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CASE NO.: Appeal (crl.) 1298-1299  of  1998

PETITIONER: SURESH ALIAS PAPPU BHUDHARMAL KALANI

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT:       02/03/2001

BENCH: K.T. Thomas & D.P. Mohapatra

JUDGMENT:

WithCriminal Appeal Nos.66-67/1999 and Criminal Appeal Nos. 572-73 of 1999

J U D G M E N T

D.P.MOHAPATRA, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   In these three sets of appeals the judgment/order passed by  the Designated Court of Thane at Pune on 10th  November, 1998  in  T.S.C.   No.25/92 and 9/93  has  been  challenged. Criminal  Appeal  Nos.  1298-99/98 and Criminal Appeal  Nos. 66-67/99  have  been  filed by the accused  persons  against rejection  of the petition filed by them under section 18 of the  Terrorists and Disruptive Activities (Prevention)  Act, 1987 [for short the TADA (P) Act ] .  Criminal Appeal Nos. 572-573/1999  have  been filed by the State  of  Maharashtra against  finding  recorded by the Special Court that on  the materials  placed on record by the prosecution no charge can be  framed  under section 3 of the TADA (P) Act.  Since  the incidents giving rise to the criminal cases are the same and the appeals are directed against the same judgment/order for the  sake  of convenience we will state the facts  and  deal with  the  case  in  Criminal Appeal  Nos.1298-99/  1998  in detail.

   In  this appeal filed under section 19 of the TADA  (P) Act,  accused  no.4  (Suresh @ Pappu Bhudharmal  Kalani)  of T.S.C.No.25/1992,  has  challenged the order passed  by  the Designated Court of Thane rejecting the application filed by him under section 18 of the Act for discharging him from the charges  under  sections 3 and 5 of the TADA (P) Act and  to transfer the case to the Sessions Court on the ground, inter alia,  that no case under section 3 or section 5 of the TADA (P) Act is made out against him.

   The prosecution case, shortly stated, is as under:-

   One   Dunichand  Kalani,  who   was  the  President   of Ulhasnagar  Taluka Congress, used to make complaints against one  Gopal Rajwani and his political supporters about  their

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criminal  activities.   On 9th of April 1989 at  about  9.00 p.m.   the  said Dunichand Kalani was murdered on  a  public road  by  10-12  persons  armed with  weapons  like  knives, gupties,  revolvers, etc.  On the FIR lodged by one  Narayan Budharmal  Kalani at Ulhasnagar Police Station a case  under sections  302,  147,148,149  of the Indian  Penal  Code  and section  25  of  the Arms Act was registered  against  Gopal Rajwani and some others.  In the said case the provisions of TADA  (P)  Act  was  involved   and  it  was  registered  as C.R.No.T-296/89  under  section  3 of the TADA (P)  Act  and under  sections 147,148,149 and 120B, 302 of IPC and section 25  of  the Arms Act.  After investigation charge-sheet  was filed  in the case against 23 persons.  The appellant is the nephew  of deceased Dunichand Kalani.  Both Gop Beharani  as well  as  the  accused  no.4   were  elected  as   Municipal Councillors  and a dispute arose between them on account  of claim over Presidentship of the Ulhasnagar Municipal Council .   On  this account, it is alleged, that there  was  enmity between Gop Beharani and accused no.4.

   On 10.7.1992 while the deceased Maruti Dagadu Jadhav was sitting in his office at about 8.15 p.m.  and chit- chatting with  one  Arun  Kaklij,  one   white  coloured  Maruti  van No.MH-12-1042  came  near  his  offfice  and  three  persons alighted  from the same and rushed inside the office.  Those three persons fired bullets at Maruti Dagadu Jhadav from the revolver held by them.  In the incident Arun Kaklij was also injured.   After the incident the assailants escaped in  the Maruti  van.  The FIR was recorded by PSI of the  Vithalwadi Police  Station  on  the dying declaration  made  by  Maruti Dagadu  Jadhav  in  which he gave the description  of  three assailants.   The  motive  for the murder  was  ascribed  to previous  enmity.   Thereafter  Maruti   Degadu  Jadhav  was admitted  in the nursing home for treatment.  At about 10.35 p.m.   on the same day i.e.  10th July , 1992, he  succumbed to  the  injuries.   Thereafter the  case  registered  under sections  147, 148, 149 and 307 IPC and section 25(1)(A)  of the  Arms  Act was changed from section 307 to  section  302 IPC.   On 20th July 1992 the provisions of section 5 of  the TADA  (P)  Act  was  invoked  in the  case.   In  course  of investigation  it came to light that there was long standing enmity between Gopal Rajwani and Pappu Kalani, and they have murdered the trusted men of each other due to rivalry and on account  of  enmity.  According to the  prosecution  accused No.4  and  other  accused armed with revolvers  and  pistols killed  Maruti  Jadhav and attempted to murder Arun  Kaklij. The  further  case  of  the prosecution is  that  the  other co-accused  has  used  un-licenced   revolvers  and  pistols attracting  the  offence under sections 3 and 5 of the  TADA (P)  Act  and  section  25 of Arms Act in  addition  to  the sections of IPC.

