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CASE NO.: Appeal (crl.)  844 of 2002

PETITIONER: Balbir Singh

RESPONDENT: State of Delhi

DATE OF JUDGMENT: 21/06/2007

BENCH: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T

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 law.  

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

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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 Court.  

6.      Learned counsel for the respondent-State supported the  order of the lower court.  

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

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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 him.  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 offence."               

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 only illustrative.  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

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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 \026 quantitatively and qualitatively  \026 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.