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PETITIONER: NIRANJAN SINGH KARAM SINGH PUNJABI ANDORS ETC. ETC.

       Vs.

RESPONDENT: JITENDRA BHIMARAJ BIJJE AND ORS. ETC. ETC.

DATE OF JUDGMENT07/08/1990

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) KASLIWAL, N.M. (J)

CITATION:  1990 AIR 1962            1990 SCR  (3) 633  1990 SCC  (4)  76        JT 1990 (3)   408  1990 SCALE  (2)193

ACT:     The  Terrorist  and Disruptive  Activities  (Prevention) Act, 1987: Section 3(1)--Scope of-Inter-gang rivalry--Unlaw- ful  assembly-Statement  showing  intention  of  accused  to eliminate  rivals--Murder  of  rivals with  object  to  gain supremacy  in  the  underworld--Held did  not  disclose  the commission of an offence under Section 3(1).     Section  12(1)  and 18--Designated Court--Power  to  try connected  offences under other statutes and transfer  cases to  regular  courts--Non-existence of  prima-facie  evidence before  Designated  Court to frame charge under  Section  3( 1)--Consequent  transfer  of  connected  cases  under  other statutes  to regular courts--Held justified and  in  keeping with section 18.     The  Code of Criminal Procedure,  973: Sections 227-228, Accused--Discharge--Determination of sufficient grounds  for framing  charge against the accused--Consideration of  docu- ments and records--Scope and ambit of consideration by Trial Court.

HEADNOTE:     The  accused-petitioners were charged under section  302 and  307 read with Sections 147, 148 and 149 of  the  Indian Penal  Code and Section 37 of the Bombay Police  Act,  1951. Subsequently  they were also charged under section 3 of  the Terrorist and Disruptive Activities (Prevention) Act.  1987. They moved the Designated Court for grant of bail contending that  the provisions of the 1987 Act were wrongly and  mali- ciously invoked and the Designated Court held that section 3 of  the Act was inapplicable. The State of  Maharashtra  has preferred an appeal to this Court against the said order  of the  Designated  Court. Since the accused were  directed  to approach  the  regular court, they moved  bail  applications before  the Sessions Judge, Ahmadnagar which were  rejected. Thereafter,  they approached the High Court and  during  the pendency  of their bail applications before the High  Court, the prosecution submitted a charge-sheet against them in the Designated  Court  under section 3 of the 1987  Act.  Conse- quently the High Court rejected their bail applications  and the accused again approached the Designated Court for  bail. The Designated Court again held that the material

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634 placed before it and the statement recorded by the  Investi- gating Officer did not disclose the commission of an offence under  section 3 of the Act. Accordingly, it discharged  the accused under section 227 of the Code of Criminal Procedure, 1973 and transferred the case to court of Sessions for trial of other offences under the Penal Code and the Bombay Police Act. Against this order of the Designated Court, two appeals have been filed in this Court; one by the deceased’s  father and the other by the State. After transfer of their case  to the  regular court. the accused persons approached the  High Court for bail which was rejected. The accused persons  have filed  a  Special Leave Petition in this Court  against  the High Court’s order refusing the bail. Dismissing  the appeals and disposing of the petition,  this Court.     HELD: 1. A mere statement by the accused persons to  the effect that the show of violence would create terror or fear in  the  minds of the people and none would dare  to  oppose them cannot constitute an offence under section 3(1) of  the Act. That may indeed be the fail out of the violent act  but that cannot be said to be the intention of the  perpetrators of the crime. [646H; 647A]     1.1  While  invoking  a criminal statute,  such  as  the Terrorist  and Disruptive Activities (Prevention)  Act,1987, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investiga- tion that facts emerging therefrom prima facie constitute an offence within the letter of the law. [644F]     1.2  In the instant case it is clear from the  statement of the accused persons that their intention was to liquidate rivals and thereby achieve the objective of gaining suprema- cy  in the underworld. The consequence of such  violence  is bound  to cause panic and fear but the intention of  commit- ting the crime cannot be said to be to strike terror in  the people  or any section of the people. Therefore, the  Desig- nated Court was fully justified in taking the view that this was a case of inter-gang rivalry only and that the  material placed  on record and the documents relied on did not  prima facie  disclose  the commission of  the  offence  punishable under section 3(1) of the Act. [647D-E]     2. Section 12(1) of the Terrorist and Disruptive Activi- ties (Prevention) Act, 1987 empowers the Designated Court to try  any  offence punishable under any other  statute  along with  the offence punishable under the Act if the former  is connected with the latter. That, however, does not mean that even when the Designated Court comes to the con- 635 clusion that there exists no sufficient ground for framing a charge against the accused under Section 3(1) of the Act  it must  proceed to try the accused for the commission  of  of- fences under other statutes. Thai would tantamount to usurp- ing  jurisdiction. Section 18, therefore, in terms  provides that where after taking cognizance of any offence the Desig- nated  Court is of the opinion that the offence is not  tri- able by it, it shall, notwithstanding that it has no  juris- diction to try such offence, transfer the case for the trial of  such offence to any Court having jurisdiction under  the Code,  Therefore,  when  the Designated Court  came  to  the conclusion that there was no prima facie evidence to frame a charge  under section 3(1) of the Act, it was  justified  in transferring the case to the Court of Sessions, which  alone had  jurisdiction under the Code. The course adopted by  the Designated  Court in transferring the case to  the  Sessions Court for trial of offences under other statutes is  clearly

