Balbir Singh Vs. State of Delhi  Insc 710 (21 June 2007)
Dr. ARIJIT PASAYAT & P.P. NAOLEKAR
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment rendered by a learned Judge,
Designated Court II, Delhi, in Sessions Case No.48 of 2001 holding that the
proceedings can be legally continued against the appellant and took cognizance
of offence punishable under Sections 3, 4, 5 and 6 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (in short the 'TADA Act') and
Sections 25 and 26 of the Arms Act, 1959 (in short the 'Arms Act').
2. The controversy lies within a very narrow compass and a brief reference
to the factual aspects would suffice.
The appellant and one Paljit Kaur @ Richpal Kaur @ Pali wife of Paramjit
Singh had allegedly committed offence punishable under Sections 3, 4, 5 and 6
of TADA Act and Sections 25 and 26 of the Arms Act. Charge
sheet was filed on 20.8.1993. The allegations related to alleged commission of
offence on 5th December, 1992. By amendment to TADA Act, Section 20-A(2) was
introduced with effect from 22.5.1993 i.e.
prior to filing of the charge sheet. Charges were framed on 16.12.1993. Bail
was granted to the appellant on 6.5.1994.
Subsequently, on expiry of eight years' currency period, the term of TADA
Act expired on 23.5.1995. By order dated 19.4.1997 the Designated Court held
that in absence of sanction of the Commissioner of Police as required under
sub- section (2) of Section 20-A of TADA Act, the proceedings were non est and
the cognizance taken by the Court for offences under the TADA Act was bad in
3. The expression used by the concerned Court in the judgment dated
19.4.1997 was "acquittal of the accused persons for the want of
sanction". Subsequently, pursuant to the order by the concerned Court
goods seized were retained 3.2.1998. On 4.7.2001 sanction was accorded and the
order in that regard was passed and the charge sheet was filed on 18.7.2001 and
summons were issued on 2.3.2002 by the impugned order.
4. The Court over-ruled the objections raised by the appellant that the
proceedings were non est as it virtually amounted to infraction of Section 300
of the Code of Criminal Procedure, 1973 (in short the 'Code'). The Designated
Court did not accept the plea and observed that though the expression
"acquittal" was used, in essence it cannot be an order of acquittal
on merits of the case and could only operate as an order of discharge.
5. In support of the appeal, learned counsel for the appellant submitted
that the view expressed by the lower court is unsustainable. According to him,
after a long passage of time and the expiry of currency of Statute itself the
continuance of the proceedings would be sheer abuse of the process of the
6. Learned counsel for the respondent-State supported the order of the lower
7. The position seems to be unexceptionable that the concerned Court by
judgment dated 19.4.1997 could not have directed acquittal. In the absence of
sanction the Court had no jurisdiction to proceed in the matter and take
cognizance of the offence. But the order passed in that regard cannot lead to
acquittal of the accused.
8. Section 20-A (2) of the Act reads as follows:
"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."
9. Section 20-A(2) operate as a bar on taking cognizance of the offence.
10. The effect of such an order has been considered by Federal Court in Bas
Deo Agarwala v. King Emperor (AIR 1945 FC 16). The relevant portion of the
judgment reads as under:
"That the prosecution launched without valid sanction is invalid and or
that under the common law a plea of autrefois acquit or convict can only be
raised where the first trial was before a court competent to pass a valid order
of acquittal or conviction. Unless the earlier trial was a lawful one which
might have resulted in a conviction, the accused was never in jeopardy."
11. The principles set out in Bas Deo Agarwala's case (supra) were followed
in Falli Mulla Noor Bhoy v. The King (AIR 1949 PC 264). The factual scenario in
that case was that after framing of the charge the Magistrate acquitted the
accused after coming to the conclusion that the sanction as required by law was
not there and the trial was incompetent. It was held that the order of
acquittal was without jurisdiction and could only operate as an order of
discharge because the Magistrate in such a case ought to discharge the accused
on the ground that he had no jurisdiction to try him.
