI. The Superintendent of Police,
CBI, has authorized his subordinate officer to record the
confessional statements of K.K. Saini and Mange after
following the procedure prescribed under the Act and the Rules
48
framed thereunder. Since investigation was done by CBI, in our
view, Superintendent of Police could authorize the Police to
record the information about the commission of the offence
under the Act.
(55) In the case of Ahmad Umar Saeed v. State of U.P
(1996) 11 SCC 61, a similar fact situation arose. In that case,
the accused contended that `cognizance of the offence' as
required under Section 20A(1) were not followed as the FIR
was recorded by a Sub-Inspector of Police. The accused therein
were charged for multiple offences both under the Penal Code
and TADA as is the case in the present appeals. This court held
that Section 20A(1) does not prohibit the officer from recording
the complaint and instituting investigation as a statutory right is
conferred on him under the Code with respect to non TADA
offences. Hence if the charges are framed with regard to an act,
which in the same transaction can be under TADA and any
other criminal provisions, then the mere fact that the filing of
FIR by anyone other than the District Superintendent would not
vitiate the whole process.
49
(56) In the instant case, the cognizance/`prior permission' was
granted by the S.P. of CBI. The accused contended that the
District Superintendent appointed by the concerned State
Government cannot be equated to the post of Superintendent of
the Central Investigation Bureau who is appointed directly by
the Central Government. We have been apprised of the fact that
it was at the behest of the State Government, the case was
transferred to the CBI and, therefore, this distinction has hardly
any relevance. After careful consideration of the submission on
the question of equation of rank, we are inclined to hold that in
matters concerning national security, as is the case of terrorist
acts, the Centre and an autonomous body functioning under it
would be better equipped to handle such cases. Therefore,
`prior approval' by the SP of CBI would adequately satisfy the
requirements under Section 20A(1). We also note that there is
no prejudice caused to the accused as a result of the
authorization being granted by the SP of the CBI.
(57) In the case of Gurdeep Singh alias Deep v. State(Delhi
Administration), 2000(1) SCC 498, the confessional statement,
after it was obtained under Section 15, was not sent to a Chief
50
Judicial Magistrate as is required under Rule 15(5) of the
TADA Rules, 1987. Instead, the confessional statement was
forwarded the very next day to the Designated Court. This court
refused to interfere with the investigation stating that no
prejudice has been caused to the accused and that the whole
investigating process could not be vitiated because of a mere
technical flaw. Similarly, in the present case, with regard to
non-compliance of Section 20A(1), if we are to annul the whole
investigation process, on the basis of what at its worst, appears
to be a technical flaw, it would result in the purport of the
statute being ignored. Furthermore, we take note of the fact that
the safeguards provided under Section 15 of the TADA and the
rules made thereunder are complied with while recording the
confession statement.
(58) In S.N Dube v. N.B Bhoir, (2002) 2 SCC 254, the accused
contended that the confession was obtained through malafide as
the person who recorded the evidence was the Superintendent
of Police [Shinde] who was investigating the case. Reversing
the finding of the trial court, this court at Para 28 observed:
51
"The learned trial Judge has also held that it was
not fair on the part of Shinde to record the
confessions as he was also supervising the
investigation. Shinde has clearly stated in his
evidence that he had made attempts to find out if
any other Superintendent of Police was available
for recording the confessions and as others had
declined to oblige him he had no other option but
to record them. We see no illegality or impropriety
in Shinde recording the confessions even though
he was supervising the investigation."
(59) In our view, since no prejudice is caused to the accused,
we are unable to agree with the contention of Shri. K.T.S. Tulsi
and Shri Amarendra Sharan on this aspect of the matter.
Having considered the legal arguments advanced in these
appeals, now we will examine the evidence against Babloo
independently.
60) Prosecution has examined Bharat Singh (PW-30), Smt. Indu Singh
(PW-87), Bhushal Lal Shreshtha (PW-68). Bharat Singh (PW 30) has
stated in his evidence that he knew Babloo and was in Allahabad on the
said day in connection with a matter regarding Lochan Singh. He has
further stated that he got a call from Mange saying that he was in
Allahabad along with K.K. Saini, and then they discussed about meeting.
