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CASE NO.: Appeal (crl.)  548 of 2007

PETITIONER: Harpal Singh

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 04/12/2007

BENCH: G.P. Mathur & G.S. Singhvi

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 548 OF 2007

 G. P. MATHUR, J.

       This Appeal has been preferred under Section 19 of the  Terrorist and Disruptive Activities (Prevention) Act, 1987 against the  judgment and order dated 16.3.2007 of Designated Court, Kapurthala  at Jalandhar in TADA Sessions Case No. 4 of 2006 by which the  appellant has been convicted under Section 5 of the Explosive  Substances Act, 1908 and has been sentenced to 5 years R.I. and a  fine of Rs.1,000/-. 2.      The case of the prosecution, in brief, is that on 12.3.1992  Kamaljit Singh, SHO, Santokh Singh, SI and some other police  personnel were going from village Kukar Pind to village Raipur in  connection with investigation of a case bearing FIR No. 31 under  Section 302/34 IPC, Section 25 Arms Act and Sections 3, 4 and 5 of  Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter  referred to as ’TADA’).  When they reached on Byen Bridge in  village Kukar Pind, they saw a person coming on foot.  On seeing the  police party he tried to run away but he was apprehended after a chase  and on inquiry he disclosed his name as Harpal Singh (appellant in  this appeal).  On his personal search explosive powder wrapped in a  glazed paper was recovered from the "jhola" (bag) which he was  having in his right hand.  The bag contained one kilogram explosive  powder which was taken into possession.  A ruka was sent to the  police station on the basis of which FIR was registered against the  appellant. 3.      After investigation and receipt of the sanction and report of the  Forensic Science Laboratory charge-sheet was submitted in the court  on 24.2.1994 for prosecution of the appellant under Sections 4, 5, and  9B(b) of the Explosives Act, 1884.  There was no mention of any  offence under TADA or under the Explosive Substances Act, 1908.   The charge-sheet was submitted in the Designated Court which took  cognizance of the offence and proceeded with the trial of the  appellant.  Ultimately the Designated Court acquitted the appellant for  the offences under TADA and the Explosives Act, 1884, but  convicted him only under Section 5 of the Explosive Substances Act,  1908 and sentenced him to 5 years R.I. and a fine of Rs.1,000/-. 4.      Shri Sushil Kumar, learned senior counsel for the appellant, has  submitted that the case against the appellant is not established from  the evidence adduced by the prosecution but instead of going into the  facts and appraisal of evidence the appeal can be allowed on a legal  ground. 5.      Part III of TADA deals with Designated Courts.  Sub-section

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(1) of Section 9 of TADA provides that the Central Government or a  State Government may, by notification in the Official Gazette,  constitute one or more Designated Courts for such area or areas, or for  such case or class or group of case as may be specified in the  notification.  Sub-section (1) of Section 11 of TADA lays down that  notwithstanding anything contained in the Code of Criminal  Procedure, every offence punishable under any provision of this Act  or any rule made thereunder shall be triable only by the Designated  Court within whose local jurisdiction it was committed or, as the case  may be, by the Designated Court constituted for trying such offence  under sub-section (1) of Section 9.  Sections 12 and 18 of TADA read  as under:-         "12.    Power of Designated Courts with respect  to other offences. - (1) 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 connected with such other  offence.          (2) If, in the course of any trial under this Act, of  any offence, it is found that the accused person has  committed any other offence under this Act or any rule  made thereunder or under any other law, the Designated  Court may convict such person of such other offence and  pass any sentence authorised by this Act or such rule or,  as the case may be, such other law, for the punishment  thereof."          "18. Power to transfer cases to regular courts. -  Where, after taking cognizance of any offence, a  Designated Court is of opinion that the offence is not  triable by it, shall, notwithstanding that it had no  jurisdiction to try such offence, transfer the case for the  trial of such offence 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."  

By Act No. 43 of 1993 Section 20-A was introduced in TADA with  effect from 22.5.1993 and the said section reads as under: - "20-A. Cognizance of offence. - (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."

Therefore, with effect from 22.5.1993, in view of sub-section (1) of  Section 20-A, no FIR about the commission of an offence under  TADA can be recorded by the police without prior approval of the  District Superintendent of Police.  Similarly on account of sub-section  (2) of Section 20-A no court can take cognizance of any offence under  TADA without the previous sanction of the Inspector General of  Police, or as the case may be, the Commissioner of Police.  The effect  of this amendment is that the Designated Court is debarred from  taking cognizance of any offence under TADA without the previous  sanction of the Inspector General of Police or, as the case may be, the  Commissioner of Police. 6.      As mentioned earlier, the alleged recovery of the incriminating  article from the appellant took place on 12.3.1992 and the case was  registered under Sections 4 and 5 of the Explosives Act, 1884.  The  police, after investigation, submitted charge-sheet before the

