Alias Pappu Bhudharmal Kalani Vs. The State of Maharashtra  Insc 131 (2 March 2001)
Thomas & D.P. Mohapatra D.P.Mohapatra, J.
Appeal Nos.66-67/1999 and Criminal Appeal Nos. 572-73 of 1999
these three sets of appeals the judgment/order passed by the Designated Court
of Thane at Pune on 10th
November, 1998 in
T.S.C. No.25/92 and 9/93 has been challenged.
Appeal Nos. 1298-99/98 and Criminal Appeal Nos.66-67/99 have been filed by the
accused persons against rejection of the petition filed by them under section
18 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 [for
short the TADA (P) Act ] . Criminal Appeal Nos.572-573/1999 have been filed by
the State of Maharashtra against finding recorded by the Special Court that on
the materials placed on record by the prosecution no charge can be framed under
section 3 of the TADA (P) Act. Since the incidents giving rise to the criminal
cases are the same and the appeals are directed against the same judgment/order
for the sake of convenience we will state the facts and deal with the case in
Criminal Appeal Nos.1298-99/ 1998 in detail.
this appeal filed under section 19 of the TADA (P) Act, accused no.4 (Suresh @ Pappu
Bhudharmal Kalani) of T.S.C.No.25/1992, has challenged the order passed by the
Designated Court of Thane rejecting the application filed by him under section
18 of the Act for discharging him from the charges under sections 3 and 5 of
the TADA (P) Act and to transfer the case to the Sessions Court on the ground,
inter alia, that no case under section 3 or section 5 of the TADA (P) Act is
made out against him.
prosecution case, shortly stated, is as under:- One Dunichand Kalani, who was
the President of Ulhasnagar Taluka Congress, used to make complaints against
one Gopal Rajwani and his political supporters about their criminal activities.
On 9th of April 1989 at about 9.00 p.m. the
said Dunichand Kalani was murdered on a public road by 10-12 persons armed with
weapons like knives, gupties, revolvers, etc. On the FIR lodged by one Narayan Budharmal
Kalani at Ulhasnagar Police Station a case under sections 302, 147,148,149 of
the Indian Penal Code and section 25 of the Arms Act was registered against Gopal
Rajwani and some others. In the said case the provisions of TADA (P) Act was
involved and it was registered as C.R.No.T-296/89 under section 3 of the TADA
(P) Act and under sections 147,148,149 and 120B, 302 of IPC and section 25 of
the Arms Act. After investigation charge-sheet was filed in the case against 23
persons. The appellant is the nephew of deceased Dunichand Kalani. Both Gop Beharani
as well as the accused no.4 were elected as Municipal Councillors and a dispute
arose between them on account of claim over Presidentship of the Ulhasnagar
Municipal Council . On this account, it is alleged, that there was enmity
between Gop Beharani and accused no.4.
10.7.1992 while the deceased Maruti Dagadu Jadhav was sitting in his office at
about 8.15 p.m. and chit- chatting with one Arun Kaklij,
one white coloured Maruti van No.MH-12-1042 came near his offfice and three
persons alighted from the same and rushed inside the office. Those three
persons fired bullets at Maruti Dagadu Jhadav from the revolver held by them.
In the incident Arun Kaklij was also injured. After the incident the assailants
escaped in the Maruti van. The FIR was recorded by PSI of the Vithalwadi Police
Station on the dying declaration made by Maruti Dagadu Jadhav in which he gave
the description of three assailants. The motive for the murder was ascribed to
previous enmity. Thereafter Maruti Degadu Jadhav was admitted in the nursing
home for treatment. At about 10.35 p.m. on
the same day i.e. 10th July
, 1992, he succumbed
to the injuries. Thereafter the case registered under sections 147, 148, 149
and 307 IPC and section 25(1)(A) of the Arms Act was changed from section 307
to section 302 IPC. On 20th
July 1992 the
provisions of section 5 of the TADA (P) Act was invoked in the case. In course
of investigation it came to light that there was long standing enmity between Gopal
Rajwani and Pappu Kalani, and they have murdered the trusted men of each other
due to rivalry and on account of enmity. According to the prosecution accused
No.4 and other accused armed with revolvers and pistols killed Maruti Jadhav
and attempted to murder Arun Kaklij.