Subsequently, he got a call from Babloo from Nepal. Babloo told Bharat
Singh that it was he who had given the phone number of Bharat Singh to
52
Mange, and also told him not to meet Mange because Mange was in
Allahabad for important work. This is enough to establish that Babloo
had the knowledge that K.K. Saini and Mange were in Allahabad for a
specific purpose.
(61) Smt. Indu Singh (PW-87) was the owner of the house
where Babloo stayed in Nepal. She recognized Babloo when
she saw him in the Court and stated that it was the same person
who had stayed in her house during the said period. She has
stated that she had given the house on rent to Mirza Beg and
Rehman, who she came in contact with through the broker,
Salim. When asked why she did not object to the sub-letting of
the house to Babloo, she was frank enough to state that the only
thing she cared about was the rent, which was duly paid. She
stated that the telephone with number 410564 was in the name
of her son, Parbhajan Singh and the same was installed in the
house which was rented by Babloo. She also stated that all the
bills for that phone were paid by Babloo. She stated that STD-
ISD facility was not there on the number when the phone
connection was obtained, but was subsequently taken on
request by the tenant.
53
(62) Bhushal Lal Shreshtha (PW-68) has stated that he was in
the Telecom Department at the relevant date, and on request
made by the Nepal police, in the required format, he gave the
telephone bills for the number 410564. The telephone records
from the telephone number 410564 (being the telephone in
Nepal, from which Babloo made calls) and 622452 (being the
telephone at Hotel Finero) has been annexed in evidence before
us [D 38/40 and D 36/2].
(63) From the above evidence, it can be established that
Babloo was living in the house of Smt. Indu Singh in Nepal. He
had the phone number 410564 at his disposal. He not only
knew that Mange and K.K. Saini were in Allahabad, but also
knew the purpose for which they were in Allahabad. This is
clear from the testimony of Bharat Singh. From the phone bills,
it is clear to us that phone calls were made from the phone
number 410564 to the phone number 622452, the phone of
Hotel Finero. On a perusal of the phone bills, it is clear that the
phone calls were made at the times which have been indicated
by the confessional statements of K.K. Saini and Mange.
Hence, we may safely conclude that the part of the confessional
54
statements in question have been corroborated by the other
evidence. The evidence that we have on record, without
considering the confessional statements, is strong enough to
create serious doubts about the conduct of Babloo in this
matter. The learned senior counsel Shri K.T.S. Tulsi submits
that the prosecution has not examined the owner of the car
bearing No.DNH 8440 Shri Ramavar, who is the resident of
Delhi, nor the transferee in whose name the registration
certificate had been standing at the relevant point of time. In
our view, merely because the owner of the car is not examined
by the prosecution, it does not weaken the case of the
prosecution. In fact, car was recovered on the information
furnished by K.K. Saini, one of the co-accused in the case.
This would clearly establish the prosecution case that the car
bearing No.DNH-8440 was used in committing the offence
alleged against the accused. In our view, minor discrepancies,
if any, would not be fatal to the entire case of the prosecution.
(64) In this background, the question before us is, even if we
have to eschew the confessional statements of K.K. Saini and
Mange, whether we can still maintain the conviction and
55
sentence of Babloo - co-accused for the offence under Section
302 read with Section 120-B of the IPC.
(65) The role played by Babloo in the present case is that of a
"king pin". The possibility of having direct evidence against a
"king pin" is rather low. In most cases, it may be
circumstantial. What we need to see is the chain of events that
the prosecution is expected to prove can be linked to the
evidence incriminating Babloo.
(66) It has been consistently held by this Court that where the
guilt of a person squarely rests on circumstantial evidence, then
the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be in
coherence of each other and incompatible with the innocence of
the accused. These circumstances from which, such inference
is to be drawn, must be shown to be closely connected to the
facts which are sought to be proved. When the matter depends
on the conclusions to be drawn from such circumstances, then
the cumulative effect of the circumstances must be to negate the
possibility of innocence in any manner. [See State of UP v.
