http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: BALBIR SINGH

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT20/01/1987

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) SEN, A.P. (J)

CITATION:  1987 AIR 1053            1987 SCR  (1)1095  1987 SCC  (1) 533        JT 1987 (1)   210  1987 SCALE  (1)127  CITATOR INFO :  F          1991 SC  45  (10)

ACT:     Terrorist  and Disruptive Activities  (Prevention)  Act, 1985,  ss.3  and 4--Conviction  under--Prosecution  evidence lacking  in credibility-Conviction set  aside--Investigation of cases under the Act to be not only thorough but also of a high Order.

HEADNOTE:     A  crowd  of about 1500 persons had  gathered  near  the railway  line in the village Siwah, District Karnal  on  the morning  of 2.9.85 in response to a call given by the  Bhar- tiya  Kisan Union for a Rail Roko Abhiyan. To safeguard  the railway  line and to maintain law and order the  authorities posted a large contingent of police. Since the demonstrators became violent and attempted to cause damage to the  railway line, the police force resorted to lathi charge four or five times during the day and in addition fired tear-gas and even resorted to shooting. The  appellant, it is alleged, came at about 8 or 8.30  p.m. to  the   place where lathi charge and  shooting  had  taken place,  addressed  the  demonstrators and  incited  them  to violence.  According to the prosecution, P.Ws. I and 2,  who were on intelligence duty, carefully listened to the  speech and  on  the  next morning P.W.I presented a  report  at  he Police Station. Thereupon a case was registered against  the appellant under s.4 of the Terrorists and Disruptive Activi- ties  (Prevention) Act, 1985 and after investigation he  was charge-sheeted. The Designated Court under the Act  accepted the prosecution evidence and found the appellant guilty  and convicted him under s.4 of the Act. Allowing the appeal by the appellant, this Court,     HELD:  1.  The  Judge of the designated  court  was  not justified  in  holding the prosecution  case  proved  beyond reasonable doubt and finding the appellant guilty under  s.4 of  the Act and convicting him accordingly. The  prosecution evidence is not only lacking in credibility but also suffers from  numerous infirmities. It is far from  satisfactory  to justify  the  conviction  of the appellant  under  s.4.  The conviction and sentence awarded to the appellant are  there-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

fore set aside. 1096     2. Section 16 of the Act provides for an appeal  against a  judgment  rendered by a designated court to  the  Supreme Court alone and to no other court. Consequently, this appeal constitutes  the first appeal as well as the  final  appeal. Such  being the case, the Supreme Court has  to  necessarily scrutinise the evidence in its entirety and re-appraise  the testimony  of witnesses to determine its evidentiary  value. [1099G-H]     3.1.  P.Ws.I  and 2 were not on security  duty  at  that place  but were only there to submit  intelligence  reports. When  a lathi charge had been made even at 4.30 p.m.  it  is inconceivable  that the entire police force would have  left the place in the evening and gone away elsewhere. Therefore, this unnatural version is put forward to cover up the lacuna for  not examining any police officer of a higher  rank  re- garding the inflammatory speech alleged to have been made by the appellant at about 8.30 p.m. on that day. [1100E-F]     3.2  The prosecution could have certainly examined  some independent witnesses to prove what the appellant had spoken on that night. Surely, it cannot be said that among the 1500 or  2000 persons present there, no one would have come  for- ward to give evidence about what the appellant spoke on that night.  No explanation has been offered as to why  no  inde- pendent witness has been examined. In fact P.Ws.I and 2 have not even stated that they tried to find out the names of any of  the  people assembled there or made any effort  to  note down  their  names  so that they can later  be  summoned  to appear  as witnesses if a case was to be filed  against  the appellant. [1100G-H; 1101A]     3.3  The  appellant was a stranger to P.Ws.1 and  2  and hence they could not have known who he was and what was  his occupation. P.Ws. I and 2 had not made any enquiries to find out  who  the appellant was and where he was  residing.  The strange version given by P.W.I is that before the  appellant began his speech he introduced himself to the  demonstrators by  giving out his name, address and occupation. The  state- ment, apart from its artificiality is not corroborated  even by P.W .2. Another discrepancy noticed is that while P.W.  I has  stated that the appellant addressed the gathering  from the Chaubra with a microphone in his hand, P.W.2 has  stated that  the appellant stood in the midst of the  demonstrators and addressed them. Moreover P.W.2 makes no reference to the appellant having any microphone. [1101A-C]     3.4  The report Exhibit P.A. is said to have  been  pre- pared on the basis of rough notes prepared by P.W.I, but the ’rough notes’ is not forthcoming and has not been marked  in evidence and is said to have 1097 been  destroyed. Since the rough notes constitute the  first recorded entry of the speech it is an important document and in  its absence the fair report cannot be  given  unreserved acceptance.  Even  in the matter of the preparation  of  the report,  one would except P.W.2 holding a higher  rank  than P.W.I  to have prepared it. Not only has P.W.2 not  prepared any report but his own admission is that he did not sign  or even initial the rough notes or the fair report Exhibit P.A. [1101D-F]     [The  Court observed that it is highly regrettable  that the authorities concerned should have launched a prosecution under  the  Act in a manner which can be  easily  termed  as cavalier.  The Act though intended to effectively deal  with the  terrorists and disruptionists contains  drastic  provi- sions for punishing them. Furthermore, against any judgment,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