further case of the prosecution is that the other co-accused has used un-licenced
revolvers and pistols attracting the offence under sections 3 and 5 of the TADA
(P) Act and section 25 of Arms Act in addition to the sections of IPC.
accused No.4 filed the application under section 18 of the TADA (P) Act
stating, inter alia, that the entire charge-sheet and the materials collected
by the investigating agency do not disclose any offence under section 3 or
section 5 of the TADA (P) Act . The other offences alleged to have been
committed by the accused are not triable by the special court. He, therefore,
prayed that he may be discharged from the provisions of the TADA (P) Act and
the case may be transferred to the Sessions Court, Thane for trial of the
offences under IPC and Arms Act, if any.
to the prosecution there are two groups in Ulhasnagar, one is headed by Gopal Rajwani and the other by Pappu Kalani. The
deceased Maruti Jadhav was the body- guard of Gopal Rajwani. The deceased Maruti
Dagadu Jadhav and one Krishna Pillaye were the eye-witnesses to the murder of Lalu
in the year 1989 at Hotel Sun-N-Sand Bombay. The said Krishan Pillaye was murdered,
thereafter Maruti Dagadu Jadhav was the only remaining eye witness in the said
case in which notorious gangsters have been involved. From these facts,
according to the accused no.4, it was crystal clear that murder of Maruti Dagadu
Jadhav was either because of the fact that he was an eye witness against some
dangerous criminals or he was a victim of a gang war. The accused contended
that in either case it disproves the commission of terrorist act which requires
that the act must be done with the intention to strike terror in the people
which is an expression of much wider import. The accused alleged that the
police has fabricated certain confessions which were purely involuntary and
even these alleged confessions spelt out no offence under section 3 or section
5 of the TADA (P) Act. None of the confessions recorded in the case satisfies
the mandatory requirement of the TADA (P) Act and as such they cannot be used
as evidence. Invocation of the TADA (P) Act in this case is otherwise wrong and
learned special Judge has discussed in great detail, to some extent unnecesarily,
different aspects of the case, the scope of inquiry at the stage of framing
charge under section 227 of the Code of Criminal Procedure, the manner in which
the evidence collected by the investigating agency is to be sifted at that
stage and the approach to the question whether the charge should be framed
against the accused and he should be called to face the trial or he is to be
discharged from the case at that stage. The learned special Judge has noticed
several judgments of the Supreme Court and different High Courts on these
points and quoted extensively from them. He has also dealt with in detail the
statements made by the witnesses who are proposed to be examined in support of
the prosecution case.
not feel it necessary to repeat the discussions on the different points and the
decisions which have been referred to in the judgment. However we notice a few
recent decisions of this Court touching on the question. In the case of State
of Maharashtra vs. Priya Sharan Maharaj and others (1997) 4 SCC 393, this Court
referring to the case of Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj
Bijjaya, (1990) 4 SCC 76, held that at the stage of sections 227 and 228 the
Court is required to evaluate the material and documents on record with a view
to finding out if the facts emerging therefrom taken at their face value
disclose the existence of all the ingredients constituting the alleged offence.
The Court may, for this limited purpose, sift the evidence as it cannot be
expected even at that initial stage to accept all that the prosecution states
as gospel truth even if it is opposed to common sense or the broad
probabilities of the case. Therefore, at the stage of framing of the charge the
Court has to consider the material with a view to find out if there is ground
for presuming that the accused has committed the offence or that there is not
sufficient ground for proceeding against him and not for the purpose of
arriving at the conclusion that it is not likely to lead to a conviction.
supplied) 6 SCC 338, this Court referring to several previous decisions, held
that the crystallised judicial view is that at the stage of framing charge, the
court has to prima facie consider whether there is sufficient ground for
proceeding against the accused. The court is not required to appreciate
evidence to conclude whether the materials produced are sufficient or not for
convicting the accused.
supplied) The learned special Judge in para 18 of the order extracting from the
Judgment of the Bombay High Court in Rudolf Fernandes vs. State of Goa (1993 Mh.L.J.