Satish, (2005) 3 SCC 114; Liyakat v. State of Uttranchal, 2008
56
Cri LJ 1931 (SC); Swamy Sharaddananda v. State of
Karnataka, (2007) 12 SCC 288; State of Goa v. Sanjay
Thekaram, (2007) 3 SCC 755].
(67) From the evidence on record, it can safely be inferred
that Babloo was the mastermind of the whole incident and
Mange and K.K. Saini committed the offence at the behest of
Babloo. In our view, there is independent incriminating
evidence against Babloo, even if we have to eschew the
confessional statement of co-accused. Hence, we reject the
appeal of Babloo.
Case of K.K. Saini and Mange
(68) We now proceed to examine the evidence against K.K.
Saini and Mange independently. It must be noted that the
witnesses here shall be referred to by the numbers assigned to
them under Criminal Appeal No.3 of 1995.
(69) With regard to K.K. Saini, it must be first mentioned that
he has confessed to the crime under Section 15 of the TADA
Act. His confession was recorded by Shri. Sharad Kumar SP,
57
CBI (P.W 47). KK Saini was fully made aware of the
consequences of making a confessional statement.
(70) The following are the details divulged in his confessional
statement. He has stated that he went to Nepal on Babloo's
behest where he met Mange. He further stated that he was given
the task to kill L.D Arora by Babloo. He also mentions that he
was chosen specifically to open fire as he had previously
committed four murders. Thereafter, Babloo provided Mange
with Maruti car DNH - 8440, a 9 mm pistol several cartridges
and `10,000 to 12,000/- for this purpose. On the morning of 23rd
March, 1993, K.K. Saini and Mange checked into Hotel Finero
under the assumed names of A.K. Singh and Harjeet Singh
respectively. Subsequently, they received a phone call from
Babloo from Nepal. Babloo told them over the phone that they
would meet Alimudeen @ Baba who would help them in the
task. Subsequently, Baba met K.K. Saini and Mange in their
room. Later in the day, Baba took him on a dark grey Bajaj
scooter to show him the office and the house of L.D. Arora.
They examined the area and on their return to the hotel, all
three of them sat and planned how to execute the task of killing
58
L.D. Arora. On the next day in the morning, they received a
phone call from Babloo from Nepal who asked them to finish
the task the very next day as L.D. Arora was to leave for
Bombay to reveal information regarding smuggling of arms and
explosives used in the Bombay bomb blasts in the very same
year. K.K. Saini then took Mange and showed the office and
house and they marked the escape routes. On their return to the
hotel, Baba came to the room and told them that they should
reach the place around 5.00 PM and that he would come in
Maruti car - DNH 8440. KK Saini stated that they left Hotel
Finero around 5.00 PM. At around 6.45 - 7.00, Baba came and
told them that L.D. Arora would arrive shortly. They waited for
his arrival and on seeing Arora's vehicle approach they took
their respective positions. When L.D. Arora was parking his car
alongside the Southern boundary wall, K.K. Saini emerged
from his position near the stair case and opened fire three times
at short range. He escaped through the staircase and reached
Mange who was waiting near the scooter. They met Baba at the
agreed spot and exchanged vehicles. Subsequently, they went
back to Hotel Finero, checked out and left for Nepal the very
59
same evening. They crossed the Nepal border on 25th morning
after paying Customs duty for the car.
(71) The testimony of Mange is substantially similar with that
of K.K. Saini. The learned senior counsel Shri Amrendra
Sharan submits that the confessional statement of Mange was
recorded nearly after eight years from the date of incident and
the confessional statement of both K.K. Saini and Mange is
verbatim the same. Therefore, it casts a serious doubt on the
alleged confessional statement. In our view, merely because the
confessional statement of both the accused is more or less
similar, it cannot be said they are neither normal nor unnatural
which would vitiate the probative value of such confessional
statement. Therefore, we do not see any merit in this contention
of the learned senior counsel.
