Karansinhjijadeja & Anr Vs. The State of Gujarat  INSC 379 (11 August 1995)
B.L. (J) Hansaria B.L. (J) Ahmadi A.M. (Cj) Sen, S.C. (J) Hansaria, J.
1995 AIR 2390 1995 SCC (5) 302 JT 1995 (6) 146 1995 SCALE (4)715
two appellants are in jail being accused of having committed offences, inter alia
under Sections 3 and 5 of the Terrorists and Disruptive Activities (Prevention)
Act, 1987 (for short 'the TADA'). Their prayer is to release them on bail,
which has been denied by the Designated Court.
In support of this plea, a large number of points were raised before us in
course of arguments. It is not necessary to go into all these questions as,
according to us, the appeal deserves to be allowed on the sole ground of wrong
invocation of TADA in the case of the appellants.
bring home the above, we may note the prosecution case in short, which is that:
March 15, 1995 one Jayantilal Mohanlal Vadodaria who is a son of elder brother Mohanlal
Kalabhai of the complainant, was murdered by some assailants near Ashapura Dam
at the distance of 3 K.M. from Gondal town. So on receiving this information,
the complainant went to the scene of offence where a dead body of his nephew Jayantilal
was lying. One Vespa-scooter of the deceased was also lying there. It was found
that there were injury marks by fire on the body of the deceased.
was a certridge of red colour which was used, was lying near the body.
further stated in the complaint that deceased Jayantilal was travelling on his
scooter for going to his vadi from his house at 4.00 p.m. as usual and he was passing throught the way of Ashapura
Dam. His vadi is situated on the road of Kotda Sangani Village".
has been alleged that deceased Jayantilal, aged 32 years, was a resident of Gondal
and was a leading member of the Patel community. Previously, he was a member of
the Gondal Nagar Palika and also Director of Gondal Nagrik Sahakari Bank. The
post-mortem revealed that the deceased had received gun-shot injuries and also
injuries caused by knives. The murderers had come in a white Ambassador Car No.
GIG-375 and had fired twice at the deceased and had caused injuries by sharp
weapons. After killing the deceased, the murderers absconded. The car was
ultimately recovered from a place within Jamkandorna Police Station, and all
the four accused were arrested there on 16.3.1995 at 2115 hours.
further allegation is that the four persons, after committing the murder, went
to Anirudhsinh Karansinh Jadeja, Sarpanch of village Mota Umvada and a resident
of that village and sought refuge. Anirudhsinh was in his field at that time (5.30 P.M.) and Digubha Jadeja was present there.
declined to provide shelter but agreed to keep the weapons. One country-made
gun with cartridges and two knives were packed in a kundle and Vishubha and Digubha
had concealed the bundle by digging a pit on the ground of a small room in the
field belonging to Anirudhsinh. After hiding the weapons, Vishubha along with
other alleged murderers left the field and went away by the white Ambassador
car in which they had come. Police arrested and started criminal proceedings
not only against the alleged murderers but also againstAnirudhsinh Jadeja and Digubha
Jadeja, the appellants herein.
(appellant No.1) was produced before the Executive Magistrate, Gondal, on
18.3.1995 on the allegation that one country made gun and cartridges were
recovered from his field and a case was registered against him under Section
25(1)(b) of the Arms Act bearing Crime Registration No.28/95. The allegation
against Digubha; appellant was that he had abetted in secreting the weapon.
They were arrested and produced before the Executive Magistrate who granted
five days' remand. On a prayer made on behalf of the appellants on 23.3.1995,
the Executive Magistrate directed the police authorities not to ill-treat the
appellants. On 24th
March, 1995 the
Executive Magistrate sent all the accused persons, including the appellants, to
hospital where they were kept till 27th March, 1995. Thereafter, an order was passed on
27th March, 1995 by which all the accused were
remanded to judicial custody. On behalf of the State, the order of the
Magistrate refusing police remand was challenged before the Sessions Judge. On 28th March, 1995 the appellants had made an
application for bail, which was rejected by the Designated Court on 18th
April, 1995. Hence this
appeal to this Court by special leave.
first point to be decided is about the legality of invocation of TADA. Its
Section 20-A lays down:- "Congnizance 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.
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".
Therefore, condition precedent for recording an information about the
commission of an offence under TADA is the approval of the District
Superintendent of Police and cognizance of any offence under TADA cannot be
taken by any court `without the previous sanction of the Inspector- General of
Police, or, as the case may be, the Commissioner of Police'. The provision of
the statute is clear that the District Superintendent of Police under sub- section(1)
can grant approval/sanction for recording of any information about commission
of an offence under TADA. The jurisdiction under Section 20A (1)to grant
approval for recording of any information about the commission of an offence
under TADA, has been vested in the District Superintendent of Police.
the instant case, a specific point has been taken in the Special Leave Petition
that prior approval, as required by section 20A(1) of TADA, was not taken. This
section was introduced to safeguard the citizens from vexatious prosecution
under TADA. The Designated
Court had failed to
appreciate that the DSP had not given prior approval and the case of the appelants
under TADA was, therefore, nonest.
