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PETITIONER: ANIRUDHSINHJI KARANSINHJIJADEJA & ANR.

       Vs.

RESPONDENT: THE STATE OF GUJARAT

DATE OF JUDGMENT11/08/1995

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) AHMADI A.M. (CJ) SEN, S.C. (J)

CITATION:  1995 AIR 2390            1995 SCC  (5) 302  JT 1995 (6)   146        1995 SCALE  (4)715

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T HANSARIA, J.      The two  appellants are in jail being accused of having committed offences, inter alia under Sections 3 and 5 of the Terrorists and  Disruptive Activities (Prevention) Act, 1987 (for short  ’the TADA’).  Their prayer is to release them on bail, which  has been  denied by  the Designated  Court.  In support of  this plea,  a large number of points were raised before us  in course of arguments. It is not necessary to go into all  these questions  as, according  to us,  the appeal deserves  to   be  allowed  on  the  sole  ground  of  wrong invocation of TADA in the case of the appellants. 2. To bring home the above, we may note the prosecution case in short, which is that:      "......on March  15, 1995 one Jayantilal      Mohanlal Vadodaria who is a son of elder      brother   Mohanlal   Kalabhai   of   the      complainant,  was   murdered   by   some      assailants  near  Ashapura  Dam  at  the      distance of  3 K.M. from Gondal town. So      on  receiving   this  information,   the      complainant went to the scene of offence      where  a   dead  body   of  his   nephew      Jayantilal was  lying. One Vespa-scooter      of the deceased was also lying there. It      was found  that there  were injury marks      by fire  on the  body of  the  deceased.      There was  a  certridge  of  red  colour      which was used, was lying near the body.      It was  further stated  in the complaint      that deceased  Jayantilal was travelling      on his  scooter for  going to  his  vadi      from his house at 4.00 p.m. as usual and      he  was  passing  throught  the  way  of

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    Ashapura Dam.  His vadi  is situated  on      the road of Kotda Sangani Village". 3.   It has  been alleged  that deceased Jayantilal, aged 32 years, was  a resident of Gondal and was a leading member of the Patel  community. Previously,  he was  a member  of  the Gondal Nagar  Palika and  also  Director  of  Gondal  Nagrik Sahakari Bank.  The post-mortem  revealed that  the deceased had received  gun-shot injuries  and also injuries caused by knives. The murderers had come in a white Ambassador Car No. GIG-375 and  had fired  twice at the deceased and had caused injuries by  sharp weapons.  After killing the deceased, the murderers absconded. The car was ultimately recovered from a place within  Jamkandorna Police  Station, and  all the four accused were arrested there on 16.3.1995 at 2115 hours. 4. The  further allegation  is that  the four persons, after committing the murder, went to Anirudhsinh Karansinh Jadeja, Sarpanch of  village Mota  Umvada and  a  resident  of  that village and  sought refuge.  Anirudhsinh was in his field at that time  (5.30 P.M.) and Digubha Jadeja was present there. Anirudhsinh declined  to provide  shelter but agreed to keep the weapons.  One country-made  gun with  cartridges and two knives were  packed in a kundle and Vishubha and Digubha had concealed the  bundle by  digging a  pit on  the ground of a small room  in the  field belonging  to  Anirudhsinh.  After hiding  the  weapons,  Vishubha  along  with  other  alleged murderers  left  the  field  and  went  away  by  the  white Ambassador car  in which  they had come. Police arrested and started criminal  proceedings not  only against  the alleged murderers but  also againstAnirudhsinh  Jadeja  and  Digubha Jadeja, the appellants herein. 5. Anirudhsinh  (appellant No.1)  was  produced  before  the Executive Magistrate, Gondal, on 18.3.1995 on the allegation that one country made gun and cartridges were recovered from his field  and a  case  was  registered  against  him  under Section 25(1)(b)  of the Arms Act bearing Crime Registration No.28/95. The allegation against Digubha; appellant was that he had  abetted in  secreting the weapon. They were arrested and produced  before the  Executive Magistrate  who  granted five days’  remand. On  a  prayer  made  on  behalf  of  the appellants on  23.3.1995, the  Executive Magistrate directed the police  authorities not  to ill-treat the appellants. On 24th March,  1995 the  Executive  Magistrate  sent  all  the accused persons, including the appellants, to hospital where they were  kept till  27th March, 1995. Thereafter, an order was passed on 27th March, 1995 by which all the accused were remanded to  judicial custody.  On behalf  of the State, the order  of   the  Magistrate   refusing  police   remand  was challenged before  the Sessions  Judge. On  28th March, 1995 the appellants  had made  an application for bail, which was rejected by  the Designated Court on 18th April, 1995. Hence this appeal to this Court by special leave. 6. The  first point  to be  decided is about the legality of invocation of TADA. Its Section 20-A lays down:-      "Congnizance of offence.      20A.      (1)  Notwithstanding  anything      contained in  the Code,  no  information      about the commission of an offence under      this Act shall be recorded by the police      without  the   prior  approval   of  the      District Superintendent of Police.           (2) 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".