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in keeping with section 18 of the Act. [647F-H; 648A-C]     3. Statutes which impose a term of imprisonment for what is  a criminal offence under the law must be  strictly  con- strued. [644C]     Usmanbhai  Dawoodbhai Memon & Ors., v. State of  Gujrat, [1988] 2 SCC 271. referred to.     3.1 When a statute provides special or enhanced  punish- ments as compared to the punishments prescribed for  similar offences  under  the ordinary penal laws of the  country,  a higher responsibility and duty is cast on the Judge to  make sure  there exists prima facie evidence for  supporting  the charge  levelled by the prosecution. Therefore. when  a  law visits  a person with serious penal consequences extra  care must be taken to ensure that those whom the legislature  did not intend cover by the express language of the statute  are not roped in by stretching the language of the law. But that does  not  mean  that the judicial officer  called  upon  to decide whether or not a case for flaming a charge under  the Act is made out should adopt a negative attitude. He  should frame  a charge if the prosecution shows that  the  material placed on record and the documents relied on give rise to  a strong  suspicion of the accused having committed the  crime alleged against him. [644G-H; 645A]     4. The Court while considering whether to discharge  the accused  or to frame a charge against him i.e. at the  stage of sections 227-228 of the Code of Criminal Procedure,  1973 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.  Since  the Trial Court is 636 at the stage of deciding whether or not there exists  suffi- cient  grounds  for  framing the charge,  its  enquiry  must necessarily  be  limited to deciding if the  facts  emerging from  the record and documents constitute the  offence  with which the accused is charged. At that stage it may sift  the evidence for that limited purpose but it is not required  to marshal  the  evidence with a view to separating  the  grain from  the chaff. All that it is called upon to  consider  is whether  there is sufficient ground to frame the charge  and for  this  limited  purpose it must weigh  the  material  on record  as well as the documents relied on by tile  prosecu- tion. [643E; 641F-G]     State of Bihar v. Ramesh Singh, [1978] 1 SCR 257;  Union of  India v. Prafulla Kumar Samal & Anr., [1979] 2  SCR  229 and  Supdt. & Remembrancer of Legal Affairs, West Bengal  v. Anil Kumar Bhunja & Ors., [1979] 4 SCC 274, referred to.

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Criminal  Appeal  Nos. 703, 7 12 of 1989 and 13 of 1990.     From  the  Judgment and Order dated  27.10.1989  of  the Designated  Court/Judge at Jalgaon in Crl. Misc. Appln.  No. 524 of 1989 in T.A.D.A. Case No. 9 of 1989 dated 2.9.1989 in Crl. Misc. Appln. No. 357 of 1989. WITH Special Leave Petition (Crl.) No. 2459 of 1989.     From  the  Judgment and Order dated  15.11.1989  of  the Bombay High Court in Crl. Appln. No. 687 of 1989. Appellant-in person in Crl. A. No. 703 of 1990.     B.A. Masodkar, U.R. Lalit and G.B. Sathe for the  Appel- lant Petitioners.

