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Report No. 173

Chapter V

Part IV of The Criminal Law Amendment Bill Part IV of The Bill Contains Clauses 18 To 24.

The Official Amendments not only propose to amend several provisions in this part but also propose to add one more clause, namely, clause 25. Clause 18 provides for certain modifications in the Code of Criminal Procedure in its application to the offences under the Act. Sub-clause (1) provides that every offence punishable under this section shall be deemed to be a "cognizable offence" and a "cognizable case". Sub-clause (2) while providing that section 167 of the Code of Criminal Procedure shall apply in relation to a case involving an offence punishable under this Act, provides for extension of several periods mentioned in sub-section (2) of section 167.

A proviso is also sought to be added by which the special court is given the power to extend the period further in case it is not possible to conclude investigation within such extended period. The second proviso sought to be added enables the police officer to ask for police custody of a person who may be in judicial custody if such a course is found necessary. Sub-clause (3) of clause 18 of the Bill provides that while section 268 of the Code shall apply in relation to a case involving an offence punishable under the Act, such application shall be subject to the modifications provided in the said sub-section.

The modifications are more or less formal in nature. Sub-clause (4), as originally drafted, provided that sections 366, 367, 368 and 371 of the Code shall apply to a case involving an offence triable by special court subject to the modification that for the expression "Court of Session", it shall be read as "Special Court". By way of official amendments, sub-clause (4) is sought to be substituted. The said substitution was probably thought of as a consequence of changing the forum of appeal in clause 17. (We have already expressed our opposition to the proposal to change the forum of appeal).

Sub-clauses (5), (6), (6A) (proposed to be inserted by Official Amendments) and sub-clause (7), constitute and represent a single scheme dealing with the grant of bail. Sub-clause (5) says that section 438 of the Code of Criminal Procedure shall not apply to a person accused of having committed an offence punishable under this Act. Sub-clause (6) says that no person accused of an offence under this Act shall be released on bail or on his own bond unless the public prosecutor has been given an opportunity of opposing the application for bail.

Sub-clause (6A) sought to be inserted by Official Amendments provides that "where the public prosecutor opposes the application of the accused for release on bail, no person accused of an offence punishable under this Act or any rule made therein shall be released on bail until the court is satisfied that there are grounds for believing that he is not guilty of committing such offence". Sub-clause (7) provides that the limitations of granting a bail specified in sub-clause (6) and sub-clause (6A) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail.

There was a good amount of debate and discussion on these provisions in both the seminars. In the responses received by the Law Commission also, these provisions have either been defended or opposed. One set of objections was that the provison in sub-clause (6A) to the effect that no bail shall be granted unless the court is satisfied that "there are grounds for believing that he is not guilty of committing such offence" makes it almost impossible for any accused to get bail.

In our opinion, there is no substance in this objection inasmuch as this is the very language which was used in sub-section (8) of section 20 of TADA and which has been the subject-matter of elaborate discussion and decision by the Supreme Court in Kartar Singh's case. The Supreme Court has pointed out that the language of sub-section (8) of section 20 of TADA is in substance no different from the language employed in section 437(1) of the Code, section 35 of the Foreign Exchange Regulation Act, 1976 and section 104 of the Customs Act, 1962.

The Supreme Court accordingly upheld the validity of sub-section (8) of section 20 of TADA holding that the respective provisions contained therein are not violative of Article 21 of the Constitution. Be that as it may, having regard to the purpose and object underlying the Act and the context in which the Act has become necessary, these restrictive provisions may not be likely to be assailed on any reasonable basis. The objection, therefore, is unacceptable.

However, certain other useful suggestions were made to which a reference is necessary. Justice J.S. Verma, Chairperson, National Human Rights Commission suggested that for the purpose of bail, the offences in the Act should be classified on the lines indicated by the Supreme Court in its decision in Shaheen Welfare Society's case 1996 (2) JT 719 (SC). This view was supported by Shri P.P. Rao, Senior Advocate, who emphasised that a routine refusal of bail was unacceptable.

He added that since the normal rule was bail, any restriction placed thereon in an anti-terrorism law should not be disproportionate, making the very provision for bail meaningless. Several other participants also supported this line of reasoning which we find eminently reasonable and acceptable. In Shaheen Welfare Society's case (supra), the Supreme Court has suggested categorisation of offences under TADA into four categories for the purpose of bail. The following observations are relevant:

"For the purpose of grant of bail to TADA detenus, we divide the undertrials into four classes, namely,

(a) hardcore undertrials whose release would prejudice the prosecution case and whose liberty may prove to be a menace to society in general and to the complainant and prosecution witnesses in particular;

(b) other undertrials whose overt acts or involvement directly attract sections 3 and/or 4 of the TADA Act;

(c) undertrials who are roped in, not because of any activity directly attracting sections 3 and 4, but by virtue of sections 120B or 147, IPC and;

(d) those undertrials who were found possessing incriminating articles in notified areas and are booked under section 5 of TADA."

Ordinarily, it is true that the provisions of sections 20(8) and 20(9) of TADA would apply to all the aforesaid classes. But while adopting a pragmatic and just approach, no one can dispute the fact that all of them cannot be dealt with by the same yardstick. Different approaches would be justified on the basis of the gravity of the charges. Adopting this approach we are of the opinion that undertrials falling within group (a) cannot receive liberal treatment.

