REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1018 OF 2007  

Ganesh Gogoi .....Appellant(s)

- Versus -

State of Assam ....Respondent(s)

J U D G M E N T

GANGULY, J.

1. This  appeal  has  been  filed  under  Section  

19(1)  of  the  Terrorist  and  Disruptive  

Activities (Prevention) Act, 1987 (hereinafter  

referred to as the ‘TADA(P) Act’) impugning  

the  judgment  dated  11.7.2007  passed  by  the  

learned Designated Court, Assam, Guwahati in  

Sessions  Case  No.  68  of  2001  whereby  the  

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appellant has been convicted by the learned  

Judge of the Designated Court under Section  

3(2)(i)  TADA(P)  Act  and  was  sentenced  to  

undergo  imprisonment  for  life  and  to  pay  a  

fine  of  Rs.2000/-  in  default  further  

imprisonment for six months.

2. On the benefit of doubt being extended, the  

other  accused,  namely,  Premodhar  Gogoi  was  

acquitted.

3. The material facts of the case as alleged by  

the prosecution are that on 2.9.1991 at about  

7.30 a.m., Sub-Inspector B. Kalita, who was  

in-charge of Naohalia Out Police Post informed  

the Office-in-Charge of Bordubi Police Station  

over telephone that on the previous day i.e.  

on 1.9.1991 at about 7.30 p.m. one Dinanath  

Agarwalla Naohalia was taken away in a Maruti  

car  by  some  unknown  persons  and  this  

information  was  entered  vide  General  Diary  

Entry No. 19 dated 2.9.1991.

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4. Thereafter,  Prabhat  Gogoi,  Officer-in-Charge  

along  with  his  staff  reached  the  place  of  

occurrence for investigation and subsequently  

an FIR was lodged by him.

5. On  conclusion  of  the  investigation,  charge-

sheet dated 25.9.2001 was filed under Sections  

365/302/34 of the Indian Penal Code read with  

Sections  3(2)(i)  and  3(5)  of  the  TADA  (P)

Act against the appellant and Premodhar Gogoi.

6. Thereafter,  on  10.1.2003,  the  learned  

Designated Court, Assam framed charges against  

the appellant under Section 302 of the Indian  

Penal  Code  and  Section  3(5)  of  the  TADA(P)  

Act. In the Trial evidence was adduced and the  

appellant was examined under Section 313 of  

the Code of Criminal Procedure and ultimately  

by the impugned judgment dated 11.7.2007 the  

appellant  was  convicted  by  the  learned  

Designated Court under Section 3(2)(i) of the  

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TADA(P)  Act  and  was  sentenced  as  stated  

hereinabove.

7. Mr.  P.K.  Ghosh,  learned  senior  counsel  

appearing  on  behalf  of  the  appellant  while  

assailing the judgment under appeal advanced  

various submissions.

8. His  first  submission  is  that  there  is  no  

evidence which can connect the appellant with  

the  alleged  incident  and,  therefore,  the  

judgment  of  the  learned  Judge  of  the  

Designated  Court  is  wholly  unsustainable  in  

law.  Learned  Counsel  further  submitted  that  

apart  from  the  aforesaid  infirmity  the  

appellant  has  been  convicted  only  under  

Section 3(2)(i) of TADA(P) Act whereas he has  

not been charged under that Section at all.

9. Learned Counsel submitted that in view of the  

charge  which  has  been  framed,  he  could  not  

have been convicted under Section 3(5) of the  

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TADA(P) Act. He submitted that a charge under  

Section  3(2)(i)  and  a  charge  under  Section  

3(5) of the TADA(P) Act are different charges  

and one is not encompassed by the other. His  

further submission is that admittedly Section  

3(5) of the TADA(P) Act has been inserted in  

the statute book in 1993 by Section 4 of Act  

43 of 1993.

10. The incident, as alleged by the prosecution,  

had taken place in September 1991. Therefore,  

the  appellant  cannot  be  charged  for  having  

committed  an  offence  which  was  not  in  

existence on the day of alleged commission but  

was brought into the statute much later.

11. This appeal has been filed before this Court  

under Section 19(1) of the TADA(P) Act which  

provides for an appeal both on facts and on  

law  and this Court being the First Appellate  

Court is entitled to look into the evidence on  

record.  Section 19(1) reads as under:       

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“19. Appeal – (1) Notwithstanding anything  contained in the Code, an appeal shall lie  as a matter of right from any judgment,  sentence  or  order,  not  being  an  interlocutory order, of a Designated Court  to the Supreme Court both on facts and on  law.

12. In this case from the impugned judgment it is  

clear  that  there  is  no  direct  evidence  but  

there  is  only  circumstantial  evidence  (see  

para 20 of the impugned judgment).

13. From paragraph 3 of the impugned judgment, it  

appears  that  the  prosecution  examined  ten  

witnesses.