(72) Subsequently both KK Saini and Mange retracted their
confessional statement before the Designated Court and have
categorically denied knowing each other or Babloo. They have
also denied ever having gone to hotel Finero, ADA Colony etc.
They have stated that the CBI has prevailed upon the witnesses
produced on behalf of the prosecution to give false evidence
60
against them. Keeping in view that the accused has retracted
their confession statement, the learned senior counsel Shri
K.T.S. Tulsi submitted that the confession of both KK. Saini
and Mange, alleged to be given under Section 15 of the TADA
Act cannot be used since the prosecution has failed to adduce
sufficient corroborative evidence.
(73) A confessional statement given under Section 15 shall
not be discarded merely for the reason that the same has been
retracted. In Ravinder Singh v. State of Maharashtra, (2002) 9
SCC 55, the accused was charged under the provisions of the
TADA Act and under Section 302/34, 120B and other
provisions of the Explosives Act. The accused thereafter
retracted his confession. The court observed:-
"There can be no doubt that a free and voluntary
confession deserves the highest credit. It is
presumed to flow from the highest sense of guilt.
Having examined the record, we are satisfied that
the confession made by the appellant is voluntary
and truthful and was recorded, as already noticed,
by due observance of all the safeguards provided
under Section 15 and the appellant could be
convicted solely on the basis of his confession."
61
The court also observed the decision in State of
Maharashtra v. Bharat Chaganlal Raghani, (2001) 9 SCC 1,
wherein the court partially overturned the acquittal of the
accused by the Designated Court solely based on the
confessional statement of the accused which had later been
retracted. In Bharat Chanlal's case, the court observed that
there was no denial of the fact that judicial confessions made
are usually retracted but retracted confessions are held to be
good confessions if they are made voluntarily and in
accordance with law.
(74) In the case before us, the contest on the validity of the
testimony has been multi pronged. Firstly, it was contended that
since the procedure under Section 20A (1) had not been
followed, the testimony is not valid in law. Secondly, it was
asserted that the accused was made to sign on blank papers and
that the confession has been concocted by the prosecution.
Thirdly, that there is no corroborative evidence given the fact
that certain witnesses including Ram Babu (PW-35) and Sanjay
Kumar (PW- 36), who were to have witnessed the crime, had
been declared hostile by the prosecution.
62
(75) The argument pivoted on the requirements under Section
20A(1) not being fulfilled is, in our opinion, has no merit. The
learned Additional Solicitor General Shri P.P. Malhotra
contends that both K.K. Saini and Mange were produced before
the CMM, Delhi to fulfill the requirements under Rule 15 and
the accused did not, at that point, claim that they had been made
to sign on blank papers. Keeping in mind the possibility of
abuse of the process, this court in Kartar Singh (supra) laid
down certain guidelines whereby the veracity of the
confessional statement is ensured, for example, the confession
given to a police officer under Section 15 is to be sent to the
CMM without delay and if the accused when he is so produced
before the CMM alleges torture, he is to be sent for a medical
examination. Here the accused were sent to the CMM, Delhi
the very next day and they neither alleged that the confession
was fabricated, nor that they had been tortured. In the light of
these circumstances, we have to give due credence to the
confession statement and consider to what extent it has been
corroborated by substantive evidence.
63
(76) In Ravinder Singh's case, the Court relying on Nalini v.
State (supra), S.N Dube v. N.B Bhoir and Devender Pal Singh
v. State of NCT of Delhi, (2002) 5 SCC 234, held that "it is well
established that a voluntary and truthful confessional statement
recorded under Section 15 of TADA requires no
corroboration."