   The  accused No.4 filed the application under section 18 of  the  TADA (P) Act stating, inter alia, that  the  entire charge-sheet   and   the   materials    collected   by   the investigating  agency  do  not disclose  any  offence  under section  3  or  section 5 of the TADA (P) Act .   The  other offences  alleged to have been committed by the accused  are not  triable  by the special court.  He,  therefore,  prayed that  he  may be discharged from the provisions of the  TADA (P)  Act  and  the case may be transferred to  the  Sessions Court,  Thane  for trial of the offences under IPC and  Arms Act, if any.

   According  to  the prosecution there are two  groups  in

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Ulhasnagar,  one is headed by Gopal Rajwani and the other by Pappu  Kalani.   The  deceased Maruti Jadhav was  the  body- guard  of Gopal Rajwani.  The deceased Maruti Dagadu  Jadhav and one Krishna Pillaye were the eye-witnesses to the murder of  Lalu  in the year 1989 at Hotel Sun-N-Sand Bombay.   The said  Krishan Pillaye was murdered, thereafter Maruti Dagadu Jadhav  was the only remaining eye witness in the said  case in which notorious gangsters have been involved.  From these facts,  according to the accused no.4, it was crystal  clear that  murder  of Maruti Dagadu Jadhav was either because  of the  fact that he was an eye witness against some  dangerous criminals  or  he was a victim of a gang war.   The  accused contended that in either case it disproves the commission of terrorist  act  which requires that the act must  be  done with  the intention to strike terror in the people which  is an  expression  of much wider import.  The  accused  alleged that  the  police has fabricated certain  confessions  which were  purely involuntary and even these alleged  confessions spelt  out  no offence under section 3 or section 5  of  the TADA  (P) Act.  None of the confessions recorded in the case satisfies  the mandatory requirement of the TADA (P) Act and as  such they cannot be used as evidence.  Invocation of the TADA (P) Act in this case is otherwise wrong and illegal.

   The learned special Judge has discussed in great detail, to  some extent unnecesarily, different aspects of the case, the  scope  of inquiry at the stage of framing charge  under section 227 of the Code of Criminal Procedure, the manner in which  the evidence collected by the investigating agency is to  be sifted at that stage and the approach to the question whether  the charge should be framed against the accused and he  should  be  called  to face the trial or  he  is  to  be discharged from the case at that stage.  The learned special Judge has noticed several judgments of the Supreme Court and different High Courts on these points and quoted extensively from  them.  He has also dealt with in detail the statements made  by  the witnesses who are proposed to be  examined  in support of the prosecution case.

   We do not feel it necessary to repeat the discussions on the  different  points  and the decisions  which  have  been referred to in the judgment.  However we notice a few recent decisions  of  this Court touching on the question.  In  the case  of State of Maharashtra vs.  Priya Sharan Maharaj  and others (1997) 4 SCC 393, this Court referring to the case of Niranjan  Singh  Karam Singh Punjabi vs.   Jitendra  Bhimraj Bijjaya, (1990) 4 SCC 76, held that at the stage of sections 227  and 228 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.  Therefore, at the stage of framing of the charge the Court has to consider the material with  a  view to find out if there is ground  for  presuming that  the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the  purpose  of arriving at the conclusion that it  is  not likely to lead to a conviction.

                               (Emphasis supplied) @@                                 IIIIIIIIIIIIIIIIIIII

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   In the case of State of M.P.  Vs.  Mohan Lal Soni (2000) 6  SCC  338,  this  Court   referring  to  several  previous decisions,  held that the crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider  whether there is sufficient ground for  proceeding against  the  accused.   The  court   is  not  required   to appreciate  evidence  to  conclude   whether  the  materials produced  are sufficient or not for convicting the  accused.