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7.     Therefore,   condition  precedent  for  recording  an information about the commission of an offence under TADA is the approval  of the  District Superintendent  of Police and cognizance of  any offence under TADA cannot be taken by any court ‘without  the  previous  sanction  of  the  Inspector- General of  Police, or, as the case may be, the Commissioner of Police’.  The provision  of the statute is clear that the District Superintendent  of Police under sub- section(1) can grant approval/sanction  for recording  of  any  information about commission  of an offence under TADA. The jurisdiction under Section  20A (1)to grant approval for recording of any information about  the commission  of an offence under TADA, has been vested in the District Superintendent of Police. 8.    In  the instant  case, a specific point has been taken in the  Special  Leave  Petition  that  prior  approval,  as required by  section 20A(1)  of TADA,  was not  taken.  This section  was  introduced  to  safeguard  the  citizens  from vexatious prosecution  under TADA.  The Designated Court had failed to  appreciate that  the  DSP  had  not  given  prior approval and  the case  of the  appelants  under  TADA  was, therefore, nonest. 9.    This  ground appears  to be  of substance. The DSP did not exercise  the jurisdiction  vested in  him under Section 20A (1).  On the contrary, he abdicated his jurisdiction and referred the  matter to the Additional Chief Secretary, Home Department, on  17th March,  1995, requesting for permission to invoke  the provisions  of Sections  3 and  5 of  TADA by sending a report for this purpose as under:-      "In the  matter of  Gondal  City  Police      Station I.C.R.  NO.34/1995 under Section      302. 120-B  of the Indian Penal Code and      Indian Arms  Act Section  25(1)  (c)  of      the Indian  Arms Act  the facts are that      the   victim,    i.e.,   the    deceased      Jayantibhai  Mohanbhai  Vadodaria,  aged      32, resident of Yoginagar, Gondal was an      active member of B.J.P. and was a leader      of Patel  community.  In  past,  he  was      member of  Gondal Municipality  and  was      also  a   director  in   Gondal   Nagrik      Sahakari Bank  Ltd., which is managed by      B.J.P.           on 15.3.1995  when the  First Chief      Minister of  B.J.P. Government took oath      and  installation   ceremony  was  being      performed at  Gandhinagar, on  that very      day in the evening at 14-30, Jayantibhai      Vadodaria was  killed on Ashapura Dam by      firing shots  and by  sharp weapons. The      complaint of  this murder  is lodged  by      Shri Nanalal  Kalabhai Patel,  the uncle      of deceased  and on the strength of that      complaint, on  making investigation,  it      is revealed  that the murderers had come      in white coloured Ambassador car No. GRG      375 and  had fired  twice on him and had      also caused  injuries by  sharp  weapons      and killed  Jayantibhai  and  then  they      have absconded.  In this case during the      investigation, the  names  of  following      persons are disclosed:      1.   Dinubha alias  Dineshsinh Kiritsinh           Jadeja, Resident of Gondal.      2.   Harshyamsinh    Jalamsinh   Jadeja,           Dismissed   Constable    of    SRP,