(77) This apposite observation by the bench of two learned
Judges in Ravinder Singh's case should be considered with
measured caution and we believe, taking into account ground
realities, it would be prudent to examine the authenticity of a
confession on a case to case basis. The problem seems to be the
method we follow in ascertaining whether a specific confession
is truthful and voluntary. Section 15 and the rules made
thereunder prescribe certain guidelines - which if ensured can,
to a large extent, point towards the fact that the confession is
truthful and voluntary. However, we must not overlook the fact
that the TADA prescribes a deviation from the conventional
criminal jurisprudence. As a court of record, we are bound to
keep in mind situations where despite the procedure being
followed, the testimony so obtained under Section 15 is
64
coloured by suspicion and doubt regarding its veracity. Hence,
albeit the procedure is followed, we find it judicious to look
into whether the testimony is corroborated by the evidence
presented by the prosecution. The life and liberty of a person
are at stake and we are of the view that no effort should be
spared in such circumstances to see that justice is done. These
are after all the safeguards provided in our Constitution and the
people have vested their faith in this court to keep vigil and see
to it that these hallowed principles are not trampled upon by the
necessities of the hour and vicissitudes of time.
(78) The confessional statements of K.K. Saini and Mange are
corroborated by the documentary evidence, which are marked
in the evidence by the prosecution. Exhibit D-20/Ka 2 is the
notebook maintained by Hotel Finero and proves the entry of
Maruti car DNH - 8440 against K.K. Saini's assumed name,
A.K. Singh on 23/3/93. Exhibit D-19 is the hotel register at
Hotel Finero and proves that K.K. Saini and Mange signed in it
under fictitious names. Both K.K. Saini and Mange have been
recognized by the employees of Hotel Finero. The testimony of
Anant Ram Saxena (PW-1) Hotel Manager, Kalidas Jaiswal
65
(P.W-44) waiter and Jwala Prasad (PW 60) appears to be
credible and true and if the same is believed, it corroborates the
fact that the accused stayed in the Hotel Finero during the
relevant time and was met by Alimudeen @ Baba. The hand
writing of the accused in the register has also been proved by
the detailed report of Dr. M.A Ali (PW-43), Sr. Scientific
Officer produced as Exhibit-D-27. The car used for committing
the crime has been recovered at the instance of KK Saini
revealing its whereabouts. Recovery Memo dated 23.04.1994
[Exhibit D 16/ Ka 17] records the seizure of the car from Agra.
The copy of the Cash Memo seized from the petrol pump
Barabanki [Exhibit- D 22/ Ka 27] and the Customs Receipt [D
37/28, Ka 76] corroborates the alleged journey from Krishna
Nagar, Nepal to Allahabad and back. The statement issued by
the Nepal police reveals that Car bearing No. DNH - 8440
entered Nepal through Krishna Nagar customs and was allowed
to stay for a period of one week on payment of Rs 700 Nepal
Currency as customs duty. Further, the printouts of call logs on
telephone number 622452 installed in Hotel Finero (Exhibits D
38/40 and D 36/2), the report of part of investigation in Nepal
66
(Exhibits D 37, D 37/28) is read with the statements of Indu
Singh (PW 87) (land lady of Babloo in Nepal), Bhushan Lal
Shreshtha (PW - 68) [he was Deputy Fiscal Officer, Telecom
Dept, Nepal] corroborate the confessional statement of KK.
Saini and Mange to a substantial extent. Indu Singh (PW 87)
has recognized Babloo in court and stated that he was staying at
the house rented out by her in Krishna Nagar, Nepal and that
the telephone number from which calls were made to Room No
7 in hotel Finero, where K.K. Saini and Mange were staying,
was installed in the same house where Babloo was staying.
Harikesh (Harbans) Batra (PW 21) (Inspector MTNL)
identified K.K. Saini in court and stated that he had previously
been involved in the transfer of a phone in the name of one
A.K. Singh. He stated that K.K Saini and A.K. Singh are one
and the same. A.K. Singh is the assumed name used by K.K.
Saini even at Hotel Finero. K.K Saini had, in his confession,
stated that he had obtained the driving license of A.K Singh and
substituted the photograph therein with his own.