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V.N. Patii and A.S. Bhasme for the Respondents. S.K. Pasi for the Intervenor. The Judgment of the Court was delivered by     AHMADI,  J. These three appeals arise out of the  charge levelled  by the police against the five petitioners of  the above special leave 637 petition  under Section 3 of the Terrorists  and  Disruptive Activities (Prevention) Act, 1987, (hereinafter called  ’the Act’), Sections 302, 307 read with Sections 147, 148 and 149 IPC  and Section 37 of the Bombay Police Act, 1951, for  the murder  of one Raju alias Avtar Singh, son of the  appellant of  Criminal Appeal No. 703/89, and for injuries  caused  to his companion Keshav Vitthal, the first informant. The facts giving rise to these proceedings are as under:     On  the afternoon of the 12th July, 1989 when  Raju  and his  companion  Keshav were proceeding on a  motor-cycle  at about 3.00 p.m. they were intercepted by the accused  Jiten- dra  and  one another known as a  wrestler.  Following  some altercation  and heated exchange of words between them,  the other three accused persons arrived at the spot. Two of them were armed with knives and the third possessed an  iron-rod. On  seeing them Keshav who was on the pillion seat  took  to his heels whereupon Raju who was in the driver’s seat  aban- doned  the motor-cycle and ran in another direction. Two  of the accused persons ran after Raju while the others  includ- ing the wrestler chased Keshav. On being over-taken  accused Vijay  gave  a  knife blow on the chest of  Keshav  and  his companion Santosh dealt blows with the iron-rod.  Thereafter all  the three fled from the scene of occurrence. The  Other two who had chased Raju are alleged to have killed him as he was  found  lying in an unconscious condition on  the  road. Both  the  injured were removed to the hospital.  Raju  suc- cumbed  to  the injuries soon after reaching  the  hospital. Keshav,  however,  responded to medical  treatment  and  has survived to give evidence.     On the same day at about 5.30 p.m. the first information report was lodged by the injured Keshav. On the basis there- of an entry was made in CR No. 138 of 1989 and a case  under Section 302 and 307 read with Sections 147, 148 and 149  IPC and Section 37 of the Bombay Police Act was registered.  The accused  were arrested on 15th July, 1989 and were taken  on remand for 9 days which period was extended upto 29th  July, 1989 on which data the Investigating Officer invoked Section 3  of  the  Act. On 3rd August, 1989 the  accused  moved  an application  in  the Designated Court,  Jalgaon,  for  bail, inter  alia, contending that the provisions of the  Act  had been  wrongly and maliciously invoked. The said  application was heard and decided by the Designated Court on 2nd Septem- ber, 1989 which took the view that Section 3 of the Act  was wrongly applied. Against that order the State of Maharashtra has  preferred  Criminal Appeal No. 712/89. As  the  accused were directed to approach the regular court, they moved  two bail  applications  before the  Fourth  Additional  Sessions Judge, Ahmad- 638 nagar. The said bail applications were, however, rejected on 25th September, 1989. Against the said rejection the accused approached the High Court. While those matters were  pending in the High Court, the prosecution submitted a  charge-sheet against  the  accused in the Designated  Court  at  Jalgaon. Thereupon  the  High Court rejected  the  applications.  The accused again approached the Designated Court for bail.  The Designated Court once again came to the conclusion that,  in the  facts and circumstances of the case, Section 3  of  the