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         resident   of    Sindhavadar.   Tal           Gondal.      3.   Veshubha  Abhesinh   Jadeja,   (SRP           Constable) resident of Gondal.      4.    Jitendrasinh Chandrasinh Chudasam,           resident of Virpur (Jetpur).      During the  course of  investigation, on      16.3.1995 at  21-15 all the four accused      are arrested  from the  limits  of  Jam-      kandorna Police  Station along  with the      car used in the offence.           All the four accused declare during      investigation that they reside in Gondal      and when  accused No.2 and 3 was in need      of loan  from Gondal Nagrik Sahkari Bank      and had  contacted the  deceased who was      director of  the said Bank at that time,      the deceased  had told to the applicant,      i.e., accused No.2 and 3 herein that ‘Go      Go, this  Bank is not meant for Darbars;      for getting  loans, only Patels may come      to me  and no  Darbar can  get loan’. On      this  talk,   there  was  quarrel.  This      quarrel had  taken place before about 10      or 12  days and since then the said four      Darbars had decided to kill Jayantibhai,      else, the  strength of  Patels  will  be      increasing,  therefore,  since  last  10      days,  they   were  planning   to   kill      Jayantibhai and  on 15.3.1995 on finding      an opportunity, they have killed him. In      past also  the murder  of MLA of Gondal,      Popatbhai  Sorathia  by  the  member  of      Darbar    community.    Therefore,    on      happening of  the present  incident, the      members of  Patel community  are  feared      and frightened  and nobody dared to come      to Police  Station. Later on Jayantibhai      Dhol  a  leader  of  Patel  community  ,      informed us  on telephone  at Rajkot and      told about the incident and requested to      make some  arrangement and to direct the      local police  to reach  at the  scene of      offence. Therefore,  we  informed  local      police  and   after  the   local  police      reached on  the scene  of  offence,  the      family members  of  the  deceased  could      went there.           All the  accused who have committed      the murder  belong to  Darbar  community      and  by   committing  murder   of  Patel      leader, they have created enmity between      the two  community. In  Gondal  City  in      past  also  the  Darbar  community  have      committed the murder of Patel leader and      now   also   Jayantibhai   is   murdered      mercilessly by  firing shots  and  knife      blows   and   they   have   spread   the      atmosphere   of    terror   and    fear.      Therefore, the  harmony between  the two      community   is    very   seriously   and      adversely  affected.   because  of  this      incident, the  people in  that area  had      started  running  and  moving  here  and      there and  the hawkers doing business in

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    hand-crafts were also frightened and ran      away. The  police force  in large number      was  put   on  patrolling  and  numerous      vehicles and police officers were put to      patrolling and  only  thereafter  public      could dare to come out from home.           From the  above facts,  it is clear      that the  accused have committed offence      under Sections  3 and 5 of the Terrorist      and Distruptive  Activities (Prevention)      Act, 1987 by keeping illegal weapons and      by  keeping   ammunition  and  therewith      murdering the  citizen, they  have  done      the act  of terrorist  and offence under      Section 5 of the said Act is committed.           C.I.D., I.B.  of Gujarat  State has      also reported  that due to this incident      and as  a reaction of this incident, the      enmity prevailing  in Saurashtra between      Darbar and Patel Community may intensify      and opposite  party,  i.e.,  Patels  may      also indulge in such activities.      Considering  the   situation  which  has      arisen permission may please be given to      invoke the  provisions of Sections 3 and      5 of the TADA in this matter.                                Sd/- in English                          District Police Superintendent                           Rajkot Rural, Camp at Gondal". 10.    The   Deputy  Director-General   of  Police  and  the Additional  Director-   General  of  Police  also  sent  FAX Messages  to  the  Chief  Secretary  on  18th  March,  1995, requesting him to grant the prayer of the DSP and permit him to proceed  under TADA.  On 18th March, 1995, the Additional Chief Secretary,  Home Department,  gave sanction/consent to apply provisions of TADA; and the District Superintendent of Police, Rajkot  Rural, was  informed accordingly.  There  is nothing in  the Act  to suggest  that the  Additional  Chief Secretary has  to grant  permission to  the District  Police Superintendent for proceeding under TADA. 11.    The   case  against  the  appellants  originally  was registered on  19th March,  1995 under the Arms Act. The DSP did not  give any  prior approval  on his  own to record any information about  the commission  of an offence under TADA. On the  contrary, he  made a  report to the Additional Chief Secretary and  asked for  permission to  proceed under TADA. Why?  was   it  because   he  was   reluctant  to   exercise jurisdiction vested  in him  by the provision of Section 20A (1)? This  is a  case of  power conferred upon one authority being really  exercised by another. If a statutory authority has been  vested with  jurisdiction, he  has to  exercise it according to  its  own  discretion.  If  the  discretion  is exercised under  the direction  or in  compliance with  some higher authority’s  instruction, then  it will  be a case of failure to  exercise discretion  altogether. In other words, the discretion vested in the DSP in this case by Section 20A (1) was not exercised by the DSP at all. 12.    Reference   may  be   made  in   this  connection  to Commissioner of  Police vs. Gordhandas Bhanji, 1952 SCR 135, in which  the action of Commissioner of Police in cancelling the permission granted to the respondent for construction of cinema  in  Greater  Bombay  at  the  behest  of  the  State Government was  not  upheld,  as  the  concerned  rules  had conferred this  power on  the Commissioner, because of which it was  stated that  the Commissioner  was bound to bear his

