Rangku Dutta @ Ranjan
Kumar Dutta Vs. State of Assam
J U D G M E N T
Ganguly, J.
Heard learned counsel
for the parties.
This is a statutory
appeal under Section 19 of Terrorist and Disruptive Activities (Prevention) Act,
1987 (hereinafter referred to as "the said Act") impugning an order dated
10.9.2009 passed by the Designated Court TADA. The learned counsel appearing for
the sole appellant has impugned the judgment of the designated court (TADA) on
various grounds but at the time of arguments, he made emphasis on a particular ground,
namely, that in the instant case, the FIR has been recorded in clear violation of
the provisions contained under Section 20(A)(1) of the said Act, as a result whereof,
the entire proceeding subsequent thereto has been vitiated and this has also vitiated
the judgment and order of the designated court.
The material facts of
the facts are these. That FIR was lodged on 6.11.1993 by one Ajit Kumar Sarma, Office-in-Charge
of Bihpuria Police Station against several persons including the appellant. Of
the four accused persons, no charges were framed against Moni Pathak. In so far
as Bhaben Gogoi @ Bikram was concerned, he was acquitted by the designated court
and Indreswar Hazarika @ Babul Handique died during the pendency of the
proceedings before the designated court. Only Rangku Dutta @ Ranjan Kumar Dutta
was convicted and is the appellant before us. The FIR which has been lodged on 6.11.1993
runs as follows:- "I beg to report that on 5.11.93 at 2150 hrs. while SI
AQM Zahingir I/C Dholpur O.P. along with the PSO Hav. Loknath Konwar and other police
personnel were informed law and order duty in connection with Debraj Theatre
show at Dhalpur circle in open place by the side of Hill, some ULFA extremist
fired at SI AQM Zahingir and PSO Hav. Loknath under simultaneously from a close
range behind them and as a result both of them succumbed to injuries.
Earlier of this incident
on 5.10.93 an encounter took place between the ULFA with Dhalpur O.P. Place and
under the leadership of SI AQM Zahangir I/C Dhalpur O.P. where Lakhimpur Dist.
ULFA commander Jogen Gogoi killed and since them the banned ULFA activists
associates of Jogen Gogoi were planning with criminals conspiracy to liquidate
SI AQM Zahingir. On 5.11.93 evening the said ULFA activists with the help of Sri
ranku Dutta got identified SI AQM Zahingir and then ULFA extremist namely (1) Sri
Indreswar Hazarika @ Babul Handique (2) Sri Nobel Gogoi @ Bikram under the
leadership of Sri Moni Pathak @ Debo Pathak taking advantage of darkness attacks
simultaneously with fire arms and killed SI AQM Zahingir and PSO Hav. Loknath
Knowar. So I request to register a case under Section 120(B)/302 IPC R/W 3/4/5
TADA(P) Act, 1987 against the (illegible) ULFA activist and four others associates,
I have already taken up the investigation of the case."
On the basis of the FIR,
a case being Bihpuria Police Station Case No. 497 of 1993, was initiated under Section
120B/302 IPC read with Section 3 / 4 and 5 TADA (P) Act and the designated court
vide order dated 31st October, 2002 framed charges against the appellant, inter
alia, under Section 120(B)/302 of the Indian Penal Code and Section 3(2)(1) of
the said Act. Thereafter, the designated court by impugned judgment dated 10th September,
2009 passed in TADA Sessions Case No. 116 of 2000 found the appellant guilty of
offences punishable under Section 120B/302 IPC read with Section 3(2)(1) of the
said Act and sentenced him to undergo imprisonment for life and to pay a fine of
Rs. 2000/-,
in default further imprisonment
for two months. Learned counsel appearing for the appellant urged that in accordance
with the provisions contained under Section 20(A)(1) of the said Act, no information
about the commission of any offence under the said Act shall be recorded by the
Police without prior approval of the District Superintendent of Police. Learned
Counsel submitted that the said provision under Section 20(A)(1) was incorporated
by way of an amendment vide Section 9 of Act 43 of 1993. The said amendment came
into effect on 23.5.1993 and the FIR was recorded on 6.11.1993. Therefore, at
the time when the FIR was recorded, the provision of Section 20(A)(1) was
clearly attracted.
It will be in the fitness
of things that to appreciate the points urged by the appellant, Section 20(A) is
set out below: 20-A 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, Commissioner of Police. Relying on the said section, the
learned Counsel for the appellant submitted that from the evidence of PW 15
Ajit Kumar Sarma who recorded the FIR, it is clear that he did not take the approval
of the Superintendent of Police before recording the FIR.