(79) Bharat Singh (PW-30) [was declared hostile by
prosecution] stated on oath that he knows Babloo from his
67
University days. Later he met Babloo when he went to meet
Chandraswami in connection with his reinstatement into
service. He admits to have been involved in solving a few land
disputes on Babloo's behalf. He has visited Babloo in Nepal a
couple of times. During the time when L.D. Arora was
murdered, he was in Allahabad. He stated that he received calls
from both Mange and Babloo on March 23 and 24. It was stated
by the witness that in the course of conversation, Mange
revealed that he had obtained Bharat Singh's number from
Babloo. Mange stated that he was presently in Allahabad and
that 2-3 people had come with him. Subsequently, he has stated
that Babloo called him in relation to a property dispute that
Bharat Singh was assisting him with. When Bharat Singh
mentioned talking to Mange over the phone to Babloo, the latter
had said that he had given Bharat Singh's number to Mange and
that he was not to meet Mange. Bharat Singh was declared
hostile and cross examined by the prosecution. In the course of
cross examination, he has denied having told the investigating
officer that Mange had told him that he had come to Allahabad
to kill L.D. Arora. However, he admitted that he told the CBI
68
officer that Babloo told him that Mange was there on a specific
task and that is the reason why he should desist from meeting
him.
(80) The evidence of Bharat Singh, despite the fact that the
prosecution has chosen to treat him as a hostile witness, need
not be totally disregarded. Its admissibility should be tested in
the light of the surrounding circumstances and other evidence.
In Radha Mohan Singh vs. State of UP, 2006 Cri LJ 1121
(1125) (SC), this Court has observed:
"It is well settled that the evidence of a
prosecution witness cannot be rejected in toto
merely because the prosecution choose to treat
him as hostile and cross-examined him. The
evidence of such witness cannot be treated as
effaced or washed off the record altogether but the
same can be accepted to the extent his version is
found to be dependable on a careful scrutiny
thereof."
(81) In the present case, testimony of Bharat Singh provides a
vital link between the various participants in this crime, the fact
that K.K. Saini and Mange were in Allahabad on a `specific
task' assigned to them by Babloo, who was in Nepal. Taken
together, the evidence on record presents an unimpeachable
69
evidence against the accused, clearly indicating the modus
operandi and the motive.
(82) In the light of the above discussion, we are of the opinion that the
Designated Judge (TADA) was justified in convicting and sentencing
K.K. Saini and Mange for the offences under Section 302/34 IPC.
Case of the State
(83) The State has preferred appeals against the judgment of the
Designated Court stating that the court was not justified in dismissing
the charges under Section 3 of the TADA Act. They have examined
numerous witnesses who have stated that the murder of L.D. Arora
resulted in fear in the minds of fellow customs officers. It was also
stated that the morale of these officers were affected and that a sense of
gloom prevailed upon them. It was also stated that L.D. Arora was to
leave the very next day for Bombay to furnish details about the
smuggling of arms and explosives used in the Bombay bomb blasts.
(84) It would be useful to examine the purport of Section 3 of the
TADA. It is under:-
"3. Punishment for terrorist acts. - (1) Whoever
with intent to overawe the Government as by law
established or to strike terror in the people or any
section of the people or to alienate any section of
70
the people or to adversely affect the harmony
amongst different sections of the people does any
act or thing by using bombs, dynamite or other
explosive substances or inflammable substances or
lethal weapons or poisons or noxious gases or
other chemicals or by any other substances
(whether biological or otherwise) of a hazardous
nature in such a manner as to cause, or as is likely
to cause, death of, or injuries to, any person or
persons or loss of, or damage to, or destruction of,
property or disruption of any supplies or services
essential to the life of the community, or detains
any person and threatens to kill or injure such
person in order to compel the Government or any
other person to do or abstain from doing any act,
commits a terrorist act.
(2) Whoever commits a terrorist act, shall, -
(i) if such act has resulted in the death of any
person, be punishable with death or imprisonment
for life and shall also be liable to fine;
(ii) in any other case, be 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.
(3) Whoever conspires or attempts to commit, or
advocates, abets, advises or incites or knowingly
facilitates the commission of, a terrorist act or any
act preparatory to a terrorist act, shall be
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.