1664), observed and in our view rightly, that each case depends upon its
particular facts and circumstances and sometime even a remote link between the
activities of an accused and the facts of the case may justify a reasonable
inference warranting a judicial finding that there is ground for presuming that
an accused has committed the offence or at least to presume that the question
of his being directly or indirectly involved in the commission of such offence
is not to be ruled out.
24 to 31 he has considered the question whether the offences under section 3
and 5 of the TADA (P) Act are made out against the accused without taking aid
of the confessional statement of the accused.
sifting the materials and after considering the contentions raised on behalf of
the prosecution and the accused, the learned special Judge held: On perusal of
all the statements of the witnesses it clearly appears that this was of rivalry
between two goons and for some reasons which is mentioned by the prosecution
that Maruti Jadhav was an eye witness to one of the murder incidents and
therefore he was liquidated. There is no other evidence on record to show that
the accused persons had committed these acts i.e.firing at Maruti Jadhav to
strike terror in the prople or section of the people.
paragraph 32 the learned special Judge has considered the question whether the
offence under section 3(1) of the TADA (P) Act is attracted in the case.
Testing the case on the principles laid down by the Supreme Court in Niranjan
Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijjaya case (1994) 5 SCC 369
the Court held in para 35 of the order that the allegation of the prosecution
regarding intention to strike terror are not clearly mentioned in the
intention of the accused is not to strike terror in the people or any section
of the people, but to liquidate the persons who are eye witnesses to the
earlier incident or the offences committed by the accused. The learned special
Judge further observed :
the fact remains that the prosecution has not produced sufficient evidence on
record to justify the inference that the accused while committing the murder of
Maruti Dagadu Jadhav or attempting to commit murder of Arun Kaklij (these
contentions are taken on the basis of the evidence through the statements
adduced by the prosecution on record) by using fire arms, despite Raju Jadhav
and Pruthviraj Baviskar in their statement after about 3 months submitted that
due to the fear of the accused, they could not tell the names of the assailants
earlier, that fact by itself will not make out the intention of the accused u/s
3 of the TADA. True that use of fire arms is in one of the ingredients to be
covered u/s 3 of the TADA. But even then the intention, as stated above, should
be coupled with it and in its absence, the charge u/s 3(1) of TADA cannot
sustain in view of the above authorities particularly in the cases of Hitendra Thakur,
Niranjan Singh, Kashmir Singh and Bonkya. Consequently, charge u/s 3(13) of the
TADA can also not be framed as these offences are inter-linked with Section
3(1) of the TADA.
37 onwards the learned special Judge has discussed the question as to whether
prima facie offence under section 5 of the TADA has been made out, for the
purpose of framing of the charge against the accused person.
Court has taken note of the observations in Sanjay Dutts case reported in 1995 Crl.
L J 477 to the following effect :
prosecution for an offence punishable u/s 5 of TADA the prosecution is required
to prove, that the accused was in conscious possession unauthorisedly, in a
notified area of any of the arms and ammunition specified in columns 2 and 3.
No further nexus with any terrorist or disruptive activity is required to be
proved by the prosecution in view of the statutory presumption.
further observed that once the prosecution has proved unauthorised conscious
possession of any of the specified arms and ammunition etc. in a notified area
by the accused, the conviction would follow on the strength of presumption
unless the accused proves the non-existence of fact essential to constitute any
of the ingredients of the offence.
49 of the Order the learned special Judge held that: On perusal of the
allegations against the accused persons, it would be seen that this is not the
case of only possession of arms and ammunition by the accused, but it is a case
of its use for causing the death of one person and injuring the other.