In his
cross-examination, PW 15 clearly stated "I did not obtain the approval from
the concerned SP for registering the case." From the evidence of PW 11, who
is one Sanjit Sekhar Roy, learned counsel stated that the said PW 11 was
working on 22.6.2000 as DSP Headquarter at North Lakhimpur. In his cross- examination,
he stated that the occurrence took place on 6.11.1993 and prior to the filing of
the Ejahar which is the FIR, the written approval of the SP concerned was not
obtained and in the Ejahar itself, There is no approval of SP, North Lakhimpur.
We have looked into the original FIR Exhibit P-12. In the original FIR, the
following endorsement which has been made by Ajit Kumar Sarma is quoted below:-
"Received and registered Bihpuria PS Case no. 0497/93 u/s 120(B)/302 I.P.C.
R/W 3/4/5 TADA (P) Act, 1987 with the approval of SP(I) NL."
It is an admitted
position in this case that even though the aforesaid endorsement has been made
in the FIR, the SP(I), North Lakhimpur, whose approval is alleged to have been
taken by PW 15 Ajit Kumar Sarma has not been examined by the prosecution. Apart
from that, in the substantive evidence before the Court, PW 15, Ajit Kumar
Sarma has categorically stated that he has not obtained approval of SP before
registering the case. He rather said that he registered the case and himself took
up the investigation of the case, prepared the seizure list and recorded the
statement of witnesses and at that point of time, the rank of Ajit Kumar Sarma
was that of SI of police.
We have already
referred to the evidence of PW 11 who has also deposed that written approval of
SP was not obtained. In the background of these facts, the question is whether in
this case the mandatory requirement of Section 20(A)(1) was complied with. Attention
of this Court has been drawn to certain decisions of the Court where from it
appears that there was a controversy and divergence of judicial view as to
whether written approval or oral approval is required. The said divergence of
judicial view has been set at rest by the judgment of a three-Judge Bench of this
Court in State of A.P. Vs. A. Satyanarayana and Others 2001(10) SCC 597.
A Three-Judge Bench of
this Court setting out the controversy in this matter ultimately came to hold
as follows in paragraph 8:- "Having applied our mind to the aforesaid two judgments
of this Court, we are in approval of the latter judgment and we hold that it is
not the requirement under Section 20-A(1) to have the prior approval only in writing.
Prior approval is a condition precedent for registering a case, but it may be either
in writing or oral also, as has been observed by this Court in Kalpanath Rai case
1997(8) SCC 732 and, therefore, in the case in hand, the learned Designated Judge
was wholly in error in refusing to register the case under Sections 4 and 5 of
TADA.
We, therefore, set
aside the impugned order of the learned Designated Judge and direct that the matter
should be proceeded with in accordance with law." It is, therefore, clear that
approval has to be taken, even if it is an oral approval. Attention of this Court
has also been drawn to a decision rendered in Hitendra Vishnu Thakur and Others
Vs. State of Maharashtra and Others 1994(4)SCC 602 as to the requirement of the
provision of Section 20(A)(1). The learned Judges of this Court after considering
various provisions of the said Act held that the requirement of Section 20(A)(1)
of TADA was introduced by way of an amendment with a view to prevent abuse of
the provisions of TADA.
We, therefore, reiterate
the principles laid down by this Court in paragraph 12 by Justice Dr. A.S. Anand(as
His Lordship then was), which is set out below:- "Of late, we have come
across some cases where the Designated Courts have charge-sheeted and/or convicted
an accused person under TADA even though there is not even an iota of evidence from
which it could be inferred, even prima facie, let alone conclusively, that the crime
was committed with the intention as contemplated by the provisions of
TADA, merely on the
statement of the investigating agency to the effect that the consequence of the
criminal act resulted in causing panic or terror in the society or in a section
thereof.
Such orders result in
the misuse of TADA Parliament, through Section 20-A of TADA has clearly
manifested its intention to treat the offences under TADA seriously inasmuch as
under Section 20-A(1), notwithstanding anything contained in the Code of Criminal
Procedure, no information about the commission of an offence under TADA shall
even be recorded without the prior approval of the District Superintendent of
Police and under Section 20-A(2), no court shall take congisance of any offence
under TADA without the previous sanction of the authorities prescribed therein.
Section 20-A was thus introduced in the Act with a view to prevent the abuse of
the provisions of TADA."
Learned counsel
appearing on behalf of the State wanted to urge that in the instant case, the requirement
of Section 20(A)(1) has been complied with and in support of her submissions,
the learned counsel has drawn the attention of this Court to the evidence of PW
4 and PW 6. In his evidence, PW 4 Nitul Gogoi has said that on 21.10.94 he was
working as D.S.P. H.Q. at Lakhimpur. On that day, the S.P. Lakhimpur handed
over the CD of this case to him to hold "remaining part of investigation
of the case." PW 6 Nirmal Dr. Das also deposed that on 25.9.99, he was working
as Head Quarter DSP at North Lakhimpur.