14. P.W.1 – Dharam Chand Agarwalla is the brother  

of the deceased. He is not an eye witness. He  

was informed by his mother about the missing  

of his elder brother Dinanath Agarwalla and  

his  evidence  is  that  he  does  not  know  who  

kidnapped Dinanath Agarwalla from their house  

on the material day and killed him. Therefore,  

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the  evidence  of  P.W.1  is  that  his  elder  

brother was kidnapped from their house.

15. But the evidence of the prosecution is that  

Dinanath Agarwalla was kidnapped from the pan  

shop of Narayan Dey (P.W.2).

16. P.W.2- Narayan Dey in his evidence stated that  

police  took  his  signatures  on  a  prepared  

statement to the effect that the deceased was  

killed on the previous day though he had no  

knowledge  about  the  killing  of  Dinanath  

Agarwalla. P.W.2 was declared hostile and was  

cross-examined  by  the  prosecution.  In  his  

cross-examination  also  he  stuck  to  his  

evidence  given  in  Examination-in-Chief.  In  

cross-examination he deposed that he did not  

state before the I.O. that Dinanath came to  

his shop for taking pan and one Maruti car  

arrived  near  his  shop  and  accused  persons  

while  coming  out  of  the  car  had  some  

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discussion with Dinanath and he was taken in  

the car which was driven towards Madhuting.

17. P.W.3-  Sushil  Mazumdar  was  also  declared  

hostile and he stated in Chief that Police did  

not record any statement from him in regard to  

the death of the deceased. He was similarly  

cross-examined by the Police and in the cross-

examination  also  he  stuck  to  his  original  

statement and made it very clear that he did  

not see the appellant and the other accused  

person kidnapping the deceased from the pan  

shop of Narayan Dey.

18. P.W.4-  Joyram  Das  is  a  police  officer.  He  

deposed that on 17.8.1992 he was working as an  

Office in-charge at Borubi Police Station.  He  

deposed that he took over the investigation  

and arrested one of the accused persons and  

from his interrogation came to know that on  

the  alleged  date  of  occurrence  Dinanath  

Agarwalla  was  kidnapped  by  the  present  

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appellant.   In  cross-examination  P.W.4  

admitted that he did not send Premodhar Gogoi  

to any Magistrate for recording his statement.  

It  appears  from  the  so  called  statement  of  

Premodhar Gogoi that the same is not at all  

admissible having been made before a police  

officer while in custody and in the course of  

alleged interrogation.  Therefore, it has been  

rightly contended by the learned counsel for  

the appellant that the deposition of P.W.4 is  

not admissible in evidence.

19. P.W.5 is one Bibhusan Gogoi.  He had merely  

seen the dead body of victim fastened by rope  

and he was informed by another person that the  

name of the deceased is Dinanath Agarwalla.  

He  is  not  a  material  witness  at  all.   He  

categorically stated that he did not know who  

had killed the Dinanath, the victim.   

20. P.W.6-Suresh  Kr.  Agarwalla  is  also  not  a  

material witness.  He merely identified the  

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dead body of Dinanath and merely deposed that  

the hands and feet of dead body were tied with  

a rope and the rope was seized by the police  

and he signed the said document of seizure.

21. P.W.7-Prabhat Gogoi is another police officer.  

He initially took up the investigation and he  

recorded  the  statements  of  witnesses  Dharam  

Chand Agarwalla and Sushil Mazumdar but they  

have not been examined in Court.  He claimed  

to have filed the FIR.  In cross-examination  

P.W.7  deposed  that  in  the  FIR  he  has  not  

specifically mentioned the involvement of the  

appellant in the aforesaid incident.  He did  

not mention anything about the statement of  

witness Sushil Mazumdar.  The FIR was recorded  

by  the  P.W.7  in  this  case  “during  

investigation”.  However, in the course of his  

evidence P.W.7 never stated anything about the  

appellant  being  a  member  of  the  United  

Liberation Front of Assam.  In the FIR it has  

clearly  been  stated  “that  investigation  has  

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already been taken up by me.  The certified  

copy of G.D.E. No.19 is enclosed herewith.”   

22. It  is  clear  from  the  aforesaid  statement,  

investigation  in  the  case  had  already  

commenced and once investigation commences the  

FIR is hit by Section 162 Cr.P.C. and no value  

can be attached to the same.

23. P.W.8- Satyaraj Hazarika merely deposed that  

he  submitted  the  prayer  for  accord  of  

necessary  prosecution  sanction  to  the  then  

D.G.P of Assam and he also filed certain other  

documents.  He is not a material witness at  

all.   

24. P.W.9  is  Dr.  N.  Sonowal,  who  conducted  

postmortem on the dead body of the victim.   