                               (Emphasis supplied)

   The  learned  special  Judge  in para 18  of  the  order extracting  from  the Judgment of the Bombay High  Court  in Rudolf  Fernandes  vs.  State of Goa (1993  Mh.L.J.   1664), observed  and  in our view rightly, that each  case  depends upon  its  particular facts and circumstances  and  sometime even  a remote link between the activities of an accused and the  facts  of the case may justify a  reasonable  inference warranting  a  judicial  finding that there  is  ground  for presuming  that  an accused has committed the offence or  at least  to presume that the question of his being directly or indirectly involved in the commission of such offence is not to be ruled out.

   In paras 24 to 31 he has considered the question whether the  offences under section 3 and 5 of the TADA (P) Act  are made  out  against  the accused without taking  aid  of  the confessional statement of the accused.

   After  sifting  the materials and after considering  the contentions  raised  on  behalf of the prosecution  and  the accused, the learned special Judge held:  On perusal of all the statements of the witnesses it clearly appears that this was  of rivalry between two goons and for some reasons which is  mentioned  by the prosecution that Maruti Jadhav was  an eye  witness to one of the murder incidents and therefore he was  liquidated.   There is no other evidence on  record  to show  that the accused persons had committed these acts i.e. firing  at  Maruti Jadhav to strike terror in the prople  or section of the people.

   In paragraph 32 the learned special Judge has considered the  question whether the offence under section 3(1) of  the TADA  (P) Act is attracted in the case.  Testing the case on the  principles  laid down by the Supreme Court in  Niranjan Singh Karam Singh Punjabi vs.  Jitendra Bhimraj Bijjaya case (supra)  and the case of Mohd.  Saleem Vs.  State of Gujarat (1994) 5 SCC 369 the Court held in para 35 of the order that the  allegation  of the prosecution regarding  intention  to strike terror are not clearly mentioned in the charge-sheet. The  intention of the accused is not to strike terror in the people  or  any section of the people, but to liquidate  the persons who are eye witnesses to the earlier incident or the offences  committed  by  the accused.  The  learned  special Judge further observed :

   But  the  fact  remains that the  prosecution  has  not produced  sufficient  evidence  on  record  to  justify  the inference  that  the accused while committing the murder  of Maruti  Dagadu Jadhav or attempting to commit murder of Arun Kaklij  (these  contentions  are taken on the basis  of  the evidence  through the statements adduced by the  prosecution on  record)  by  using fire arms, despite  Raju  Jadhav  and Pruthviraj  Baviskar in their statement after about 3 months

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submitted  that  due to the fear of the accused, they  could not  tell the names of the assailants earlier, that fact  by itself  will not make out the intention of the accused u/s 3 of  the  TADA.  True that use of fire arms is in one of  the ingredients  to be covered u/s 3 of the TADA.  But even then the  intention,  as stated above, should be coupled with  it and  in  its  absence, the charge u/s 3(1)  of  TADA  cannot sustain in view of the above authorities particularly in the cases  of Hitendra Thakur, Niranjan Singh, Kashmir Singh and Bonkya.  Consequently, charge u/s 3(13) of the TADA can also not  be  framed  as  these offences  are  inter-linked  with Section 3(1) of the TADA.

   From  para  37  onwards the learned  special  Judge  has discussed  the  question as to whether prima  facie  offence under  section  5  of the TADA has been made  out,  for  the purpose of framing of the charge against the accused person. The  Court  has  taken note of the  observations  in  Sanjay Dutts  case reported in 1995 Crl.  L J 477 to the following effect :

   In  the prosecution for an offence punishable u/s 5  of TADA  the prosecution is required to prove, that the accused was  in  conscious  possession unauthorisedly,  in  a notified  area of any of the arms and ammunition  specified in columns 2 and 3.  No further nexus with any terrorist or disruptive  activity  is  required  to   be  proved  by  the prosecution in view of the statutory presumption.

   It  was  further observed that once the prosecution  has proved unauthorised conscious possession of any of the specified  arms and ammunition etc.  in a notified area by the  accused, the conviction would follow on the strength of presumption  unless the accused proves the non-existence  of fact  essential to constitute any of the ingredients of  the offence.

   In  para 49 of the Order the learned special Judge  held that:   On  perusal of the allegations against the  accused persons,  it would be seen that this is not the case of only possession  of arms and ammunition by the accused, but it is a  case  of its use for causing the death of one person  and injuring the other.

   In  para  59  of the order the  learned  Judge  observed that: some empty cartridges were recovered from the person of  the deceased as well as from the injured and from  spot. Therefore,  the  possession  of the same by the  accused  is explicit and apparent.