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Act  had no application and discharged the accused  on  that count  under Section 227 of the Code of Criminal  Procedure, 1973  (hereinafter called ’the Code’). By the said  impugned order  of  27th  October, 1989 the case was  ordered  to  be transferred  to  the Court of Sessions, Ahmadnagar,  on  the other  charges and the accused were granted liberty to  move that court for bail. Against the said order Criminal  Appeal No.  703/89  has been preferred by Raju’s father  while  the State  of Maharashtra has filed Criminal Appeal  No.  13/90. Thereupon,  the accused approached the High Court  for  bail but  the High Court rejected their application and  directed early hearing of the case. Special leave petition No.  2459/ 89  is  preferred by the original accused against  the  said order.     The  Act was enacted to make special provisions for  the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto.  Section  2(d) defines the  expression  ’disruptive activity’  to have the meaning assigned to it in section  4. Section 2(h) defines the expression ’terrorist act’ to  have the  meaning assigned to it under section 3(1) of  the  Act. The  relevant  part of Section 3(1) provides  that  whoever, with  intent (i) to overawe the Government as by law  estab- lished or (ii) to strike terror in the people or any section of the people or (iii) to alienate any section of the people or  (iv) to adversely affect the harmony  amongst  different sections  of the people, does any act or thing by using  any of the lethal weapons mentioned therein in such a manner  as to  cause  death of/or injuries to any  person  or  persons, commits a terrorist act. Section 3(2) lays down the  penalty for  the commission of such an act. Section 4(1)  prescribes the  penalty for indulging in any disruptive activity.  Sec- tion  4(2) defines a disruptive activity to mean any  action taken in whatever manner (i) which questions, disrupts or is intended  to  disrupt, whether directly or  indirectly,  the sovereignty  and  territorial integrity of  India,  or  (ii) which  is  intended to bring about or  supports  any  claim, whether directly or indirectly, for the cession of any  part of  India  or the secession of any part of  India  from  the Union.  Section 6 provides enhanced penalty for  aiding  any terrorist or disruptionist. Part III of the Act creates  the machinery for trying 639 terrorists and disruptionists charged with the commission of any  offence under the Act. Section 9 empowers  the  Central Government as well as the State Governments to constitute by notification one or more Designated Courts for such area  or areas, or for such case or class or group of cases as may be specified in the notification. Section 9(6) provides that  a person shall not be qualified for appointment as a Judge  or an  Additional  Judge  of a Designated Court  unless  he  is immediately  before such appointment a Sessions Judge or  an Additional Sessions Judge in any State. Section 11 says that every offence punishable under the provisions of the Act  or the  rules  made thereunder shall be tried by  a  Designated Court  constituted  under Section 9(1) of the  Act.  Section 12(1) is relevant for our purpose and reads as under: "When  trying any offence, a Designated Court may  also  try any  other  offence with which the accused  may,  under  the Code,  be charged at the same trial if the offence  is  con- nected with such other offence." Section  14 sets out the procedure and powers of  Designated Courts. Sub-section 3 of the Section 14 is relevant for  our purpose. It reads as under: "Subject  to other provisions of this Act. Designated  Court

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shall for the purpose of any offence have all the powers  of a  Court  of Sessions and shall try such offences as  if  it were a Court of Sessions so far as may be in accordance with the procedure prescribed in the Code for the trial before  a Court of Sessions." Section 16 offers protection to witnesses. Section 17  gives procedence to trials by Designated Courts. Section 18 empow- ers  the  Designated  Courts to transfer  cases  to  regular Courts. This Section reads as under: "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  of- fence  to any court having jurisdiction under the  Code  and the court to which the case is transferred may proceed  with the  trial of the offence as if it had taken  cognizance  of the offence." Section 19 provides for an appeal to the Supreme Court  both on facts 640 and on law from any judgment, sentence or order, other  than an interlocutory order, of a Designated Court. Section 20(1) makes  an offence under the Act or the rules,  a  cognizable one.  Sub-section (8) of section 20 lays down that  notwith- standing  anything contained in the Code, no person  accused of  an  offence punishable under the Act or  any  rule  made thereunder  shall, if in custody, be released on bail or  on his own bond unless the public prosecutor has been given  an opportunity  to oppose his release and where he opposes  his release,  the Court is satisfied that there  are  reasonable grounds for believing that he is not guilty of such  offence and  that  he is not likely to commit any offence  while  on bail.  Section 21 mandates the Designated Court to  presume, unless the contrary is proved, that the accused has  commit- ted an offence under Section 3(1) if one of the four  things set out in clauses (a) to (d), is proved. Section 22 permits identification  of the offender on the basis of  his  photo- graph.  Section 28 empowers the Central Government  to  make rules on any of the matters set out in clauses (a) to (f) of sub-section  (2) thereof. Such rules have to be laid  before both  the Houses of Parliament. This in brief is the  scheme of the Act.     Under  Section  14(3) of the Act a Designated  Court  is conferred  with  the powers of a Court of  Sessions  and  is required to try any offence under the Act ’as if it were’  a Court of Sessions. The procedure which it must follow at the trial  is  the one prescribed in the Code fox the  trial  of cases before a Court of Sessions. This is of course  subject to the other provisions of the Act which means that if there is any provision in the Act which is not consistent with the procedure stipulated in the  Code  for such trials, it is the procedure in  the  Act that  shall prevail. The procedure for trial before a  Court of  Sessions is set Chapter XVIII of the Code.  Section  225 places the public prosecutor in charge of the conduct of the prosecution.  Section 226 requires him to open the  prosecu- tion  case by describing the charge against the accused  and stating by what evidence he proposes to bring home the guilt against  the  accused. Once that is done the  Judge  has  to consider  whether or not to frame a charge. Section  227  of the Code reads as under: "If,  upon consideration of the record of the case  and  the documents  submitted therewith, and after hearing the  sub-. missions of the accused and the prosecution in this  behalf, the Judge considers that there is not sufficient ground  for