(4) Whoever harbours or conceals, or attempts to
harbour or conceal, any terrorist shall be
punishable with imprisonment for a term which
shall not be less than five years but which may
71
extend to imprisonment for life and shall also be
liable to fine.
(5) Any person who is a member of a terrorists
gang or a terrorist organisation, which is involved
in terrorist acts, shall be 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.
(6) Whoever holds any property derived or
obtained from commission of any terrorist act or
has been acquired through the terrorist funds shall
be 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."
(85) Section 3 of the TADA Act gives due importance to the aspect of
`intent'. The person who is alleged to be involved in a terrorist act can
be charged under Section 3(1) only when the prosecution has been
successful in establishing that the same was committed with the intent to
awe the government or to achieve one or the other ends mentioned under
Section 3(1). The Designated Court, while dismissing the charges under
the TADA Act, cited with approval the decision of this court in
Hitendra Vishnu Thakur vs. State of Maharashtra, (1994) 4 SCC 602.
This Court made a distinction between the incidence of terror as a
consequence of a particular act and causing terror being the sole intent
72
of the same act. It is only in case of the latter that the provisions of
Section 3(1) are attracted. It was held that:
"If it is only as a consequence of the criminal act
that fear, terror or/and panic is caused but the
intention of committing the particular crime
cannot be said to be the one strictly envisaged by
Section 3(1), it would be impermissible to try or
convict and punish an accused under TADA. The
commission of the crime with the intention to
achieve the result as envisaged by the section and
not merely where the consequence of the crime
committed by the accused create that result, would
attract the provisions of Section 3(1) of TADA.
Thus, if for example a person goes on a shooting
spree and kills a number of persons, it is bound to
create terror and panic in the locality but if it was
not committed with the requisite intention as
contemplated by the section, the offence would not
attract Section 3(1)"
(86) In State vs. Nalini (supra), a three Judge Bench of this Court has quoted
the dictum laid down in Hitendra Vishnu Thakur (supra) with approval
and concluded thus: (See p.298 Para 51):
"51. Thus the legal position remains unaltered that
the crucial postulate for judging whether the offence
is a terrorist act falling under TADA or not is
whether it was done with the intent to overawe the
Government as by law established or to strike
terror in the people etc."
(87) In State of West Bengal vs. Mohammed Khalid (1995)
1 SCC 684, referring to Corpus Juris Secundum (A
73
Contemporary Statement of American Law, Vol 22 at pg 116), the
meaning of intent was quoted as under:
"Intention- (a) In general (b) Specific or general
intent crimes; An actual intent to commit the
particular crime towards which the act moves is a
necessary element of an attempt to commit a
crime. Although the intent must be one in fact, not
merely in law, and may not be inferred from the
overt act alone, it may be inferred from the
circumstances"
(88) The prosecution in this case has argued that charge under
Section 3 is maintainable in the light of the Bombay bomb blasts and the
fact that L.D. Arora would have been pivotal in providing information
regarding the smuggling of arms and explosives. The case before us
concerns the murder of L.D. Arora. The prosecution has not been
successful in proving that this particular murder was committed with the
intention to cause terror. As mentioned earlier, terror could have been
caused as a consequence of the act. The prosecution has stated that the
main intention behind the murder of L.D. Arora was to prevent the
names of Mohd. Dosa, Tahir Shah and others involved in smuggling of
arms and explosives would not come to light during the investigations
that followed the Bombay blast. It is therefore evident that the intention
of the accused in the present case was not to cause terror but to prevent
74
information regarding another crime from being divulged. In the light of
these facts, we are of the opinion that the TADA Court was justified in
dismissing the charges framed under the TADA Act. Therefore, appeals
filed by the State for enhancement of sentence require to be dismissed.
(89) In view of the discussion noticed above, we find no illegality
in the judgment under appeals. As such, appeals stand dismissed.
.................................J.
[ P. SATHASIVAM ]
.................................J.
[ H.L. DATTU ]
New Delhi,
January 25, 2011.
75
|