This ground appears to be of substance. The DSP did not exercise the
jurisdiction vested in him under Section 20A (1). On the contrary, he abdicated
his jurisdiction and referred the matter to the Additional Chief Secretary,
Home Department, on 17th March, 1995, requesting for permission to invoke the
provisions of Sections 3 and 5 of TADA by sending a report for this purpose as
under:- "In the matter of Gondal City Police Station I.C.R. NO.34/1995
under Section 302. 120-B of the Indian Penal Code and Indian Arms Act Section
25(1) (c) of the Indian Arms Act the facts are that the victim, i.e., the
deceased Jayantibhai Mohanbhai Vadodaria, aged 32, resident of Yoginagar, Gondal
was an active member of B.J.P. and was a leader of Patel community. In past, he
was member of Gondal Municipality and was also a director in Gondal Nagrik Sahakari Bank
Ltd., which is managed by B.J.P. on 15.3.1995 when the First Chief Minister of
B.J.P. Government took oath and installation ceremony was being performed at Gandhinagar,
on that very day in the evening at 14-30, Jayantibhai Vadodaria was killed on Ashapura
Dam by firing shots and by sharp weapons. The complaint of this murder is
lodged by Shri Nanalal Kalabhai Patel, the uncle of deceased and on the
strength of that complaint, on making investigation, it is revealed that the
murderers had come in white coloured Ambassador car No. GRG 375 and had fired
twice on him and had also caused injuries by sharp weapons and killed Jayantibhai
and then they have absconded. In this case during the investigation, the names
of following persons are disclosed:
alias Dineshsinh Kiritsinh Jadeja, Resident of Gondal.
Jalamsinh Jadeja, Dismissed Constable of SRP, resident of Sindhavadar. Tal Gondal.
Abhesinh Jadeja, (SRP Constable) resident of Gondal.
Chandrasinh Chudasam, resident of Virpur (Jetpur).
the course of investigation, on 16.3.1995 at 21-15 all the four accused are
arrested from the limits of Jam- kandorna Police Station along with the car
used in the offence.
the four accused declare during investigation that they reside in Gondal and
when accused No.2 and 3 was in need of loan from Gondal Nagrik Sahkari Bank and
had contacted the deceased who was director of the said Bank at that time, the
deceased had told to the applicant, i.e., accused No.2 and 3 herein that `Go Go,
this Bank is not meant for Darbars;
getting loans, only Patels may come to me and no Darbar can get loan'. On this
talk, there was quarrel. This quarrel had taken place before about 10 or 12
days and since then the said four Darbars had decided to kill Jayantibhai,
else, the strength of Patels will be increasing, therefore, since last 10 days,
they were planning to kill Jayantibhai and on 15.3.1995 on finding an
opportunity, they have killed him. In past also the murder of MLA of Gondal, Popatbhai
Sorathia by the member of Darbar community. Therefore, on happening of the
present incident, the members of Patel community are feared and frightened and
nobody dared to come to Police Station. Later on Jayantibhai Dhol a leader of
Patel community , informed us on telephone at Rajkot and told about the incident and requested to make some
arrangement and to direct the local police to reach at the scene of offence.
Therefore, we informed local police and after the local police reached on the
scene of offence, the family members of the deceased could went there.
the accused who have committed the murder belong to Darbar community and by
committing murder of Patel leader, they have created enmity between the two community.
In Gondal City in past also the Darbar community have committed the murder of
Patel leader and now also Jayantibhai is murdered mercilessly by firing shots
and knife blows and they have spread the atmosphere of terror and fear.
the harmony between the two community is very seriously and adversely affected.
because of this incident, the people in that area had started running and
moving here and there and the hawkers doing business in hand-crafts were also
frightened and ran away. The police force in large number was put on patrolling
and numerous vehicles and police officers were put to patrolling and only
thereafter public could dare to come out from home.
the above facts, it is clear that the accused have committed offence under
Sections 3 and 5 of the Terrorist and Distruptive Activities (Prevention) Act,
1987 by keeping illegal weapons and by keeping ammunition and therewith
murdering the citizen, they have done the act of terrorist and offence under
Section 5 of the said Act is committed.
I.B. of Gujarat State has also reported that due to this incident and as a
reaction of this incident, the enmity prevailing in Saurashtra between Darbar
and Patel Community may intensify and opposite party, i.e., Patels may also
indulge in such activities.
the situation which has arisen permission may please be given to invoke the
provisions of Sections 3 and 5 of the TADA in this matter.
in English District Police Superintendent Rajkot Rural, Camp at Gondal".
The Deputy Director-General of Police and the Additional Director- General of
Police also sent FAX Messages to the Chief Secretary on 18th March, 1995,
requesting him to grant the prayer of the DSP and permit him to proceed under
TADA. On 18th March,
1995, the Additional
Chief Secretary, Home Department, gave sanction/consent to apply provisions of
TADA; and the District Superintendent of Police, Rajkot Rural, was informed
accordingly. There is nothing in the Act to suggest that the Additional Chief
Secretary has to grant permission to the District Police Superintendent for
proceeding under TADA.