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proceeding  against  the  accused, he  shall  discharge  the accused and record his reasons for so doing." 641 Under this section a duty is cast on the judge to apply  his mind to the material on record and if on examination of  the record  he  does not find sufficient ground  for  proceeding against  the  accused, he must discharge him. On  the  other hand if after such consideration and hearing he is satisfied that a prima facie case is made out against the accused,  he must proceed to frame a charge as required by Section 228 of the Code. Once the charge is framed the trial must ordinari- ly  end in the conviction or acquittal of the accused.  This is in brief the scheme of Sections 225 to 235 of the Code.     Section  227, introduced for the first time in  the  New Code,  confers a special power on the Judge to discharge  an accused  at  the threshold if ’upon  consideration’  of  the record and documents he considers ’that there is not  suffi- cient  ground’ for proceeding against the accused. In  other words  his consideration of the record and document at  that stage is for the limited purpose of ascertaining whether  or not there exists sufficient grounds for proceeding with  the trial  against  the accused. If he comes to  the  conclusion that there is sufficient ground to proceed, he will frame  a charge  under  section  228, if not he  will  discharge  the accused. It must be remembered that this section was  intro- duced  in the Code to avoid waste of public time over  cases which  did not disclose a prima facie case and to  save  the accused from avoidable harassment and expenditure.     The next question is what is the scope and ambit of  the ’consideration’  by  the trial court at that stage.  Can  he marshal the evidence found on the record of the case and  in the  documents placed before him as he would do on the  con- clusion of the evidence adduced by the prosecution after the charge  is  framed? It is obvious that since he  is  at  the stage  of  deciding whether or not there  exists  sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the  accused is charged. At that stage he may sift the evidence for  that limited  purpose but he is not required to marshal the  evi- dence  with a view to separating the grain from  the  chaff. All  that he is called upon to consider is whether there  is sufficient  ground to frame the charge and for this  limited purpose he must weigh the material on record as well as  the documents  relied  on by the prosecution. In  the  State  of Bihar v. Ramesh Singh, [1978] 1 SCR 257 this Court  observed that  at  the initial stage of the framing of  a  charge  if there  is a strong suspicion-evidence which leads the  Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for 642 proceeding  against the accused. If the evidence  which  the prosecutor  proposes  to adduce to prove the  guilt  of  the accused,  even if fully accepted before it is challenged  by cross-examination  or rebutted by the defence  evidence,  if any,  cannot  show that the accused committed  the  offence, then there will be no sufficient ground for proceeding  with the trial. In Union of India v. Prafulla Kumar Samal & Anr., [1979] 2 SCR 229, this Court after considering the scope  of section  227 observed that the words ’no  sufficient  ground for  proceeding against the accused’ clearly show  that  the Judge  is  not merely a post-office to frame charge  at  the behest  of the prosecution but he has to exercise his  judi- cial  mind  to the facts of the case in order  to  determine