sentence  or order rendered under the Act, an  appeal  would lie,  directly  to  the Supreme Court and not  to  the  High Court.  Therefore, the investigation of the case  under  the Act has not only to be thorough but also of a high order.]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 222 Of 1986     From  the  Judgment and Order dated 11.3.  1986  of  the Sessions  Judge, Karnal in Misc. Sessions Case (D) No.  1072 of 1985        Harbans Lal and G.K. Bansal for the Appellant.        V.C. Mahajan and C.V. Subba Rao for the Respondent.        The Judgment of the Court was delivered by     NATARAJAN,  J.  While allowing this appeal  and  setting aside  the  conviction of the appellant Balbir  Singh  under Section  4 of the Terrorist and Disruptive Activities  (Pre- vention)  Act, 1985 (in short the ’Act’) by our order  dated 30.10.86  we  had stated that the reasons for  our  judgment will  follow.  We now proceed to give the  reasons  for  our judgment.     The appellant who holds the degrees of M.A. and B.T. was originally  a Lieutenant in the Armed Forces. On account  of some mental ailment he was discharged from the Army.  There- after  he  joined the Haryana Education Department  and  was appointed  as a Lecturer in the Government Higher  Secondary School  at  Siwah. After about 7 years of  service  in  that School he was transferred to the Government 1098 Senior  Secondary  School  at Sanauli  Khurd.  He,  however, continued to reside at Siwah since he could not get accommo- dation at Sanauli Khurd.     The circumstances under which the appellant has come  to be  convicted under Section 4 of the Act are to be found  in the evidence of two prosecution witnesses viz. P.W.I Jagdish Chander,  a Police Constable and P.W.2, Gian Chand,  a  Head Constable. One other witness Ramji Lal (P.W.3), an Assistant Sub-Inspector  of Police is also a prosecution  witness  but since  he speaks only about the filing of  the  charge-sheet his evidence is not very material.     The  evidence of P.Ws. 1 and 2 is to the  following  ef- fect.  Pursuant to a call given by the Bhartiya Kisan  Union for  a  Rail Roko Abhiyan on 2.9.85 a crowd  of  about  1500 persons had gathered on the forenoon of that day at a  place near the railway line in the village Siwah, Tehsil  Panipat, district Karnal. To safeguard the railway line and to  main- tain  the law and order, the authorities had posted a  large contingent of police at the place of gathering of the demon- strators.  In spite of the presence of the police force  the demonstrators  became violent and attempted to cause  damage to the railway line and also indulged in throwing  brickbats at  the  police force. To control the situation  the  police party  had to resort to lathi charge on four or  five  occa- sions  and also to firing tear-gas shells. At one  point  of time, as the violence did not abate the police had to resort to  shooting also. One of the demonstrators died on  account of gun shot injuries and some others sustained injuries  due to the lathi charge.     The  appellant,  it is stated, came at about 8  or  8.30 P.M.  to the place where the lathi charge and  shooting  had taken place and addressed the demonstrators and incited them to  violence.  In his inflammatory speech the  appellant  is said to have condemned the actions of the Central Government

