Mohd. Yunus Vs. State of Gujarat
EmailAppeal: Criminal Appeal No.741 of 1997
(From the Judgment and Order dated 21.4.97 of the Designated Court, Ahmedabad in T.C.C.No. 3 of 1996)
(From the Judgment and Order dated 21.4.97 of the Designated Court, Ahmedabad in T.C.C.No. 3 of 1996)
Petitioner: Mohd. Yunus
Respondent: State of Gujarat
Apeal: Criminal Appeal No.741 of 1997
(From the Judgment and Order dated 21.4.97 of the Designated Court, Ahmedabad in T.C.C.No. 3 of 1996)
(From the Judgment and Order dated 21.4.97 of the Designated Court, Ahmedabad in T.C.C.No. 3 of 1996)
Judges: G.N.RAY & G.B.PATTANAIK, JJ.
Date of Judgment: Oct 15, 1997
Appearances:
W.A.Ansari, K.M.M.Khan, Shuyab Arshi and N.A.Siddiqui, Advocates for the Appellant.
Dr.Ghatate, Senior. Advocate and Ms. H.Wahi, Advocate with him for the Respondent.
Head Note:
CRIMINAL LAWS
Terrorists and disruptive Activities (Preven-tion) Act, 1987
TADA – Section 20 A 3, 5 – Non Compliance of mandatory provision of Section 20 A – No prior approval of statutory authority – Held prior approval has to be in writing and not oral – Held on facts that even oral permission had not been granted – In absence of prior approval under Section 20A, charge under Sections 3 and 5 of TADA not sustained and is quashed.
Terrorists and disruptive Activities (Preven-tion) Act, 1987
TADA – Section 20 A 3, 5 – Non Compliance of mandatory provision of Section 20 A – No prior approval of statutory authority – Held prior approval has to be in writing and not oral – Held on facts that even oral permission had not been granted – In absence of prior approval under Section 20A, charge under Sections 3 and 5 of TADA not sustained and is quashed.
Held:
It is, however, contended by the prosecution that on the very date when investigation has been made in this case, the Commissioner of Police, Ahmedabad was present and he had given oral permission under Section 20A (1) of TADA. We may indicate here that considering the serious consequences in a criminal case initiated under the provisions of TADA, oral permission cannot be accepted. In our view, Section 20A (1) must be construed by indicating that prior approval of the statutory authority re-ferred to in the said sub-section must be in writing so that there is transparency in the action of the statutory authority and there is no occasion for any subterfuge subsequently by introducing oral permission.
That apart, in the facts of the case we have no hesitation to hold that even oral permission had not been granted.
As the mandatory provisions of Section 20A (1) of TADA has not been complied with, the charge under the provisions of Sec-tion 3 and 5 of TADA cannot be sustained in the said criminal case. Therefore, such invocation of the provisions of TADA stands quashed. It is however made clear that it will be open to the concerned authority to proceed in accordance with law as indicat-ed in paragraph 16 of the decision of this Court in Anirudhsinh-ji’s case for invoking provisions of TADA. (Para 4,5 & 6)
Cases Reffered:
1. Anirudhssinji Karansinhji Jadeja and Anr. v. State of Gujarat JT 1995 (6) SC 146 = (AIR 1995 (5) SC 2390). (Para 2)
JUDGEMENT:
O R D E R
1. In this appeal, the order dated 21st April, 1997 passed by the learned Addl. Designated Judge, Ahmedabad rejecting the application made by the appellant for dropping the charge under Sections 3 and 5 of Terrorists and disruptive Activities (Preven-tion) Act, 1987 (in short TADA) in Terrorist Criminal Case No. 3/96 arising out of I.C.R.No. 94/93 of the police station Rak-hiyal, District Ahmedabad on account of non compliance of manda-tory provisions of Section 20A of TADA, is under challenge.
2. The learned counsel for the appellant has referred to the decision of three judges’ Bench of this Court in Anirudhssinji Karansinhji Jadeja and Anr. v. State of Gujarat JT 1995 (6) SC 146 = (AIR 1995 (5) SC 2390). It has been held in the said deci-sion that cognizance of the offence under TADA can be taken on compliance of the provisions of sub-section (1) of Section 20A and sub-section (2) of Section 20A of TADA. Sub-section (1) of Section 20A of the TADA provides:
20-A (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.’
3. The learned counsel has contended that in this case, the statutory authority as referred to in sub-section (1) of Section 20A of TADA has not given any prior approval for initiating the criminal proceedings under TADA. Therefore charges under TADA cannot be invoked.
4. It is, however, contended by the prosecution that on the very date when investigation has been made in this case, the Commissioner of Police, Ahmedabad was present and he had given oral permission under Section 20A (1) of TADA. We may indicate here that considering the serious consequences in a criminal case initiated under the provisions of TADA, oral permission cannot be accepted. In our view, Section 20A (1) must be construed by indicating that prior approval of the statutory authority re-ferred to in the said sub-section must be in writing so that there is transparency in the action of the statutory authority and there is no occasion for any subterfuge subsequently by introducing oral permission.