   In  para 61 the learned Judge held that in the facts and circumstances  of the case and on the material on record  it is  not  possible  to say that the accused persons  did  not possess the arms and ammunition.

   In  para 64 of the order it is observed that: the fact remains  that if evidence of eye witnesses is accepted, then the  possession of arms and ammunitions at the relevant time will  have  to  be  held  to  be  proved  and  when  we  are considering  the case for discharge of the accused, it  will have  to  be  held that in such circumstances,  the  accused cannot  be discharged for the offence under section 5 of the TADA Act.

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   In  para 65 of the order the learned special Judge  took note of the position that if the case is tried by Designated Court  the said Court can try the offence under the TADA (P) Act  as well as the offences coupled with those under I.P.C. and  if  the  case is tried by the Sessions Court  the  said Court  cannot  try the offences under the provisions of  the TADA  Act.  He was of the opinion that in case of doubt such cases  should be tried by the Designated Court itself.   The learned  Special  Judge observed that the area in which  the alleged  offences are said to be committed, is not stated to be not notified area and the accused do not claim possession of  used  arms  and ammunition in incident,  as  authorised. Therefore,  on  conviction it would be obvious that  offence under  section  5  of  the TADA would be made  out  but  the Sessions  Court  will  not be able to try  the  offence  and convict  the  accused  for that offence.  Then  the  learned Special Judge summed up his conclusions in these words:

   Therefore,  on that conviction it would be obvious that the  offence  under section 5 of the TADA Act would be  made out,  but  the  sessions court may not be able to  try  that offence  and  convict  the  accused for  that  offence  and, therefore, in my opinion, the result of the above discussion would  be  that  the accused cannot be discharged  from  the offence under section 5 of the TADA Act and consequently, no order  under  section 18 of the TADA Act to  transfer  these cases to the Court of Sessions, Thane, can be passed.

   Thereafter  the learned Judge proceeded to consider  the cases  of  the  individual accused persons and came  to  the conclusion expressed in these words:

   It  is  true  that these incriminating  statements  are recorded  after  considerable time.  But, as  stated  above, statements  of the witnesses have to be taken at their  face value.   It is already pointed above that while  considering the  discharge  application of the accused, the evidence  is not  to  be assessed meticulously.  It is also necessary  to state  that  at  that stage, it cannot be considered  as  to whether  the  case  will surely end in  conviction  or  not, although  possibility of sure acquittal for some reason  may be  considered  for  this  purpose.  On  the  basis  of  the statements  on  record  which  are   filed  along  with  the charge-sheet  ex-facie,  it is not possible to hold that  on that  particular day, accused Pappu Kalani and accused Akbar were  not  associated  with  the  assailants  named  in  the statements  of the eye witnesses at the material time, in an incriminating manner.

   The concluding portion of the order reads:

   In  view of the above findings, the applications of the above  accused for discharge for the offence under section 5 of the TADA Act cannot be allowed.  Hence, they are rejected to that extent.

   Prayer  of  the accused for transfer of the  case  under section 18 of the TADA Act is also rejected.

   The  charges  against the accused will be  framed  after hearing  both  the  counsel  in   pursuance  of  the   above observations.

   The trial is already expedited.

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   We  have  carefully  perused the order  of  the  Special Judge,   which  is  under   challenge  and  other   relevant@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ documents.   We  are not satisfied that the order passed  by@@ JJJJJJJJJJ the  Special Judge suffers from any jurisdictional error  in the  approach to the case or in sifting of the materials for the purpose of ascertaining whether a prima facie case under Sections 3 and 5 of the TADA (P) Act is made out against the appellant and in arriving at the conclusions as expressed in the order.

   Section  18  of  the TADA (P) Act provides  that  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 offence to any court having jurisdiction under the Code.  In this case the learned special Judge has recorded the finding that  a prima facie case under section 5 of the TADA (P) Act has  been  made  out.  Therefore the petition filed  by  the accused  under  section 18 of the TADA (P) Act  was  rightly rejected.  The finding recorded by the learned special Judge holding  that  on the materials placed by the prosecution  a prima  facie case under section 3 of the TADA (P) Act is not made  out also does not suffer from any serious  illegality. In  the  circumstances  the  judgment/order  passed  by  the learned  special  Judge does not warrant  any  interference. Accordingly,  the  appeals,  being  devoid  of  merits,  are dismissed.   Hearing of the cases be expedited.  The records be returned forthwith.