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

and  the  State Government in trying to  appease  the  rebel elements and extremists of Punjab by sacrificing the  inter- ests and welfare of the people of Haryana and further stated that  if the people of Haryana want to protect their  rights they  should also resort to the ways and methods adopted  by the Punjab extremists and that for his part he was  prepared to lead their struggle since he had an eight-chamber revolv- er and that he had on earlier occasion attempted to kill Ch. Bhajan  Lal, Chief Minister of Haryana and hence the  demon- strators may lend him their cooperation so that the  Govern- ment can be forced to safeguard the interests of the  people of Haryana. 1099     P.Ws. 1 and 2, who were on intelligence duty,  carefully listened  to the speech and on the next morning P.W. 1  pre- sented  a  report (Exhibit P.A.) at the  Police  Station  at Nissing. Thereupon a case was registered against the  appel- lant  under  Section 4 of the Act and  after  completion  of investigation  he  was charge-sheeted in the Court  of  Shri S.K.  Jain,  Judge, Karnal, the Designated Court  under  the Act.     As already stated the prosecution rested its case on the testimony of P.Ws. 1 and 2, they being the material witness- es. The appellant denied the prosecution case and stated  in defence  that on compassionate grounds he went to the  place of congregation of the demonstrators to make enquiries  when he  came to know in the evening, on his return from  School, that  the police had resorted to lathi charge and firing  to disperse  the demonstrators and that one person had died  on account of the firing. In support of his defence the  appel- lant  examined  two witnesses besides  himself  and  further sought to contend that about 60 persons who had been arrest- ed were let off without being prosecuted while he alone  has been unjustly charge-sheeted on false avernments.     The  learned Judge of the Designated Court has  accepted the prosecution evidence and found the appellant guilty  and convicted him under Section 4 of the Act. After hearing  the appellant on the question of sentence the Court has  awarded him the minimum sentence of three years’ R.I.     Arguing  the case of the appellant before us  Mr.  Gopal Kishan  Bansal,  learned counsel  levelled  many  criticisms against the prosecution case and submitted that the  learned Judge of the Designated Court ought not to have acted on the testimony of P.Ws. 1 and 2 and convicted the appellant.  The learned counsel took us through the evidence of P.Ws. 1  and 2  and  also  the relevant portions of  the  judgment  under appeal  and adverted to several infirmities in the  evidence of the witnesses and also drew our attention to the lack  of credible evidence in the case.     Section  16 of the Act provides for an appeal against  a judgment rendered by a Designated Court to the Supreme Court alone  and  to  no other court.  Consequently,  this  appeal constitutes  the  first appeal as well as the  final  appeal against the judgment of the Designated Court. Such being the case, we have to necessarily scrutinise the evidence in  its entirety  and  re-appraise  the testimony  of  witnesses  to determine its evidentiary value. On making such scrutiny and re-appraisal of the evidence we find the contentions of  the appellant’s counsel to have 1100 merit  and substance in them. We find the  prosecution  evi- dence  to  be not only lacking in credibility  but  also  to suffer from numerous infirmities.     At  the  outset  we would like to point  out  that  even according  to the prosecution a crowd of about 1000 to  1500

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

persons had gathered near the railway line in the village of Siwah on the morning of 2.9.85 in response to the call given by  the Bhartiya Kisan Union for a Rail Roko Abhiyan. It  is the  further case of the prosecution that the  demonstrators became  violent and attempted to cause damage to the  raiway line  and  in order to safeguard the  railway  property  and maintain  law and order the police force, assembled in  ade- quate  numbers,  had resorted to lathi charge four  or  five times during the day and in addition the police had also  to fire tear-gas shells and even to resort to shooting. One man had died on account of the shooting and several persons  had sustained injuries on account of the lathi charge.  Neverth- less the crowd had not dispersed but continued to remain  at the scene to carry on their agitation. In such circumstances it  is natural to expect the police force to have  remained, in strength at the scene to maintain effective control  over the  demonstrators and to safeguard the railway line.  Curi- ously enough, the entire force comprised of a Deputy  Super- intendent  of Police, Inspectors, Sub-Inspectors,  Assistant Sub-Inspectors,  Head Constables and Constables is  said  to have  left  the place en-masse except P.Ws. 1 and 2.  It  is significant to note P.Ws. 1 and 2 were not on security  duty at  that  place but were only there to  submit  intelligence reports. When a lathi charge had been made even at 4.30 P.M. it is inconceivable that the entire police force would  have left  the place in the evening and gone away  elsewhere.  We are, therefore, led to think that this unnatural version  is put  forward  to cover up the lacuna for not  examining  any police officer of a higher rank than P.Ws. 1 and 2 regarding the  inflammatory  speech alleged to have been made  by  the appellant at about 8.30 P.M. on that day.     Even assuming for argument’s sake that the entire police force had left the scene and only P.Ws. 1 and 2 were left at the  place,  the prosecution could have  certainly  examined some  independent witnesses to prove what the appellant  had spoken  on that night. Surely, it cannot be said that  among the  1500 or 2000 persons present there, no one  would  have come forward to give evidence about what the appellant spoke on that night. No explanation has been offered as to why  no independent witness has been examined. In fact P.Ws 1 and  2 have  not even stated that they tried to find out the  names of  any of the people assembled there or made any effort  to note-down their names 1101 so that they can later be summoned to appear as witnesses if a case was to be filed against the appellant.     Admittedly, the appellant was a stranger to P.Ws. 1  and 2  and hence they could not have known who he was  and  what was his occupation. P.Ws. 1 and 2 had not made any enquiries to find out who the appellant was and where he was residing. The  strange  version  given by P.W. 1 is  that  before  the appellant  began  his speech he introduced  himself  to  the demonstrators  by giving out his name, address  and  occupa- tion.  The  statement, apart from its artificiality  is  not corroborated even by P.W. 2. Another discrepancy noticed  is that  while P.W. 1 has stated that the  appellant  addressed the  gathering  from the Chaubara with a microphone  in  his hand,  P.W.  2 has stated that the appellant  stood  in  the midst  of the demonstrators and addressed them and  moreover P.W.2 makes no reference to the appellant having any  micro- phone. While P.W. 2 has stated that he did not apprehend any violent  reaction from the public on account of  the  speech made by the appellant, P.W.i would say that from the  moment the appellant started introducing himself to the  demonstra- tors  he anticipated things and began to take notes  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