12. This Court in Mohd. Safi v. State of West Bengal (AIR 1966 SC 69)
observed as follows:
"Where a Court comes to such a conclusion albeit erroneously it is
difficult to appreciate how that court can absolve the person arraigned before
it completely of the offence alleged against him. Where a person has done
something which is made punishable by law he is liable to face a trial and this
liability cannot come to an end merely because the court before which he was
placed for trial forms an opinion that it has not jurisdiction to try him or
that it has no jurisdiction to take cognizance of the offence alleged against
Where, therefore, a court says, though erroneously that it was not competent
to take cognizance of the offence it has no power to acquit that person of the
So far as applicability of Section 300 (1) of the Code is concerned,
essentially the conditions for invoking the bar are: (i) the Court had
jurisdiction to take cognizance and try the accused and (ii) the Court has
recorded an order of conviction or acquittal and such conviction/acquittal
remains in force.
13. The question relating to delayed sanction needs to be noted in the
background of what this Court observed in P.
Ramachandra Rao v. State of Karnataka (2002 (4) SCC 578). In para 29 it was
observed as follows:
"29. For all the foregoing reasons, we are of the opinion that in
Common Cause case (I) (1996 (4) SCC 33) (as modified in Common Cause (II) (1996
(6) SCC 775) and Raj Deo Sharma (I) and (II) (1998(7) SCC 507 and 1999 (7) SCC
604) the Court could not have prescribed periods of limitation beyond which the
trial of a criminal case or a criminal proceeding cannot continue and must
mandatorily be closed followed by an order acquitting or discharging the
accused. In conclusion we hold:
(1) The dictum in A.R. Antulay case is correct and still holds the field.
(2) The propositions emerging from Article 21 of the Constitution and
expounding the right to speedy trial laid down as guidelines in A.R.
Antulay case adequately take care of right to speedy trial. We uphold and
reaffirm the said propositions.
(3) The guidelines laid down in A.R. Antulay case are not exhaustive but
They are not intended to operate as hard-and- fast rules or to be applied
like a straitjacket formula. Their applicability would depend on the fact
situation of each case. It is difficult to foresee all situations and no
generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to
draw or prescribe an outer limit for conclusion of all criminal proceedings.
The time-limits or bars of limitation prescribed in the several directions made
in Common Cause (I), Raj Deo Sharma (1) and Raj Deo Sharma (II) could not have
been so prescribed or drawn and are not good law. The criminal courts are not
obliged to terminate trial or criminal proceedings merely on account of lapse
of time, as prescribed by the directions made in Common Cause case (I), Raj Deo
Sharma case (I) and (II). At the most the periods of time prescribed in those
decisions can be taken by the courts seized of the trial or proceedings to act
as reminders when they may be persuaded to apply their judicial mind to the
facts and circumstances of the case before them and determine by taking into
consideration the several relevant factors as pointed out in AR. Antulay case
and decide whether the trial or proceedings have become so inordinately delayed
as to be called oppressive and unwarranted. Such time-limits cannot and will
not by themselves be treated by any court as a bar to further continuance of
the trial or proceedings and as mandatorily obliging the court to terminate the
same and acquit or discharge the accused.
(5) The criminal courts should exercise their available powers, such as
those under Sections 309, 311 and 258 of the Code of Criminal Procedure to
effectuate the right to speedy trial. A watchful and diligent trial Judge can
prove to be a better protector of such right than any guidelines. In
appropriate cases, jurisdiction of the High Court under Section 482 Cr.P.C and
Articles 226 and 227 of the Constitution can be invoked seeking appropriate
relief or suitable directions.
(6) This is an appropriate occasion to remind the Union of India and the
State Governments of their constitutional obligation to strengthen the
judiciary quantitatively and qualitatively by providing requisite funds,
manpower and infrastructure. We hope and trust that the Governments shall act.
We answer the questions posed in the orders of reference dated 19.9.2000 and
26.4.2001 in the abovesaid terms."
14. The impugned order passed by the Designated Court does not suffer from
any infirmity to warrant interference. However, the trial Court is requested to
dispose of the matter as early as practicable preferably within 6 months from
the date of communication of this order.
15. The appeal is dismissed.