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own independent  and  unfettered  judgment  and  decide  the matter for  himself, instead  of forwarding  an order  which another authority had purported to pass. 13.    It   has  been   stated  by   Wade  and   Forsyth  in ’Administrative Law’, 7th Edition at pages 358 and 359 under the heading  ’SURRENDER,  ABDICATION,  DICTATION’  and  sub- heading "Power in the wrong hands" as below:-      "Closely   akin   to   delegation,   and      scarcely distingushable  from it in some      cases, is  any arrangement  by  which  a      power conferred upon one authority is in      substance  exercised   by  another.  The      proper authority  may  share  its  power      with some  one else,  or may  allow some      one else  to dictate  to it by declining      to  act  without  their  consent  or  by      submitting   to    their    wishes    or      instructions. The  effect then  is  that      the discretion  conferred by  parliament      is exercised,  at least  in part, by the      wrong  authority,   and  the   resulting      decision is  ultra vires  and  void.  So      strict are  the courts  in applying this      principle   that   they   condemn   some      administrative arrangements  which  must      seem quite  natural and  proper to those      who make them.....".           "Ministers  and  their  departments      have several  times fallen  foul of  the      same rule,  no doubt  equally  to  their      surprise....". 14.  The present  was thus a clear case of exercise of power on the  basis of external dictation. That the dictation came on the prayer of the DSP will not make any difference to the principle. The  DSP did not exercise the jurisdiction vested in him  by the  statute and  did not  grant approval  to the recording of  information under  TADA  in  exercise  of  his discretion. 15.   The  aforesaid is  however not  all.  Even  if  it  be accepted that  as an  additional safeguard against arbitrary exercise of the drastic provisions, the State Government had provided  by   administrative  instructions   an  additional safeguard where  under the  DSP was  required to  obtain the sanction/consent of the State Government, we are of the view that in  the present  case the  same was  given by the State Government without proper application of mind. We have taken this view  because the  sanction/consent was  given  by  the Government merely  on the  basis of  the FAX  message  dated 17.3.1995 of  the DSP.  The reason for our saying so is that though there  is on  record a FAX message of Deputy Director General of  Police  also,  which  is  dated  18.3.1995,  the sanction/ consent  order has mentioned above the FAX message of the  DSP only.  Now, no  doubt the  message of the DSP is quite exhaustive,  as would  appear from  that message which has been quoted above in full, we are inclined to think that before agreeing  to use  of harsh provisions of TADA against the appellants,  the Government  ought to  have  taken  some steps to  satisfy itself whether what had been stated by the DSP was  brone out  by the records, which apparently had not been called for in the present case, as the sanction/consent was given  post haste  on 18.3.1995, i.e., the very next day of the  message of  the DSP. It seems the DSP emphasised the political angle  in the first two paragraphs of his message. The dispute  or motive  stated was  that  the  Darbars  were annoyed because  they were  refused loan  and not because of

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any political  rivalry. In  the  third  paragraph  there  is reference to  statements of accused after arrest which would ordinarily be  inadmissible in  evidence. Reference to avoid incident of  the past  does not provide any nexus. The State Government gave  the sanction  without even  discussing  the matter with  the investigating officer and without assessing the situation  independently. All  these show lack of proper and due  application of  mind by  the State Government while giving sanction/consent. 16.   For  the aforesaid  twin reasons  we  state  that  the entire proceeding  against  the  appellants  under  TADA  is vitiated and  the same  is,  therefore,  quashed.  It  would however be  open to  the respondents  to proceed against the appellants even under the TADA in accordance with law. 17.   Insofar  as other  offence is  one under Section 25(1) (b) of  the Arms  Act is  concerned, no  contention has been advanced to  deny bail  to the  appellants.  We,  therefore, order the  release of  the two appellants on bail on each of them furnishing  a bond  of Rs.  10,000/- with one surety in the like  amount. The appellants shall observe the following conditions also after release on bail: (1)         They   shall  make   themselves  available   for interrogation by police as and when required. (2)        They  shall not  directly or  indirectly make any inducement, threat  or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to police. (3)        They shall not leave the State of Gujarat without the permission of the Designated Court. 18.   The appeal is allowed accordingly.