5. That apart, in the facts of the case we have no hesitation to hold that even oral permission had not been granted. Dr. Ghatate, the learned counsel for the respondent has drawn our attention to two documents, namely, the letter addressed by the ACP Crime Branch, Ahmedabad to the Deputy Commissioner, Crime Branch, Ahmedabad city, for invoking Sections 3 and 5 of TADA in respect of Rakhial Police Station CR 1-94/93. This letter is dated 11th August, 1994. In the said letter, a request was made that in the facts indicated in the letter, it was necessary to invoke sections 3 and 5 of TADA and a request was made to grant approval accordingly. The other document placed before us by Dr. Ghatate is the permission given by D.C.P. on the basis of request made by the A.C.P. Crime Branch Ahmedabad. It appears that on 11.8.94 such permission had been granted by Mr.A.K.Surolia the Deputy Commissioner of Police Crime Branch, Ahmedabad City and such grant of permission is to the following effect:
‘Therefore, after a careful consideration I deem it fit that in this case relevant provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short TADA) are to be applied in the FIR and hence I grant permission for the same’.
6. Such letter on the face of it indicates that the alleged oral permission had not been granted by the Commissioner of Police otherwise there would not have been any occasion for seeking permission from an authority subordinate to the Commis-sioner of Police namely, the Deputy Commissioner of Police and consequential grant of permission by such subordinate authority. As the mandatory provisions of Section 20A (1) of TADA has not been complied with, the charge under the provisions of Section 3 and 5 of TADA cannot be sustained in the said criminal case. Therefore, such invocation of the provisions of TADA stands quashed. It is however made clear that it will be open to the concerned authority to proceed in accordance with law as indicat-ed in paragraph 16 of the decision of this Court in Anirudhsinh-ji’s case for invoking provisions of TADA. We make it clear that we have not considered as to whether or not in the facts of the case, a case under Sections 3 and 5 of TADA has been made out because the condition precedent for invoking such provisions had not been complied with. Such question is therefore kept open to be considered at the appropriate stage. This appeal is according-ly disposed of.
1. In this appeal, the order dated 21st April, 1997 passed by the learned Addl. Designated Judge, Ahmedabad rejecting the application made by the appellant for dropping the charge under Sections 3 and 5 of Terrorists and disruptive Activities (Preven-tion) Act, 1987 (in short TADA) in Terrorist Criminal Case No. 3/96 arising out of I.C.R.No. 94/93 of the police station Rak-hiyal, District Ahmedabad on account of non compliance of manda-tory provisions of Section 20A of TADA, is under challenge.
2. The learned counsel for the appellant has referred to the decision of three judges’ Bench of this Court in Anirudhssinji Karansinhji Jadeja and Anr. v. State of Gujarat JT 1995 (6) SC 146 = (AIR 1995 (5) SC 2390). It has been held in the said deci-sion that cognizance of the offence under TADA can be taken on compliance of the provisions of sub-section (1) of Section 20A and sub-section (2) of Section 20A of TADA. Sub-section (1) of Section 20A of the TADA provides:
20-A (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.’
3. The learned counsel has contended that in this case, the statutory authority as referred to in sub-section (1) of Section 20A of TADA has not given any prior approval for initiating the criminal proceedings under TADA. Therefore charges under TADA cannot be invoked.
4. It is, however, contended by the prosecution that on the very date when investigation has been made in this case, the Commissioner of Police, Ahmedabad was present and he had given oral permission under Section 20A (1) of TADA. We may indicate here that considering the serious consequences in a criminal case initiated under the provisions of TADA, oral permission cannot be accepted. In our view, Section 20A (1) must be construed by indicating that prior approval of the statutory authority re-ferred to in the said sub-section must be in writing so that there is transparency in the action of the statutory authority and there is no occasion for any subterfuge subsequently by introducing oral permission.
5. That apart, in the facts of the case we have no hesitation to hold that even oral permission had not been granted. Dr. Ghatate, the learned counsel for the respondent has drawn our attention to two documents, namely, the letter addressed by the ACP Crime Branch, Ahmedabad to the Deputy Commissioner, Crime Branch, Ahmedabad city, for invoking Sections 3 and 5 of TADA in respect of Rakhial Police Station CR 1-94/93. This letter is dated 11th August, 1994. In the said letter, a request was made that in the facts indicated in the letter, it was necessary to invoke sections 3 and 5 of TADA and a request was made to grant approval accordingly. The other document placed before us by Dr. Ghatate is the permission given by D.C.P. on the basis of request made by the A.C.P. Crime Branch Ahmedabad. It appears that on 11.8.94 such permission had been granted by Mr.A.K.Surolia the Deputy Commissioner of Police Crime Branch, Ahmedabad City and such grant of permission is to the following effect:
‘Therefore, after a careful consideration I deem it fit that in this case relevant provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short TADA) are to be applied in the FIR and hence I grant permission for the same’.
6. Such letter on the face of it indicates that the alleged oral permission had not been granted by the Commissioner of Police otherwise there would not have been any occasion for seeking permission from an authority subordinate to the Commis-sioner of Police namely, the Deputy Commissioner of Police and consequential grant of permission by such subordinate authority. As the mandatory provisions of Section 20A (1) of TADA has not been complied with, the charge under the provisions of Section 3 and 5 of TADA cannot be sustained in the said criminal case. Therefore, such invocation of the provisions of TADA stands quashed. It is however made clear that it will be open to the concerned authority to proceed in accordance with law as indicat-ed in paragraph 16 of the decision of this Court in Anirudhsinh-ji’s case for invoking provisions of TADA. We make it clear that we have not considered as to whether or not in the facts of the case, a case under Sections 3 and 5 of TADA has been made out because the condition precedent for invoking such provisions had not been complied with. Such question is therefore kept open to be considered at the appropriate stage. This appeal is according-ly disposed of.