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that a case for trial has been made out by the  prosecution. In assessing this fact it is not necessary for the court  to enter into the pros and cons of the matter or into  weighing and  balancing  of  evidence and probabilities  but  he  may evaluate  the  material to find out if  the  facts  emerging therefrom  taken at their face-value establish the  ingredi- ents  constituting the said offence. After  considering  the case law on the subject, this Court deduced as under: "(1) That the Judge while considering the question of  fram- ing  the charges under section 227 of the Code has  the  un- doubted power to sift and weigh the evidence for the limited purpose  of  finding out whether or not a prima  facie  case against the accused has been made out. (2)  Where  the materials placed before the  court  disclose grave  suspicion  against  the accused which  has  not  been properly  explained  the Court will be  fully  justified  in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend  upon the facts of each case and it is  difficult  to lay  down  a  rule of universal application.  By  and  large however  if two views are equally possible and the Judge  is satisfied that the evidence adduced before him while  giving rise  to some suspicion but not grave suspicion against  the accused  he will be fully within his right to discharge  the accused. (4) That in exercising his jurisdiction under section 227 of the  Code of Judge which (sic) under the present Code  is  a senior  and  experienced Judge cannot act merely as  a  Post office or a mouth-piece of the prosecution, but has to con- 643 sider the broad probabilities of the case, the total  effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on.  This however  does not mean that the Judge should make  a  roving enquiry  into the pros and cons of the matter and weigh  the evidence as if he was conducting a trial."     Again  in Supdt. & Remembrancer of Legal  Affairs,  West Bengal  v. Anil Kumar Bhunja & Ors., [1979] 4 SCC  274  this Court observed in paragraph 18 of the Judgment as under: "The  standard  of test, proof and judgment which is  to  be applied finally before finding, the accused guilty or other- wise,  is not exactly to be applied at the stage of  Section 227 or 228 of the Code of Criminal Procedure, 1973. At  this stage,  even a very strong suspicion rounded upon  materials before the Magistrate which leads him to form a  presumptive opinion  as  to  the existence of  the  factual  ingredients constituting the offence alleged, may justify the framing of charge  against the accused in respect of the commission  of that offence". From the above discussion it seems well-settled that at  the Sections 227-228 stage 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.     The  Act is a penal statute. Its provisions are  drastic in  that  they provide minimum punishments  and  in  certain cases  enhanced punishments also; make  confessional  state- ments  made  to  a police officer not below the  rank  of  a Superintendent of Police admissible in evidence and mandates raising of a rebuttable presumption on proof of facts stated

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in  clauses  (a) to (d) of sub-section (1)  of  Section  21. Provision is also made in regard to the identification of an accused  who  is not traced through photographs.  These  are some of the special provisions introduced in the Act with  a view  to controlling the menace of terrorism.  These  provi- sions  are a departure from the ordinary law since the  said law  was found-to be inadequate and not sufficiently  effec- tive  to deal with the special class of offenders  indulging in 644 terrorist  and disruptive activities. There can,  therefore, be  no doubt that the Legislature considered such crimes  to be  of  an aggravated nature which could not be  checked  or controlled  under  the ordinary law  and  enacted  deterrent provisions  to combat the same. The legislature,  therefore, made  special provisions which can in certain  respects  b.e said  to  be harsh, created a special forum for  the  speedy disposal  of such cases, provided for raising a  presumption of guilt, placed extra restrictions in regard to the release of  the offender on bail, and made suitable changes  in  the procedure with a view to achieving its objects. It is  well- settled  that statutes which impose a term  of  imprisonment for what is a criminal offence under the law must be strict- ly construed. In Usmanbhai Dawoodbhai Memon & Ors. v.  State of  Gujarat, [1988] 2 SCC 271 this Court in paragraph 15  of the judgment observed as under: "The  Act is an extreme measure to be resorted to  when  the police cannot tackle the situation under the ordinary  penal law.  The  intendment  is to provide  special  machinery  to combat the growing menace of terrorism in different parts of the  country. Since, however, the Act is a drastic  measure, it  should not ordinarily be resorted to unless the  govern- ment’s law enforcing machinery fails." To put it differently the ratio of the decision is that  the provisions of the Act need not be resorted to if the  nature of  the  activities of the accused can be checked  and  con- trolled  under the ordinary law of the land. It is  only  in those  cases  where the law enforcing  machinery  finds  the ordinary law to be inadequate or not sufficiently  effective for tackling the menace of terrorist and disruptive  activi- ties that resort should be had to the drastic provisions  of the Act. While invoking a criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investiga- tion that facts emerging therefrom prima facie constitute an offence  within the letter of the law. When a  statute  pro- vides  special  or enhanced punishments as compared  to  the punishments prescribed for similar offences under the  ordi- nary penal laws of the country, a higher responsibility  and duty  is cast on the Judge to make sure there  exists  prima facie  evidence  for supporting the charge levelled  by  the prosecution.  Therefore,  when a law visits  a  person  with serious  penal  consequences  extra care must  be  taken  to ensure that those whom the legislature did not intend to  be covered by the express language of the statute are not roped in by stretching the language of the law. But that does  not mean that the judicial officer called upon to decide whether 645 or not a case for framing a charge under the Act is made out should  adopt a negative attitude. He should frame a  charge if the prosecution shows that the material placed on  record and the documents relied on give rise to a strong  suspicion of  the accused having committed the crime  alleged  against him.     We may now proceed to apply the law stated above to  the