25. P.W.10-  Bipulananda  Choudhury  is  another  

police  officer,  who  obtained  sanction  from  

D.G.P  Assam  and  submitted  the  charge  sheet  

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against the accused persons.  He is also not a  

material witness.

26. From the above discussions, this Court finds  

that  there  is  no  evidence  to  connect  the  

appellant with the alleged incident of killing  

of the victim.   

27. Apart  from  that  this  Court  finds  that  in  

Section  313  Cr.P.C.  examination  of  the  

accused-appellant,  the  Court  has  put  a  

question  which  is  totally  unfair.   Three  

questions  were  put  to  the  appellant.   The  

second question is as follows:-

“Q. No.2 The witnesses deposed that you are a  member of ULFA?”

28. It  does  not  appear  that  any  witness  has  

deposed  that  the  appellant  is  a  member  of  

ULFA.   Therefore,  it  is  a  very  unfair  

question. This Court has allegedly convicted  

the appellant under Section 3(2)(i) but the  

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ingredients of the Section 3(2)(i) were not  

been put to him.  Therefore, there has not  

been a fair examination under Section 313 of  

the Cr.P.C. at all.  The provisions of Section  

313 are for the benefit of the accused and are  

there to give the accused an opportunity to  

explain  the  “circumstances  appearing  in  the  

evidence against him”.  In Basavaraj R. Patil  & others Vs.  State of Karnataka & others –  (2000) 8 SCC 740, this Court held that those  

provisions are not meant to nail the accused  

to  his  disadvantage  but  are  meant  for  his  

benefit.  These provisions are based on the  

salutary principles of natural justice and the  

maxim ‘audi alteram partem’ has been enshrined  

in  them.   Therefore,  the  examination  under  

Section 313 has to be of utmost fairness.  But  

that has not been done here.  This is also a  

factor vitiating the trial.  

29. It appears that in the instant case the charge  

which  was  framed  by  the  Court  against  the  

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appellant was under Section 3(5) of the said  

Act.  But such a charge could not have been  

framed against him by the Court in as much as  

on  the  alleged  date  of  occurrence,  i.e.  in  

September 1991, Section 3(5) of the Act was  

not brought on the statute.  The framing of  

the  charge  was  thus  inherently  defective.  

However the appellant has been convicted only  

under Section 3(2)(i).  Section 3(2)(i) reads  

as follows:-

“3(2)   Whoever  commits  a  terrorist  act,  shall, -

(i) If such act has resulted in the death of  any  person,  be  punishable  with  death  or  imprisonment  for  life  and  shall  also  be  liable to fine.”

30. On  perusal  of  the  provision  of  Section  

3(2)(i), it is clear that Section 3(2)(i) has  

to be read with Section 3(1).  Section 3(1) is  

set out herein below:-

“3.   Punishment  for  terrorist  acts.  –  (1)  Whoever with intent to overawe the Government  as by law established or to strike terror in  

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the people or any section of the people or to  alienate  any  section  of  the  people  or  to  adversely affect the harmony amongst different  sections of the people does any act or thing by  using  bombs,  dynamite  or  other  explosive  substances or inflammable substances or fire- arms  or  other  lethal  weapons  or  poisons  or  noxious  gases  or  other  chemicals  or  by  any  other  substances  (whether  biological  or  otherwise)  of  a  hazardous  nature  in  such  a  manner as to cause, or as is likely to cause,  death of, or injuries to, any person or persons  or loss of, or damage to, or destruction of,  property  or  disruption  of  any  supplies  or  services  essential  to  the  life  of  the  community, or detains any person and threatens  to  kill  or  injure  such  person  in  order  to  compel the Government or any other person to do  or  abstain  from  doing  any  act,  commits  a  terrorist act.”

31. The  provision  of  Section  3(1)  has  been  

construed by this Court in several cases and  

reference in this connection may be made to  

the  decision  of  Hitendra  Vishnu  Thakur  and  others Vs.  State of Maharashtra and others –  (1994)  4  SCC  602,  wherein  learned  judges  

explained the ambit of a terrorist act which  

has not been defined in detail under TADA(P)  

Act.  Sub-section (h) of Section 2 of the Act  

defines ‘terrorist act’ to mean the same thing  

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as  assigned  to  it  in  sub-section  (i)  of  

Section 3.   

32. Section 3(1) of the said Act is therefore very  

vital for understanding the true meaning and  

purport of terrorist acts.  In paragraph 5 of  

Hitendra Vishnu Thakur (supra), at page 617 of  the  report,  Dr.  Justice  A.S.  Anand  (as  His  

Lordship  then  was)  analysed  Section  3  as  

follows:-

“5.  Section 3 when analysed would show that  whoever  with  intent (i)  to  overawe  the Government as by law established; 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 things by using  (a) bombs  or  dynamite,  or  (b)  other  explosive substances, or (c) inflammable substances, or (d) firearms, or (e) other lethal weapons, or (f)  poisons  or  noxious  gases  or  other chemicals, or (g) any other substances (whether biological or otherwise) of a hazardous nature  in such a manner as to cause or as is likely  to cause (i) death, or (ii) injuries to any person or persons, (iii) loss of or damage to or destruction of property, or (iv) disruption of any supplies or services essential to the life  of  the  community,  or  (v)  detains  any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a ‘terrorist act’ punishable under Section 3 of TADA.”