Cases of undertrials falling in group (b) would have to be differently dealt with, in that, if they have been in prison for five years or more and their trial is not likely to be completed within the next six months, they can be released on bail unless the court comes to the conclusion that their antecedents are such that releasing them may be harmful to the lives of the complaints, the family members of the complainant, or witnesses.

Cases of undertrials falling in groups (c) and (d) can be dealt with leniently and they can be released if they have been in jail for three years and two years respectively. Those falling in group (b), when released on bail, may be released on bail of not less than Rs.50,000/- with one surety for like amount and those falling in groups (c) and (d) may be released on bail on their executing a bond for Rs.30,000/- with one surety for like amount, subject to the following terms:

(1) the accused shall report to the concerned police station once a week;

(2) the accused shall remain within the area of jurisdiction of the Designated Court pending trial and shall not leave the area without the permission of the Designated Court;

(3) the accused shall deposit his passport, if any, with the Designated Court. If he does not hold a passport, he shall file an affidavit to that effect before the Designated Court. The Designated Court may ascertain the correct position from the passport authorities, if it deems it necessary;

(4) The Designated Court will be at liberty to cancel the bail if any of those conditions is violated or a case for cancellation of bail is otherwise made out.

(5) Before granting bail, a notice shall be given to the public prosecutor and an opportunity shall be given to him to oppose the application for such release. The Designated Court may refuse bail in very special circumstances for reasons to be recorded in writing.

These conditions may be relaxed in cases of those under groups (c) and (d) and, for special reasons to be recorded in the case of group (b) prisoners. Also these directions may not be applied by the Designated Court in exceptionally grave cases such as the Bombay Bomb Blast Case where a lengthy trial is inevitable looking to the number of accused, the number of witnesses and the nature of charges unless the court feels that the trial is being unduly delayed. However, even in such cases it is essential that the Review Committee examines the case against each accused bearing the above directions in mind, to ensure that TADA provisions are not unnecessarily invoked."

Although the Court observed in the said judgment that the aforesaid directions were "a one-time measure meant only to alleviate the current situation", the spirit and principle behind the said observations should serve as guidelines to the Special Courts while dealing applications of bail of persons accused of offences under the Act, for the purposes of bail.

Though we would like very much to incorporate the said classification in sub-clauses (5) to (7) of clause 18, we find it difficult to do so in view of the difficulty in incorporating the various ideas contained in the above judgment. For example, the Court has said that their classification is not applicable to "exceptionally grave cases such as Bombay Bomb Blast Case. " What is an exceptionally grave case has to be left to be determined by the special court in a given case. In view of this drafting difficulty, we have not chosen to suggest an amendment to the said provisions.

It may be noted that the decision of the Supreme Court is binding on all courts by virtue of Article 141 of the Constitution and hence it can be presumed that even in the absence of specific provisions in the Act on the lines indicated in the judgment, the ratio and the spirit of the said judgment shall be followed by the special courts. However, a new sub-clause may be added in clause 18 providing that in case of foreign terrorists, bail should not be granted except in exceptional circumstances. The sub-clause may read as follows :

"(8) Notwithstanding anything in sub-section (7), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen, except in very exceptional circumstances and for reasons recorded therefor."

Clause 19 deals with cognizance of offences under the Act. As originally drafted, the Bill provided that notwithstanding anything contained in the Code of Criminal Procedure, 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. By way of Official Amendments, for the expression "District Superintendent of Police", the words "Inspector General of Police or, as the case may be, the Commissioner of Police" are sought to be substituted. Sub-clause (2) of section 19 as originally drafted in the Bill provided that "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".

By way of Official Amendments, the words "Inspector General of Police or as the case may be the Commissioner of Police" are sought to be substituted by the words "State Government or as the case may be the Central Government". It was pointed out by several participants at the seminars that the requirement of "prior aproval" for recording an information about the commission of an offence under the Act was an impractical provision and that therefore the requirement of prior approval may be removed and in its place a subsequent approval or ratification may be provided for.

Indeed, the Law Commission has recommended in its Working Paper the insertion of clause 7A in Part II of the Bill providing that the police officer recording information in respect of an offence under this Act shall promptly forward copies of all the material including the FIR and its accompaniments to the DGP and the Review Committee. It was further provided that it shall be open to the DGP or the Review Committee to call for such further information as they may deem necessary from the Police or any other person before approving or disapproving the action taken by the subordinate authority.

It was further recommended to be provided that if the DGP did not approve the recording of aforesaid information within ten days or if the Review Committee did not approve of the same within 30 days, the recording of information shall become null and void and no further action shall be taken on that behalf and the accused, if in custody, shall be released forthwith.

Certain participants in the Seminar submitted that the requirement of the approval of the DGP and the Review Committee is not an effective one. So far as taking of approval of court is concerned, the suggestion is misconceived and unacceptable. It is not part of the functions of the court to approve FIRs, either before or after they are registered. So far as approval of any other independent authority is concerned, we have not been able to find any such authority, now in existence, whose approval can be provided for at this stage.



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