59 of the order the learned Judge observed that: some empty cartridges were
recovered from the person of the deceased as well as from the injured and from
the possession of the same by the accused is explicit and apparent.
61 the learned Judge held that in the facts and circumstances of the case and
on the material on record it is not possible to say that the accused persons
did not possess the arms and ammunition.
64 of the order it is observed that: the fact remains that if evidence of eye
witnesses is accepted, then the possession of arms and ammunitions at the
relevant time will have to be held to be proved and when we are considering the
case for discharge of the accused, it will have to be held that in such
circumstances, the accused cannot be discharged for the offence under section 5
of the TADA Act.
65 of the order the learned special Judge took note of the position that if the
case is tried by Designated Court the said Court can try the offence under the
TADA (P) Act as well as the offences coupled with those under I.P.C. and if the
case is tried by the Sessions Court the said Court cannot try the offences
under the provisions of the TADA Act. He was of the opinion that in case of
doubt such cases should be tried by the Designated Court itself. The learned Special Judge observed that the area in
which the alleged offences are said to be committed, is not stated to be not
notified area and the accused do not claim possession of used arms and
ammunition in incident, as authorised.
on conviction it would be obvious that offence under section 5 of the TADA
would be made out but the Sessions Court will not be able to try the offence
and convict the accused for that offence. Then the learned Special Judge summed
up his conclusions in these words:
on that conviction it would be obvious that the offence under section 5 of the
TADA Act would be made out, but the sessions court may not be able to try that
offence and convict the accused for that offence and, therefore, in my opinion,
the result of the above discussion would be that the accused cannot be
discharged from the offence under section 5 of the TADA Act and consequently,
no order under section 18 of the TADA Act to transfer these cases to the Court
of Sessions, Thane, can be passed.
the learned Judge proceeded to consider the cases of the individual accused
persons and came to the conclusion expressed in these words:
true that these incriminating statements are recorded after considerable time.
But, as stated above, statements of the witnesses have to be taken at their
face value. It is already pointed above that while considering the discharge
application of the accused, the evidence is not to be assessed meticulously. It
is also necessary to state that at that stage, it cannot be considered as to
whether the case will surely end in conviction or not, although possibility of
sure acquittal for some reason may be considered for this purpose. On the basis
of the statements on record which are filed along with the charge-sheet
ex-facie, it is not possible to hold that on that particular day, accused Pappu
Kalani and accused Akbar were not associated with the assailants named in the
statements of the eye witnesses at the material time, in an incriminating
concluding portion of the order reads:
view of the above findings, the applications of the above accused for discharge
for the offence under section 5 of the TADA Act cannot be allowed. Hence, they
are rejected to that extent.
of the accused for transfer of the case under section 18 of the TADA Act is
charges against the accused will be framed after hearing both the counsel in
pursuance of the above observations.
trial is already expedited.
have carefully perused the order of the Special Judge, which is under challenge
and other relevant documents. We are not satisfied that the order passed by the
Special Judge suffers from any jurisdictional error in the approach to the case
or in sifting of the materials for the purpose of ascertaining whether a prima
facie case under Sections 3 and 5 of the TADA (P) Act is made out against the
appellant and in arriving at the conclusions as expressed in the order.
18 of the TADA (P) Act provides that where, after taking cognizance of any
offence, a Designated
Court is of opinion
that the offence is not triable by it, it shall, notwithstanding that it has no
jurisdiction to try such offence, transfer the case for the trial of such
offence to any court having jurisdiction under the Code. In this case the
learned special Judge has recorded the finding that a prima facie case under
section 5 of the TADA (P) Act has been made out. Therefore the petition filed
by the accused under section 18 of the TADA (P) Act was rightly rejected. The
finding recorded by the learned special Judge holding that on the materials
placed by the prosecution a prima facie case under section 3 of the TADA (P)
Act is not made out also does not suffer from any serious illegality.
circumstances the judgment/order passed by the learned special Judge does not
warrant any interference.
the appeals, being devoid of merits, are dismissed. Hearing of the cases be
expedited. The records be returned forthwith.