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facts of the present case. The prosecution case against  the five accused persons is that they formed an unlawful  assem- bly,  killed Raju and injured keshav ’with intent to  strike terror in the people or any section of the people’ i.e.  the residents of the locality, by the use of lethal weapons such as  knives  and  iron-rods and  thereby  committed  offences punishable  under  Section  3(1) of the Act  read  with  the offences  under  the Penal Code and the Bombay  Police  Act. When the complaint was lodged by the injured Keshav on  12th July,  1989  no offence under section 3(1) of  the  Act  was registered.  The offence under section 3(1) of the  Act  was introduced for the first time on 29th July, 1989. That means that between 12th July, 1989 and 29th July, 1989 the  Inves- tigating  Officer  collected evidence which enabled  him  to register an offence under section 3(1) of the Act. When  the first  bail  application was disposed of on  2nd  September, 1989, the Designated Court came to the conclusion that prima facie section 3(1) of the Act had no application. In  taking that  view the Designated Court examined the  statements  of witnesses on which reliance was placed to support the prose- cution  case that section 3(1) of the Act was attracted.  It may  be  stated  that accused Santosh Rathod  runs  a  cycle repair  shop.  On  the day previous to  the  occurrence  the deceased  Raju  had gone to the cycle shop as his  tube  was punctured.  At  that time accused Jitendra and  some  others were present at the cycle shop and in their presence accused Jitendra is alleged to have stated as under: "Presently Raju and Keshav are having dominance in the town. We  would become dadas of the town upon taking lives out  of them. Then there would not be any rival to us in this  town. Upon  commission of murder of Raju and Keshav on account  of tenor the people would be scared." This is unfolded in the statements of Raju Narain,  Sukharam Shinde and Bhau Saheb. Thus according to the prosecution the genesis of the crime was to gain supremacy in the underworld by  eliminating the members of the rival gang. Ram  Lokhande speaks about the incident in question and states that he had heard the assailants stating that on the elimination of Raju and Keshav they will become the Dadas and 646 no  one  will dare to raise his voice  against  them.  Bhika spoke  about the previous incident on the same day at  about 11.30  a.m. which shows that there was rivalry  between  the two  gangs. Mr. Masodkar, the learned counsel for the  State Government, as well as the appellant of criminal Appeal  No. 703/89, therefore, contended that the acts of violence  were perpetrated  with intent to strike terror in the  people  at large  and  in particular the residents of the  locality  in which the crime was committed. Our attention was also  drawn to  certain statements of witnesses to the effect that  some of  the accused persons were related to the members  of  the Shiv Sena party. The Designated Court came to the conclusion that  the material placed before it and the  statements  re- corded  by  the Investigating Officer did not  disclose  the commission  of  an offence under Section 3(1)  of  the  Act. According  to  the  Designated Court the  intention  of  the accused persons was not to strike terror in the people or  a section of the people but only to eliminate Raju and  Keshav with  a  view to gaining supremacy in  the  underworld.  The learned  Judge  presiding-over  the  Designated  Court  then proceeds to add as under: "True  it is that few people might have been  terror-striken and terror might have been the fall out of naked act, but to strike the terror amongst people was not the object of  this naked  act. If at all people are getting terror-striken,  it