The case against the appellants originally was registered on 19th March, 1995 under the Arms Act. The DSP did not
give any prior approval on his own to record any information about the
commission of an offence under TADA.
contrary, he made a report to the Additional Chief Secretary and asked for
permission to proceed under TADA.
it because he was reluctant to exercise jurisdiction vested in him by the
provision of Section 20A (1)? This is a case of power conferred upon one
authority being really exercised by another. If a statutory authority has been
vested with jurisdiction, he has to exercise it according to its own
discretion. If the discretion is exercised under the direction or in compliance
with some higher authority's instruction, then it will be a case of failure to
exercise discretion altogether. In other words, the discretion vested in the
DSP in this case by Section 20A (1) was not exercised by the DSP at all.
Reference may be made in this connection to Commissioner of Police vs. Gordhandas
Bhanji, 1952 SCR 135, in which the action of Commissioner of Police in cancelling
the permission granted to the respondent for construction of cinema in Greater
Bombay at the behest of the State Government was not upheld, as the concerned
rules had conferred this power on the Commissioner, because of which it was
stated that the Commissioner was bound to bear his own independent and
unfettered judgment and decide the matter for himself, instead of forwarding an
order which another authority had purported to pass.
has been stated by Wade and Forsyth in 'Administrative Law', 7th Edition at
pages 358 and 359 under the heading 'SURRENDER, ABDICATION, DICTATION' and sub-
heading "Power in the wrong hands" as below:- "Closely akin to
delegation, and scarcely distingushable from it in some cases, is any
arrangement by which a power conferred upon one authority is in substance
exercised by another. The proper authority may share its power with some one
else, or may allow some one else to dictate to it by declining to act without
their consent or by submitting to their wishes or instructions. The effect then
is that the discretion conferred by parliament is exercised, at least in part,
by the wrong authority, and the resulting decision is ultra vires and void. So
strict are the courts in applying this principle that they condemn some
administrative arrangements which must seem quite natural and proper to those
who make them.....".
and their departments have several times fallen foul of the same rule, no doubt
equally to their surprise....".
The present was thus a clear case of exercise of power on the basis of external
dictation. That the dictation came on the prayer of the DSP will not make any difference
to the principle. The DSP did not exercise the jurisdiction vested in him by
the statute and did not grant approval to the recording of information under
TADA in exercise of his discretion.
The aforesaid is however not all. Even if it be accepted that as an additional
safeguard against arbitrary exercise of the drastic provisions, the State
Government had provided by administrative instructions an additional safeguard
where under the DSP was required to obtain the sanction/consent of the State
Government, we are of the view that in the present case the same was given by
the State Government without proper application of mind. We have taken this
view because the sanction/consent was given by the Government merely on the
basis of the FAX message dated 17.3.1995 of the DSP. The reason for our saying
so is that though there is on record a FAX message of Deputy Director General
of Police also, which is dated 18.3.1995, the sanction/ consent order has
mentioned above the FAX message of the DSP only. Now, no doubt the message of
the DSP is quite exhaustive, as would appear from that message which has been
quoted above in full, we are inclined to think that before agreeing to use of
harsh provisions of TADA against the appellants, the Government ought to have
taken some steps to satisfy itself whether what had been stated by the DSP was brone
out by the records, which apparently had not been called for in the present
case, as the sanction/consent was given post haste on 18.3.1995, i.e., the very
next day of the message of the DSP. It seems the DSP emphasised the political
angle in the first two paragraphs of his message.
dispute or motive stated was that the Darbars were annoyed because they were
refused loan and not because of any political rivalry. In the third paragraph
there is reference to statements of accused after arrest which would ordinarily
be inadmissible in evidence. Reference to avoid incident of the past does not
provide any nexus. The State Government gave the sanction without even discussing
the matter with the investigating officer and without assessing the situation
independently. All these show lack of proper and due application of mind by the
State Government while giving sanction/consent.
For the aforesaid twin reasons we state that the entire proceeding against the
appellants under TADA is vitiated and the same is, therefore, quashed. It would
however be open to the respondents to proceed against the appellants even under
the TADA in accordance with law.
Insofar as other offence is one under Section 25(1) (b) of the Arms Act is
concerned, no contention has been advanced to deny bail to the appellants. We,
therefore, order the release of the two appellants on bail on each of them
furnishing a bond of Rs. 10,000/- with one surety in the like amount. The
appellants shall observe the following conditions also after release on bail:
They shall make themselves available for interrogation by police as and when
They shall not directly or indirectly make any inducement, threat or promise to
any person acquainted with the facts of the case so as to dissuade them from
disclosing such facts to the court or to police.
They shall not leave the State of Gujarat without the permission of the Designated Court.
The appeal is allowed accordingly.