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Designated Court on 24.2.1994.  In the charge-sheet there was no  reference to any case under TADA or under the Explosive Substances  Act, 1908 against the appellant.  The appellant was granted bail in the  case under the Explosives Act on 1.7.1992.  Thereafter he went away  to USA and applied for political asylum.  He was declared as  absconder on 20.1.1995.  The US authorities deported him to India in  2006.  Thereafter the police submitted supplementary charge-sheet  against the appellant on 29.5.2006 for his prosecution under TADA  and the Explosive Substances Act.  The Designated Court thereafter  tried the appellant for offences under TADA besides Sections 4 and 5  of the Explosives Act and also under Sections 4 and 5 of the  Explosive Substances Act. 7.      The important feature which is to be noted is that the  prosecution did not obtain sanction of the Inspector General of Police  or of the Commissioner of Police for prosecution of the appellant  under TADA at any stage as is required by Section 20-A(2) of TADA.   The trial of the appellant before the Designated Court proceeded  without the sanction of the Inspector General of Police or the  Commissioner of Police.  In absence of previous sanction the  Designated Court had no jurisdiction to take cognizance of the offence  or to proceed with the trial of the appellant under TADA. 8.      The Designated Court, while trying an offence under TADA, is  undoubtedly empowered to try any other offence with which the  accused may, under the Code of Criminal Procedure, be charged at the  same trial if the offence is connected with such other offence in view  of Section 12 of TADA and may convict such person of such other  offence and may pass any sentence authorized by TADA or by such  other law for the punishment thereof.  But for application of Section  12 it is absolutely essential that the Designated Court should be trying  an offence under TADA.  If the Designated Court is not trying an  offence under TADA it will have no jurisdiction to try any other  offence.  Section 18 also points out the same situation which says that  where, after taking cognizance of any offence, a Designated Court is  of opinion that the offence is not triable by it, shall, notwithstanding  that it had no jurisdiction to try such offence, transfer the case for the  trial of such offence to any court having jurisdiction under the Code of  Criminal Procedure.  Thus the Designated Court gets the jurisdiction  to try any other offence only if it has the jurisdiction and is trying an  offence under TADA.  In Niranjan Singh Karam Singh Punjabi vs.  Jitendra Bhimraj Bijja and others AIR 1990 SC 1962, it was observed  as under: - "Section 12(1) no doubt 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 conclusion that there exists no sufficient ground for  framing a charge against the accused under S.3(1) 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, transfer the case for the  trial of such offence to any Court having jurisdiction  under the Code."

9.      At this stage it will be useful to refer to the dictionary meaning  of the word ’Jurisdiction’: -         Black’s Law Dictionary : "Court’s power to decide a case  or issue a decree".         Words and Phrases \026 Legally defined \026 Third Edition  (p.497) : "By ’jurisdiction’ is meant the authority which a  court has to decide matters that are litigated before it or

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to take cognizance of matters presented in a formal way  for its decision.  The limits of this authority are imposed  by the statute, charter, or commission under which the  court is constituted, and may be extended or restricted by  similar means.  If no restriction or limit is imposed the  jurisdiction is said to be unlimited.  A limitation may be  either as to the kind and nature of the actions and matters  of which the particular court has cognizance, or as to the  area over which the jurisdiction extends."         Law Lexicon by P. Ramanatha Aiyar \026 2nd Edn. Reprint  2000 : "An authority or power, which a man hath to do  justice in causes of complaint brought before him  (Tomlin’s Law Dic.).  The power to hear and determine  the particular case involved; the power of a Court or a  judge to entertain an action, petition, or other proceeding;  the legal power of hearing and determining controversies.   As applied to a particular claim or controversy,  jurisdiction is the power to hear and determine the  controversy."

Jurisdiction, therefore, means the authority or power to entertain, hear  and decide a case and to do justice in the case and determine the  controversy.  In absence of jurisdiction the court has no power to hear  and decide the matter and the order passed by it would be a nullity. 10.     As mentioned earlier, in the first charge-sheet which was filed  on 24.2.1994 there was no mention of TADA at all.  It was in the  supplementary charge-sheet filed on 29.5.2006 that the prosecution  introduced the offence under TADA.  But there was no sanction of the  Inspector General of Police or of the Commissioner of Police as  required under Section 20-A(2) of TADA and, therefore, the  Designated Court had no jurisdiction to take cognizance of the  offence.  Since the Designated Court lacked inherent jurisdiction to  try the offence under TADA it could not have tried the appellant even  for offences under the Explosive Substances Act, 1908 or the  Explosives Act, 1884.  Thus the conviction of the appellant under  Section 5 of the Explosive Substances Act, 1908 is illegal. 11.     The aforesaid view has also been taken by this Court in  Rambhai Nathabhai Gadhvi and others vs. State of Gujarat (1997) 7  SCC 744 and para 8 of the report is reproduced below: - "8.     Taking cognizance is the act which the Designated  Court has to perform and granting sanction is an act  which the sanctioning authority has to perform. Latter is  a condition precedent for the former. Sanction  contemplated in the sub-section is the permission to  prosecute a particular person for the offence or offences  under TADA. Sanction is not granted to the Designated  Court to take cognizance of the offence, but it is granted  to the prosecuting agency to approach the court  concerned for enabling it to take cognizance of the  offence and to proceed to trial against the persons  arraigned in the report. Thus a valid sanction is sine qua  non for enabling the prosecuting agency to approach the  court in order to enable the court to take cognizance of  the offence under TADA as disclosed in the report. The  corollary is that, if there was no valid sanction the  Designated Court gets no jurisdiction to try a case against  any person mentioned in the report as the court is  forbidden from taking cognizance of the offence without  such sanction. If the Designated Court has taken  cognizance of the offence without a valid sanction, such  action is without jurisdiction and any proceedings  adopted thereunder will also be without jurisdiction."  

12.     In view of the discussion made above there cannot be any  escape from the conclusion that the Designated Court had no

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jurisdiction to try and convict the appellant under the Explosive  Substances Act, 1908 in view of the fact that it could not have taken  cognizance of the offence under TADA for lack of sanction by the  competent authority under Section 20-A(2) of TADA.  In view of the  fact that the Designated Court could not try the offence under TADA  being debarred from taking cognizance thereof on account of want of  sanction by the competent authority under the mandatory provisions  of Section 20-A(2), it could not try any offence under any other Act as  well. 13.     The appeal is accordingly allowed and the conviction of the  appellant under Section 5 of the Explosive Substances Act and the  sentence imposed thereunder are set aside.  The appellant shall be  released forthwith unless wanted in some other case.