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is those few people who live by the crime and not the people law abiding majority of citizens. Going by these  statements there  is nothing more to this crime than a  strife  between two  warring  factions  staking claim to  the  supremacy  of underworld." The learned Judge also came to the conclusion that there was nothing on record to show that the Government’s law  enforc- ing  machinery  had failed and it had  become  necessary  to resort  to the drastic provisions of the Act with a view  to combating the menace of terrorism.     We  have  carefully  considered the  statements  of  the witnesses on which the prosecution relies in support of  its contention  that the accused had committed an offence  under section 3(1) of the Act. We think that the Designated  Court was right in coming to the conclusion that the intention  of the  accused  persons was to eliminate Raju and  Keshav  for gaining supremacy in the underworld. A mere statement to the effect that the show of such violence would create terror or fear  in  the  minds of the people and none  would  dare  to oppose them cannot constitute an offence under section  3(1) of the Act. That may indeed 647 be  the fail out of the violent act but that cannot be  said to be the intention of the perpetrators of the crime. It  is clear  from the statement extracted earlier that the  inten- tion of the accused persons was to eliminate the rivals  and gain  supremacy in the underworld so that they may be  known as the bullies of the locality and would be dreaded as such. But  it  cannot be said that their intention was  to  strike terror in the people or a section of the people and  thereby commit  a terrorist act. It is clear that there was  rivalry between  the party of the accused on the one hand  and  Raju and Keshav on the other. The former desired to gain suprema- cy  which necessitated the elimination of the  latter.  With that  in  view they launched an attack on Raju  and  Keshav, killed  the former and injured the latter.  Their  intention was  clearly to eliminate them and not to strike  terror  in the people or a section of the people. It would have been  a different  matter if to strike terror some innocent  persons were  killed. In that case the intention would be to  strike terror and the killings would be to achieve that  objective. In the instant case the intention was to liquidate Raju  and Keshav and thereby achieve the objective of gaining suprema- cy  in the underworld. The consequence of such  violence  is bound  to cause panic and fear but the intention of  commit- ting  the  crime cannot be said to be strike terror  in  the people  or any section of the people. We are, therefore,  of the  view that the Designated Court was fully  justified  in taking  the view that the material placed on record and  the documents relied on did not prima facie disclose the commis- sion  of  the offence punishable under section 3(1)  of  the Act.     It  was  next contended by the learned counsel  for  the State  of Maharashtra that under section 12(1), when  trying the offence under the Act, the Designated Court was entitled to try any other offence with which the accused were charged at  the same trial since the offences punishable  under  the Penal  Code and the Bombay Police Act were committed in  the course of the same incident. Section 12(.1) no doubt  empow- ers the Designated Court to try and offence punishable under any  other statute along with the offence  punishable  under the  Act if the former is connected with the  latter.  That, however,  does not mean that even when the Designated  Court comes  to  the conclusion that there  exists  no  sufficient ground  for framing a charge against the accused under  sec-

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tion 3(1) of the Act it must proceed to try the accused  for the commission of offences under other statutes. That  would tantamount to usurping jurisdiction. Section 18,  therefore, in terms provides that where after taking cognizance of  any offence  the  Designated Court is of the  opinion  that  the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, 648 transfer the case for the trial of such offence to any court having  jurisdiction  under the Code.  Therefore,  when  the Designated  Court came to the conclusion that there  was  no prima facie evidence to frame a charge under section 3(1) of the  Act, it was justified in transferring the case  to  the Court of Sessions, Ahmadnagar, which alone had  jurisdiction under  the Code. Once the Designated Court came to the  con- clusion  that  the evidence was not sufficient  to  frame  a charge  under section 3(1) of the Act, the Designated  Court had no alternative but to resort to Section 18 and  transfer the  case to the competent court under the Code. We,  there- fore, do not see any merit in the contention of the  learned counsel  for  the State of Maharashtra that even  after  the Designated  Court came to the conclusion that no ground  was made out under section 3(1) of the Act, it was duty bound by virtue of section 12(1) of the Act to proceed with the trial for  the other offences under the Penal Code and the  Bombay Police  Act. We think the course adopted by  the  Designated Court  in  transferring the case to the  Sessions  Court  in clearly in keeping with section 18 of the Act.     Before  we part we may state that Mr. Lalit the  learned counsel  for  the accused tried to urge before us  that  the provisions  of the Act were intended to deal with  political terrorism  intended to undermine the security of  the  State and  not to ordinary law and order problems. We do not  con- sider it necessary to go into this larger question  because, in our opinion, the Designated Court was fight in coming  to the  conclusion that this was a case of  inter-gang  rivalry not attracting Section 3(1) of the Act.     In  the  above view that we take all the  three  appeals fail  and are dismissed. Mr. Lalit the learned  counsel  for the  accused stated that since the High Court  has  directed expeditious  disposal  of the case he would  not  press  the special  leave  petition directed against the  High  Court’s order  refusing  bail. In view of the  said  statement,  the Special leave petition No. 2459/89 will stand disposed of as not pressed. We may, however, state that the Sessions  Court to  which  the case stands transferred should  endeavour  to complete  the trial as early as possible, preferably  within four months from the date of receipt of this Court’s order. T.N.A.                                     Petition disposed of. 649