appellant’s speech.     A  noticeable  feature in the case ifs that  the  report Exhibit  P.A. is said to have been prepared on the basis  of the  "rough notes" prepared by P.W. 1 but the "rough  notes" is  not forthcoming and has not been marked in evidence  and it  is said to have been destroyed. Since the "rough  notes" constitute  the first recorded entry of the speech it is  an important document and in the absence of it the fair  report cannot be given unreserved acceptance. Even in the matter of the  preparation  of  the report, one would  expect  P.W.  2 holding  a higher rank than P.W. 1 to have prepared it.  Not only  has P.W. 2 not prepared any report but his own  admis- sion  is  that he did not sign or even  initial  the  "rough notes" or the fair report Exhibit P.A.     Apart from the failings in the evidence of P.Ws. 1 and 2 we  also find that virtually no investigation has been  done before  the appellant was charge-sheeted. The  Investigating Officer has not taken any steps to find out the  antecedants of the appellant and whether he was a member of any  politi- cal party. No investigation has been made to find out wheth- er  the  appellant had an eight-chamber revolver  as  he  is alleged to have claimed and whether he had made any  attempt on the life of Ch. Bhajan Lal on an earlier occasion.  With- out  making any effective investigation the police  authori- ties have lightly launched a prosecution against the  appel- lant solely on the basis of the report given by P.W.I. 1102     Having  regard  to the numerous  infirmities  which  are apparent  in  the prosecution case, we are  clearly  of  the opinion  that the learned Judge of the designated court  was not justified in holding the prosecution case proved  beyond reasonable  doubt  and finding the  appellant  guilty  under Section 4 of the Act and convicting him accordingly.     We are constrained to observe that it is highly  regret- table that the authorities concerned should have launched  a prosecution  under the Act in a manner which can  be  easily termed  as cavalier. The Act though intended to  effectively deal  with  terrorists and disruptionists  contains  drastic provisions for punishing terrorists and disruptionists under Sections 3 and 4 of the Act. Anyone convicted under  Section 3(2)(i)  of the Act is liable to be punished with death  and whoever  is convicted under Section 3(2)(ii) of the  Act  is liable  to  be punished with imprisonment for a  term  which shall not be less than 5 years but which may extend to  term of  life and shall also be liable to fine. Whoever  is  con- victed  under Section 4 of the Act is liable to be  punished with imprisonment for a term which shall not be less than  3 years but which may extend to term of life and shall also be liable to fine. Furthermore, against any judgment,  sentence or order rendered under the Act, an appeal would lie direct- ly  to the Supreme Court and not to the High  Court.  Having regard  to  all these features the  investigation  of  cases under the Act has not only to be thorough but also of a high order. In this case we find the investigation to be  nowhere near  the required standards and likewise the  evidence  ad- duced in the case to be far from satisfactory to justify the conviction of the appellant under Section 4 of the Act.  The appeal  has,  therefore, to be necessarily allowed  and  the conviction and sentence awarded to the appellant set aside. M.L.A.                                          Appeal   al- lowed. 1103