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33. It is clear from the perusal of Section 3 and  

its interpretation in  Hitendra Vishnu Thakur  (supra) that the requisite intention is the  

sine  qua  non of  terrorist  activity.   That  

intention is totally missing in this case.  It  

is not there in the charge and it has also not  

come  in  the  evidence.   Therefore,  both  the  

framing of charges against the appellant under  

Section 3(5) and his conviction under Section  

3(2)(i)  of the said Act are totally bad in  

law.

34. In  Hitendra Vishnu Thakur (supra) the Court  has made it clear that in many cases criminal  

activities constituting the terrorist act may  

also be an offence under the ordinary penal  

law.  Therefore before framing a charge under  

the stringent provisions of TADA(P) Act the  

Court has to be very careful.  In view of  

seriousness of the offence alleged under the  

stringent  provisions  of  the  said  Act,  this  

Court  in  Hitendra  Vishnu  Thakur (supra)  

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(paragraph  14  at  page  623  of  the  report),  

explained the Court’s duty in very explicit  

terms and which I quote:-

“14.  ...An onerous duty is therefore cast  on  the  Designated  Courts  to  take  extra  care  to  scrutinise  the  material  on  the  record  and  apply  their  mind  to  the  evidence and documents available with the  investigating  agency  before  charge- sheeting an accused for an offence under  TADA. The stringent provisions of the Act  coupled  with  the  enhanced  punishment  prescribed for the offences under the Act  make the task of the Designated Court even  more  onerous,  because  the  graver  the  offence, greater should be the care taken  to see that the offence must strictly fall  within the four corners of the Act before  a  charge  is  framed  against  an  accused  person. Where the Designated Court without  as much as even finding a prima facie case  on  the  basis  of  the  material  on  the  record,  proceeds  to  charge-sheet  an  accused  under  any  of  the  provisions  of  TADA,  merely  on  the  statement  of  the  investigating agency, it acts merely as a  post  office  of  the  investigating  agency  and does more harm to meet the challenge  arising out of the ‘terrorist’ activities  rather  than  deterring  terrorist  activities. The remedy in such cases would  be worse than the disease itself and the  charge against the State of misusing the  provisions  of  TADA  would  gain  acceptability, which would be bad both for  the criminal and the society. Therefore,  it is the obligation of the investigating  agency  to  satisfy the  Designated  Court  from the material collected by it during  the investigation, and not merely by the  opinion formed  by  the  investigating  agency,  that  the  activity  of  the  ‘terrorist’  falls  strictly  within  the  

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parameters  of  the  provisions  of  TADA  before seeking to charge-sheet an accused  under  TADA.  The  Designated  Court  must  record  its  satisfaction  about  the  existence  of  a  prima  facie  case  on  the  basis of the material on the record before  it  proceeds  to  frame  a  charge-sheet  against an accused for offences covered by  TADA.  Even  after  an  accused  has  been  charge-sheeted for an offence under TADA  and the prosecution leads evidence in the  case,  it  is  an  obligation  of  the  Designated  Court  to  take  extra  care  to  examine the evidence with a view to find  out  whether  the  provisions  of  the  Act  apply  or  not.  The  Designated  Court  is,  therefore,  expected  to  carefully  examine  the evidence and after analysing the same  come  to  a  firm  conclusion  that  the  evidence  led  by  the  prosecution  has  established that the case of the accused  falls strictly within the four corners of  the  Act  before  recording  a  conviction  against an accused under TADA.”

35. In the instant case the Designated Court has  

failed  in  its  duty  both  in  the  matter  of  

application of mind to the materials on record  

at the stage of framing of charge and also at  

the time of convicting the appellant.   

36. This Court is, therefore, of the clear opinion  

that  in  the  facts  of  the  case  no  charge  

against the accused under the said Act could  

be framed, consequently he cannot be convicted  19

under the provisions of the said Act.  In any  

way in the instant case as discussed above,  

there is no evidence to connect the appellant  

with  the  alleged  incident.   Therefore,  the  

judgment and order of conviction is totally  

unsustainable in law and is set aside.  The  

appeal succeeds and the appellant be set at  

liberty  forthwith  if  he  is  not  wanted  in  

connection with any other case.  

.......................J. (DALVEER BHANDARI)

.......................J. New Delhi (ASOK KUMAR GANGULY) July 7, 2009

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