On that day, S.P. Lakhimpur
entrusted the investigation of the case in his name and accordingly, he got the
CD from R.S.I. Relying on the aforesaid deposition of PW 4 and PW 6, the learned
counsel urged that in the instant case, the investigation was conducted by the DSP,
therefore, the requirement of section 20(A)(1) has been complied with. We are unable
to appreciate the aforesaid submission. It is obvious that Section 20(A)(1) is a
mandatory requirement of law. First, it starts with an overriding clause and,
thereafter, to emphasise its mandatory nature, it uses the expression "No"
after the overriding clause. Whenever the intent of a statute is mandatory, it
is clothed with a negative command. Reference in this connection can be made to
G.P. Singh's Principles of Statutory Interpretation, 12th Edition. At page 404,
the learned author has stated:
"As stated by CRAWFORD:
"Prohibitive or negative words can rarely, if ever, be directory. And this
is so even though the statute provides no penalty for disobedience. As observed
by SUBBARAO, J.: "Negative words are clearly prohibitory and are ordinarily
used as a legislative device to make a statute imperative". Section 80 and
Section 87-B of the Code of Civil Procedure, 1908, section 77 of the Railways
Act, 1890; section 15 of the Bombay Rent Act, 1947; section 213 of the
Succession Act, 1925; section 5-A of the Prevention of Corruption Act, 1947;
section 7 of the Stamp Act, 1899; section 108 of the Companies Act, 1956; section
20(1) of the Prevention of Food Adulteration Act, 1954; section 55 of the Wild Life
Protection Act, 1972, the proviso to section 33(2)(b) of the Industrial Disputes
Act, 1947 (as amended in 1956); section 10A of Medical Council Act, 1956 (as amended
in 1993), and similar other provisions have therefore, been construed as mandatory.
A provision requiring
'not les than three months' notice is also for the same reason mandatory."
We are in respectful agreement with the aforesaid statement of law by the learned
author. So there can be no doubt about the mandatory nature of the requirement of
this Section. Apart from that, since the said section has been amended in order
to prevent the abuse of the provisions of TADA, this Court while examining the
question of complying with the said provision must examine it strictly. Going
by the aforesaid principles, this Court finds that no information about the
commission of an offence under the said Act can be recorded by the Police
without the prior approval of the District Superintendent of Police. Therefore,
the requirement of prior approval must be satisfied at the time of recording the
information.
If a subsequent investigation
is carried on without a proper recording of the information by the DSP in terms
of Section 20(A)(1), that does not cure the inherent defect of recording the information
without the prior approval of the District Superintendent of Police. Whether
the Deputy Superintendent of Police is a District Superintendent of Police or
not is a different question which we need not decide in this case. But one
thing is clear that the requirement of approval must be made at the initial stage
of recording the information. If there is absence of approval at the stage of recording
the information, the same cannot be cured by subsequent carrying on of the investigation
by the DSP. Reference in this connection is made to the principles laid down by
Lord Denning speaking for the Judicial Committee of Privy Council in Benjamin
Leonard MacFoy Versus United Africa Co. Ltd. [1961(3) Weekly Law Reports 1405].
Lord Denning,
speaking for the unanimous Bench, pointed out the effect of an act which is void
so succintly that I better quote him: "If an act is void, then it is in law
a nullity. It is not only bad, but incurably bad. There is no need for an order
of the court to set it aside. It is automatically null and void without more ado,
though it is sometimes convenient to have the court declare it to be so. And
every proceeding which is founded on it is also bad and incurably bad. You cannot
put something on nothing and expect it to stay there. It will collapse." We
are in respectful agreement with the aforesaid view.
Therefore, the
evidence of PW 4 and PW 6 do not come to any aid of the State Counsel in the
facts of the present case. We are, however, surprised to find that the
Designated Court in the impugned judgment has come to a finding that there has
been verbal approval from the Superintendent of Police even after noting that
the I.O. In this case (PW 15) admitted that he did not obtain approval. It is nobody's
case that PW 15 was confronted with the FIR while he was giving his evidence. Therefore,
the prosecution in this case has failed to bring on record that verbal approval
was obtained. It may be noted that PW 15 has not been declared hostile. Therefore,
having regard to the clear evidence of PW 15, this Court is constrained to hold
that even verbal approval of the concerned authority was not obtained in the case
before recording the information.
Therefore, the entire
proceeding right from the reigstering of the FIR, filing of the charge-sheet and
the subsequent trial is vitiated by a legal infirmity and there is a total miscarriage
of justice in holding the trial, ignoring the vital requirement of law. We
have, therefore, no hesitation in setting aside the impugned judgment of the
Designated Court. The appeal is, therefore, allowed. The appellant who is in jail
must be set at liberty forthwith, if not required in connection with any other
case.
..........................J.
(ASOK KUMAR GANGULY)
.........................J.
(DEEPAK VERMA)
NEW
DELHI
MAY
20, 2011
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